XCHRX JAMES WONG & CO. LTD. v. TONG TAI YUN AND OTHERS

HCA 14125/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 14125 OF 1997

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J U D G M E N T

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1. This is an appeal from Master Muttrie who on 13 May 1999 gave the 4th and 6th defendants unconditional leave to defend an action by the plaintiff for the price of goods sold and delivered.

2. The 4th and 6th defendants are two of the partners in a firm which is said by the plaintiff to be "the buyer" under the contracts with the plaintiff. But the party expressed to be "the buyer" is in fact a different person; it is Tai Hing (E & B) Ltd. The reason why the firm is said to be liable is that a signatory duly authorised by the firm signed the contracts "as buyer". It did not do so "for and on behalf of" Tai Hing. In these circumstances, the plaintiff says that the firm, if an agent, has failed to negative its own liability and further that it should be taken as having contracted as principal, to the exclusion of Tai Hing altogether. It is said that, absent the words "for and on behalf of", to qualify the firm's signature, the firm not only may, but must, be liable to the plaintiff.

3. I do not accept this argument. No doubt the law is that a person is liable for his engagements, even though he is acting for another, unless he can show that he has expressly or impliedly negatived his personal liability. Here the firm has not expressly negatived its personal liability, but it is certainly arguable that it has done so impliedly. This depends on the objective intentions of the parties, to be determined in the light of the terms of the contract and all the surrounding circumstances.

4. These are not matters which can be investigated on an application for summary judgment. The Master was right to give the 4th and 6th defendants unconditional leave to defend. This appeal will accordingly be dismissed with costs.