TEAMAN DESIGN LTD v. LAKCO PACKAGING LTD

DCCJ 1906/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1906 OF 2012

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REASONS FOR DECISION

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1. The plaintiff (“Teaman”) claims for the outstanding balance of the cost of design and decoration work done and materials supplied to the office premises of the defendant (“Lakco”). Lakco disputes the amount claimed. It also complains about delay and defective work; and counterclaims for loss and damage. After trial, I gave judgment in favour of Teaman, after set-off by the extent of counterclaim allowed, with costs. Lakco applied for leave to appeal. After hearing, I refused leave with costs to Teaman. As indicated, I now give my reasons.

2. For the background and the parties’ respective claims, I will not repeat here what were set out in the written judgment dated 13 October 2014 (“the Judgment”).

3. The proposed grounds of appeal suggested errors in the court’s finding:

(1) that Teaman was entitled to rely on the 8/5/12 Invoices in light of the 28/3/12 Invoices;

(2) that Teaman was entitled to the claim for the supply and installation of the main cable for the MCB Board at HK$6,500;

(3) that Teaman was entitled to the claim for the light points for the down lights of the showcase;

(4) that there was no agreement re the 3% discount on all invoices;

(5) that the cracks and chipping of the exterior paintwork were not the conditions of the cabinets when Teaman last left the premises; and

(6) that the cost of repair should be HK$1,200.

Principles

4. Leave to appeal shall not be grantedunless the Court is satisfied that the intended appeal has a reasonable prospect of success; or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance.  Only the first limb was relied on in the present application.

5. Counsel also rightly referred to the trite principle in Ting Kwok Keung v. Tam Dick Yuen (2002) 5 HKCFAR 336 per Bokhary PJ, §§349J-350F.  The Court of Appeal would only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness.  It is a very high threshold.

Ground (1)

6. The basis of challenge was that confirmation by Lakco of the invoices was required. Reference was also made to the court’s remarks during the trial in this respect.  However, being challenged was the court’s finding as a result of consideration of all, not any single aspect, of the evidence.

7. More importantly, the dispute had more to do with the disputed items of the invoices, as transpired from the 2 sets of invoices[1], instead of entitlement to rely on the 28/3/12 Invoices.  The dispute was highlighted for determination at the trial.  The issue was whether Teaman was entitled to those items as cost of work done.  As Mr Lai submits, so long as the Court found that as a matter of fact the cost had been agreed and that the work had been done, absent any contrary agreement, Lakco was prima facie liable.  It was in respect of such contrary contention that Lakco might have wanted to make that its pleading problem surfaced.

8. Ms Yu repeated the argument raised during the trial, namely, that her client could not have pleaded a positive case in respect of the above disputed items.  I rejected the argument.  Lakco’s pleading and witness statement had not been improved and supplemented respectively even after Teaman’s discovery of the 8/5/12 Invoices[2]. The last opportunity to do so was turned down by Lakco when the trial began.  That marked the extent of positive case and evidence that Lakco chose to run at the trial.

Ground (2)

9. This was also challenge against factual findings.  The circumstantial evidence referred to were actually canvassed in the court’s consideration[3].  Conclusion was drawn within the confines of the parties’ pleaded cases.  The suggestion that the case should be judged more according to the actual evidence[4] than the pleadings, as I held, was precisely what the court should guard against[5].

Ground (3)

10. This ground was abandoned.

Ground (4)

11. That Teaman effectively retracted the discount from the calculation of the amounts of some of the invoices was expressly noted[6]. The court proceeded to consider all the relevant evidence.  The principle mentioned above in respect of ground (2) is also valid in respect of this ground[7].

Grounds (5) and (6)

12. This was again challenge against findings of fact in respect of the counterclaim, which were conclusions after consideration of all the factual and expert evidence.

Conclusion

13. I was not satisfied that there would be a reasonable prospect of convincing the appellate court to conclude that the findings of fact in the present case were such that the evidence did not warrant them or that the findings were plainly wrong.  Hence my refusal of leave.