XCHRX OVERSEAS CALLING CLUB LTD. v. WEEKS, MURNIE ELWOOD AND ANOTHERS

HCSA 3/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 3 OF 2000

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO. SCTC 32031 OF 1999)

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DECISION

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1. This is an application for leave to appeal against the award made by the Adjudicator of the Small Claims Tribunal on 19 January 2000, directing that the consent order of the Tribunal dated 3 December 1999 do stand. At the conclusion of the hearing, I dismissed the application and gave brief oral reasons for the same. I now reduce the reasons into writing.

The Background

2. The claim in the Small Claims Tribunal is for the sum of $13,662.50, being the total amount of 2 cheques drawn by the defendants in favour of the claimant. The defendants denied liability for the cheques and counterclaimed for wages or research fees, severance payment and various expenses totalling $20,695.50.

3. The claimant claimed that the cheques were the price of international calling cards purchased by the defendants from the claimant. The defendants defended the claim on the basis that there were defects with these calling cards. As for the counterclaim, the defendants claimed that the 1st named defendant was employed by the claimant to carry out market research, but had not been properly paid or reimbursed for the fees and expenses.

4. On the third day of the trial before the Tribunal, the parties reached a settlement. The consent order dated 3 December 1999 ("the Consent Order") reads:

"By consent:

(1) Judgment for Overseas Calling Club Limited against Weeks Murnie Elwood, Weeks Ling Yah Ling Ally in the sum of $7,162.50 in full and final settlement of the claim. The above judgment sum to be paid by both Defendants to Claimant through Small Claims Tribunal.

(2) Payment to be made on or before 7/12/99.

(3) Counterclaim withdrawn."

5. Separate from the Consent Order, the parties had also signed an agreement ("the Agreement") which is in the following terms :

"It is hereby agreed between the parties that :-

1) The defendants will forthwith pay the claimant HK$7,162.50

2) Upon payment referred to in 1) above the claimant will provide the defendants with

i) an invoice in respect of the pre-paid calling cards sold to the defendants by the claimant and subject to these proceedings

ii) a list of serial numbers of the said pre-paid calling cards (to be incorporated on the invoice)

3) Upon completion of 1) and 2) above the cheques the subject of these proceedings will be returned to the defendants."

6. The Agreement was dated 3 December 1999 and signed by a director of the claimant and by both defendants. A copy of the Agreement had been shown to the Adjudicator and kept in the court file.

7. On 11 December 1999, a fax from the 1st named defendant was received by the Tribunal. In the fax, the 1st named defendant complained of difficulty of obtaining a "proper" invoice from the claimant. The case was then listed for a review hearing before the same Adjudicator on 19 January 2000. After ascertaining from the parties that they were not seeking to set aside the Consent Order, the Adjudicator directed that the Consent Order do stand. It is against that direction that this application for leave is brought.

Grounds of Appeal

8. The ground relied upon in the Application for Leave to Appeal is that the order is outside the jurisdiction of the Tribunal. The particulars are worded as follows :

"The case was settled out of court according to an agreement signed by both parties. The claimant refuses to provide us with the invoice as agreed. We wish then that this exchange can be properly made in the Court of First Instance."

9. At the hearing, the 1st defendant handed up a written submission which expands and elaborates on the ground set out in the Application. The 1st named defendant further stated that his sole concern is to have the invoice mentioned in the Agreement delivered to him, and he wished that a court session could be set up for the parties to achieve this.

Reasons for Dismissing the Application

10. It is plain that this is not a proper case for appeal. The defendants do not challenge the terms of the Consent Order. The defendants are asking to specifically enforce the Agreement in relation to the supply of an invoice by the claimant. The Agreement, as the defendants reckon, is an out of court settlement. It has not been the subject matter of an order of the Small Claims Tribunal. It is also not part of the Consent Order. As a matter of fact, the Small Claims Tribunal has no power to make any order directing one party to perform any specific act save for the payment of a sum of money.

11. The Agreement is in effect no different from a contract and has to be enforced in the same way as a contract. If the defendants say that the claimant has been in breach of the Agreement in relation to the provision of an invoice and wish to specifically enforce the terms of the Agreement, the defendants should commence a separate action in the District Court or the Court of First Instance, claiming for specific performance of the Agreement.

12. Bringing an appeal against the Adjudicator's order affirming the Consent Order and seeking leave to proceed with the appeal is plainly wrong and misconceived. The appeal does not involve a point of law, which is the only permissible basis for an appeal. There is no question of overturning the Adjudicator's decision to affirm an order made previously by consent of the parties and when the defendants are not seeking to withdraw the consent previously given.

13. One thing mentioned by the 1st named defendant at the hearing that I ought to deal with briefly, and it is this. He said that had he known the claimant would not honoured the promise of supplying him with a "proper" invoice, he would not have signed the Agreement, and he wished he could now return to the point just before the settlement as he felt he had compromised his position. I have firstly to point out that this is not a matter stated in the Application to Appeal nor in the expanded reasons handed up by the 1st named defendants. This was mentioned after I dismissed the application and gave oral reasons. At that point, it was too late for the defendants to seek to re-open the application for leave by relying on a new ground. At any rate, what the 1st named defendant said does not afford a sound basis for overturning the Consent Order. An order made by consent cannot be set aside or re-opened simply because one party to it subsequently fails to perform his part of the bargain.

14. For the reasons set out above, the application for leave to appeal must be dismissed.