PAUL ANTHONY TYRER v. SAFE MARGIN INVESTMENTS LTD.

IN THE COURT OF APPEAL

1996, No. 24
(Civil)

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J U D G M E N T

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Ching, J.A. :

1. The Plaintiff, who is the Respondent in this Court, brought proceedings against the Defendant in the District Court. The Plaintiff gave evidence himself and called no other witnesses. The Defendant called its managing director, Mr. Francis Wong, and the manager of its Shatin branch, Mr. Stoney Chan. The Judge accepted the Plaintiff's version of events as being reliable and rejected those of Mr. Wong and Mr. Chan where they differed from that of the Plaintiff. She gave judgment for the Plaintiff in the sum of HK$74,920.00 with interest and costs. Leave was given to the Defendant to appeal and that appeal has now come before us.

2. The Defendant is a limited company incorporated in Hong Kong which carries on business as a leveraged foreign exchange trader. Mr. Chan had known the Plaintiff for some years. He knew that the Plaintiff had studied law and at one time had been a part-time lecturer in law at the University of Hong Kong. Mr. Wong admitted that he knew that the Plaintiff was a lawyer. At the material time the Plaintiff was not in practice but was acting as what may be described as a consultant on various matters. In June of 1994 Mr. Chan saw the Plaintiff on an urgent basis for assistance on a matter which does not concern this Court and was told that the Plaintiff charged US$500 per hour for his services. Subsequently Mr. Wong saw the Plaintiff and his remuneration was discussed. So far as that transaction was concerned the Plaintiff was to take a part of the commission earned by the Defendant but the transaction never materialised. Mr. Chan admitted that he had introduced the Plaintiff to Mr. Wong because he thought that the Plaintiff would be able to benefit the Defendant.

3. On 15th July, 1994, the Plaintiff was again approached by Mr. Chan. Mr. Wong was concerned about what effect the Leveraged Exchange Trading Ordinance, which was to come into effect in September of the same year, would have on the Defendant's business. By that Ordinance a company such as the Defendant would need a capital of $30,000,000 which the Defendant could not raise. An alternative was to set up a trading company out of Hong Kong with the Defendant acting only as an introductory agent. The first meeting was obviously an exploratory one and it is material to note only two points. First, Mr. Wong asked the Plaintiff and was told by him what his areas of expertise were. They included corporate management consultancy including taxation, trade, company law of an international nature and acting as a corporate strategist. These were the services which he eventually supplied. Secondly, Mr. Wong asked the Plaintiff what his charges were and was told that they were US$500 per hour. On 2nd August, 1994, Mr. Chan telephoned and asked the Plaintiff whether he was willing to help on the legislation and was told that he was. There then followed numerous meetings from which it is clear that the Plaintiff and the Defendant entered into a contractual relationship. The Judge below so found and there is no appeal against that finding.

4. The Plaintiff claims that he spent 22 hours working on the questions put to him. At an exchange rate of HK$7.72 to the American dollar this amounted to HK$84,920.00. At one of the meetings, however, the Plaintiff had been given a personal cheque of Mr. Chan for HK$10,000. The Judge found that this was a payment on account of fees or retainer and again there is no appeal against that finding. The Plaintiff therefore gave credit for that sum and claimed for the balance of HK$74,920.00.

5. This appeal relates only to the basis of the quantum of the Plaintiff's fees. The Judge said,

"There is no stipulation of the amount to be paid by the Defendant in respect of the Plaintiff's services. The Plaintiff had mentioned to both Mr. Wong and Mr. Chan the hourly rate he was charging in his consultancy business namely that he was charging an hourly rate of US$500 per hour."

It is clear that by the word "stipulation" the Judge did not mean that the Plaintiff did not stipulate his fees. She found as a fact that he did so. What she appears to have meant is that there was no express agreement by the Defendant to pay fees at that rate, for earlier in her judgment she said,

"For instance there is no allegation by the Plaintiff of an express term on the part of the Defendant to pay fees to the Plaintiff for the advice at a certain rate."

Unfortunately, she embarked upon a consideration of what have been called "incomplete contracts", the implication of terms and the payment of a reasonable amount under the Supply of Goods and Services Act 1982 and the Supply of Goods (Implied Terms) Ordinance. The Defendant rightly complains that the first of these pieces of legislation has no application in Hong Kong while the second was not in force at the material time.

6. On the basis already set out the Judge found that the rate of US$500 per hour was reasonable and remarked that there was nothing in the Defence as to the reasonableness of the Plaintiff's bill. The Defendant complains, again rightly, that there was nothing in the Defence about this because there was nothing in the Particulars of Claim raising a quantum meruit. Although that is right, there is no merit in the Defendant's appeal. The Judge's line of reasoning in this respect was wholly unnecessary as well as being misguided. It is clear that the Plaintiff quoted his fees. There is no evidence that the Defendant ever tried to negotiate them or questioned them in any way until after the bill had been delivered. The hourly rate having been quoted, the Defendant proceeded to use the services of the Plaintiff and on two occasions Mr. Chan asked the Plaintiff to submit his bill. The Judge found that the Defendant must have expected that it would have to pay for those services and the matter is very simple. In all of the circumstances the Defendant by its conduct must have agreed to the Plaintiff charging the hourly rate as quoted. This forms part of the Respondent's notice which must therefore succeed to that extent.

7. The appeal must therefore be dismissed.

Godfrey, J.A. :

8. I agree with my Lord, Ching, J.A. that this appeal must be dismissed for the reasons which he gives.

Nazareth, V.-P. :

9. I also agree. This appeal is accordingly dismissed.