HAYMARKET MEDIA LTD v. CHINA KNOWLEDGE PRESS PTE LTD

DCCJ 2115 of 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 2115 OF 2008

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J U D G M E N T

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A. INTRODUCTION

1. The Plaintiff claims against the Defendant for sponsorship fees in the total sum of US$31,250.00 in accordance with two sponsorship agreements dated 12^th June 2006 and 31^st August 2006 respectively. The Defendant contended that before or at the time of the said agreements, one Marzena Kalbarczyk (“Ms. Kalbarczyk”) and/or one other female of Plaintiff made two sets of representations or promises to Mr. Charles Chaw (“Mr. Chaw”) of the Defendant. Firstly, she promised that after the 1^st and 2^nd sponsorship events, the Defendant would be provided with all the guests’ contact information such as telephone numbers, mailing addresses or e-mail addresses (“Database”). Secondly, before or at the time of the 2^nd sponsorship agreement, Ms. Kalbarczyk promised that the Plaintiff would provide branded spirits like Heisick Piper champagne with unlimited quantity during the 2^nd sponsorship event. The representations or promises induced Mr. Chaw to enter into the Agreements. The representations were untrue and the end or the promises were not honored. In essence, the Defendant pleaded misrepresentations and the breach of the collateral agreements.

2. The main issue for determination at trial is whether Ms. Kalbarczyk made the said representations or promises to Mr. Chaw before or at the time of the agreements. The ultimate question is one of credibility.

B. BACKGROUND & ADMITTED FACTS

3. The Plaintiff is a Hong Kong company carrying on the business of public relations, marketing and event management. The Defendant is a company incorporated in Singapore carrying on the business of printing information books and compiling data.

4. The Plaintiff and the Defendant entered into an agreement in writing dated 12^th June 2006. The Defendant agreed to sponsor, in the sum of US$7,500.00 for the event known as Asian Marketing Effectiveness Awards 2006 to be held on 28^th June 2006 in return for the sponsorship package (“1^st Event”). The sponsorship package includes:-

“-Recognition as event sponsor-branding (logo) on all pre-event promotional materials from sign up including advertising and email blasts;

-Branding (logo) at pre-event cocktail in the form of a table to meet and greet guests or staff;

-Invite as VIP guests with a table of 10 at the event;

- Branding (logo) on stage backdrop at the event;

-Prize presentation by your representative to winners of your sponsored category;

-Full page full colour advertisement in Awards Book of the Night, distributed to all attendees and sent to Media’s full circulation post-event;

-Mention as sponsor in post-event pictorial coverage;

-Branding (logo) and 50 word company profile in Awards Book of the Night.

-… a free loose insert to run to Media’s circulation within any issue of their choice over 2600 (max. weight 10gms)”

5. The above is collectively referred to as the 1^st Agreement. The 1^st Event took place on 28^th June 2006 and the Plaintiff has provided all sponsorship benefits to the Defendant.

6. By another agreement dated 31^st August 2006, signed and accepted by the Defendant on 5^th September 2006, the Defendant agreed to sponsor, in the sum of US$23,750.00 for the event known as Agency of the Year Awards 2006 to be held on 13^th December 2006 in return for the sponsorship package (“2^nd Event”). The sponsorship package was similar to those under the 1^st Agreement (“2^nd Agreement”).

7. The 2^nd Event took place on 13^th December 2006 and the Plaintiff has provided all sponsorship benefits to the Defendant.

8. The principal defence of the Defendant is that before or at the time of the 1^st Agreement, Ms. Kalbarczyk promised to provide the Database to the Defendant. The same equally applies to the 2^nd Agreement. In addition, the Defendant contended that before or at the time of the 2^nd Agreement, Ms. Kalbarczyk promised that there would be unlimited supply of branded spirits during the 2^nd event such as Heisick Piper champagne. The Defendant alleged that those promises either formed collateral agreements or as an inducement to cause Mr. Chaw to enter into the 1^st and 2^nd Agreements.

9. It is undisputed that the alleged promises were not mentioned in the 1^st and 2^nd Agreements. It is also undisputed that the Defendant received all the stipulated sponsorship benefits pursuant to the 1^st and 2^nd Agreements.

C. EVIDENCE

10. The Plaintiff called Ms. Kalbarczyk to testify while Mr. Chaw testified for the Defendant.

11. Ms. Kalbarczyk’s relevant evidence is summarised as follows:-

(1) She worked for the Plaintiff as the sponsorship manager from early June 2006 to December 2007. Although the 1^st Agreement was entered into by her colleague, Mr. Paul Frazer (“Mr. Frazer”), she met Mr. Chaw during the 1^st Event and testified as to how the Defendant’s logo and “get up” was advertised during the event pursuant to the 1^st Agreement.

(2) In or about July to early August 2006, she negotiated with Mr. Chaw regarding the sponsorship of the 2^nd Event. During the discussion, she mentioned that the Plaintiff might get some beverage sponsorship for the after show party. Mr. Chaw also mentioned that he might be able to get some beverage sponsorship for the 2^nd Event. After that, there was no agreement or further discussion and the topic of beverage sponsorship was never part of the 2^nd Agreement.

(3) She referred to the lists of the attendees of both events and stated that the Defendant got the list of attendees with name and the company with whom they worked. She could not possibly release the personal contact information as they involved personal data without the subjects’ consent. After all, the contact information was never part of the contract.

(4) Both the 1^st and 2^nd Events were held successfully. The Defendant also received all the sponsorship benefits from the events.

(5) She met Mr. Chaw in about the end of March 2007 and she was told by Mr. Chaw that the feedback he received from staff and guests of the Defendant were all positive. The Plaintiff started to chase the Defendant for payment on 19^th March 2007 and 17^th April 2007. The Defendant did not raise the issue of beverage sponsorship and Database until about 8^th May 2007 that one Mandy Li of the Defendant raised it through an e-mail. Her colleague Ms. Nicola Clarke replied on 9^th May 2007 protesting against the belated allegations to refuse payment.

(6) During cross-examination, she corrected that the occasion where she met Mr. Chaw in June 2006 regarding the negotiation of the sponsorship, Mr. Frazer might not be there.

12. Mr. Chaw’s relevant evidence is summarised as follows:-

(1) He stressed that the Defendant is a major company carrying on professional publishing business with focus in China. It also organizes event and exhibitions. Their function was attended by the President of Republic of Singapore. As a result, to build up their business contacts, contact information of guests or potential clients is very important to them.

(2) He mentioned an unhappy experience well before the 1^st and 2^nd Events that took place in Shanghai 2005. The Plaintiff allegedly promised to assist distribution of the Defendant’s book “Branding in China” during the event and the promise was not materialized. Consequently, the Plaintiff promised to provide a list of attendees’ contact information after the event but again, the said promise was not honoured.

(3) Before or at the time of the 1^st and 2^nd Agreements, he made known to Ms. Kalbarczyk and one other female officer that it was imperative to have all Database and the Plaintiff’s officers agreed to his request. Unlimited supply of branded spirits was also promised before or at the time of the 2^nd Agreement. In his witness statement, he mentioned such branded spirits as “Moet & Chandon” champagne while he mentioned “Heisick Piper” champagne in his pleading.

D. DISCUSSION

13. Regarding the issue of credibility, I found that Ms. Kalbarczyk is a credible and honest witness. I prefer and accept her evidence on the central issue in so far as it conflicts with the defence case or the evidence of defence witness. She gave evidence in a straightforward and frank manner, and was hardly challenged or shaken under cross-examination. Her answers are spontaneous and unbiased. Although in her witness statement she did mention an occasion in June 2006 where she met Mr. Chaw when her colleague Mr. Frazer was also there, and she corrected during cross-examination that Mr. Frazer might not be there. She made a mistake on that. The mistake was not material to the central issue of this case. I do not consider this mistake is sufficient to outweigh my findings on her credibility.

14. In contrast, the Defendant gave evidence in an extremely evasive manner. Whenever simple but material questions were posed to him as to the details of the alleged promises such as approximate date, by whom, to whom and the exact wordings, he evaded the questions by saying words to the effect his company was a big company, he needed to manage many staffs. Similar phenomena could be seen when again simple but material questions were posed to him such as: (i) if the Plaintiff was in breach of the promise in 2005, why did he agree to enter into the 1^st Agreement; (ii) if the Plaintiff was in breach of the promise regarding the 1^st Agreement, why did he agree to enter into the 2^nd Agreement. He again stressed that how famous and successful was his company. In gist, he gave long and convoluted answers to simple questions.

15. Moreover, there is no gainsaying that on some essential matters, his evidence changed and is out of common sense and logic. When he came to know that Mr. Frazer would not be called as a witness, he attempted to shift the attack from Ms. Kalbarczyk to Mr. Frazer by saying that in failing to call Mr. Frazer, the Plaintiff could not rebut what he said, bearing in mind his pleadings and witness statements reflected that his allegations pinpointed on Ms. Kalbarczyk, not Mr. Frazer.

16. Mr. Chaw emphasized that he is “credible in China”, he often appeared in the television documentary programme with more than 30,000 viewers. His book “Branding in China” was popular. I considered his self-assessment as if he considered himself as a successful businessman. If he is so experienced and successful and had the Plaintiff been in breach of the material and important promises from time to time, why was he willing to enter into the agreements with the Plaintiff from time to time? Had the Plaintiff been in breach of the material and important promises from time to time, why didn’t he request the alleged promise be put into writing before accepting the 1^st and 2^nd Agreements? He simply could not answer these questions except stressing how successful he and his company was.

17. In summary, on the main issue, I found that the Plaintiff, whether she be Ms. Kalbarczyk or anyone from the Plaintiff, did not make the promises or representations as alleged.

E. CONCLUSION

18. By reason of the matters aforesaid, judgment shall be given for the Plaintiff.

F. ORDERS

19. I hereby give the following orders:-

(1) Judgment be given for the Plaintiff. The Defendant do pay to the Plaintiff the sum of US$31,250;

(2) Intereston the said sum at half judgment rate from the date of writ to the date of judgment, thereafter at full judgment rate until full payment;

(3) Costs order nisi that the Defendant do pay the costs of the action to the Plaintiff with certificate for counsel to be taxed if not agreed. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute 14 days from today.