LOUIS PAO t/a LOUISNPARTNERS 0004 v. NG YUK YUNG

IN THE COURT OF APPEAL

1987, No.79
(Civil)

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JUDGMENT

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Power, J .A. :

1. This is the judgment of the court.

The Parties

2. The appellant Mr. Louis Pao is a teacher of dance, trading as Louisnpartners 0004 and operating from stuaios on the 10th floor of Mirador Mansion, 58 Nathan Road, Kowloon. The respondent Miss NG Yuk-yung is a former pupil of Mr. Pao.

The Pleadings

3. In June 1986 Mr. Pao commenced an action against Miss Ng claiming fees which he said were owing to him together with interest. The claim was based upon a document entitled "Special Learner's Promises" signed by Miss Ng on 25th October 1982. This document is, it is true, somewhat quaintly phrased, having been drafted by Mr. Pao, but it seems to us to set out in ascertainable terms an undertaking by the pupil, Miss Ng, to take 720 special lessons before 25th October 1984 and to pay a tuition fee therefor of $28,800. This fee is stated to be payable on demand and there is provision which would allow the pupil to make payment by acting as an assistant teacher and by doing clerical and other work for Mr. Pao for which she would be given credit at a rate of $10 per hour. The document stipulates that the work as an assistant teacher can only be undertaken after the pupil has completed 1440 hours of practice.

4. Other provisions stipulate that Mr. Pao may demand the payment in gold and that the pupil “fully understands that this is a kind of I.O.U.”. The pupil also promised if she falls in arrears, to “pay not only the full amount of tuition fee/debt but half yearly compound interest at the highest rate charged by any person/shop/company".

5. Mr. Pao pleaded that after obtaining 2 certificates Miss Ng failed to complete the course. He did not claim the full amount of $28,800 but a reduced amount of $16,800 which he pleaded was the amount a fellow student had paid for the number of lessons actually taken. He did however seek to recover compound interest which brought his total claim to $29,767.

6. Miss Ng's defence fell under two heads. Firstly she pleaded that Mr. Pao represented himself as a professional world dancing teaching "either in I.S.T.D. and F.A.T.D. (English style) or in N.Y.S.T.D. (American style) and an Official Examiner" and that he had represented that “he would definitely invite any foreign examiners from I.S.T.D. and N.Y.S.T.D. and arranged (sic) the exams at his studio for the defendant. He guaranteed the defendant’s success of passing M exams both in both English. L-AM and American 13 Ballroom M with a certain prescriptive duration." Miss Ng pleaded that she entered into "the contract" in reliance upon these representations.

7. She then pleaded that she had entered into three contracts with Mr. Pao. It appears that the one referred to as “the third contract” is the document entitled "Special Learner’s Promises" upon which Mr. Pao sues. She pleaded that both she and a Mr. Fung took the Latin American A exam set by the Hong Kong Dancers Association on 15th July 1984 and that both passed that exam but pleads that this was not the exam which Mr. Pao had promised he would train her for and ensure that she would take. She pleaded that, it having become apparent by the end of July 1984 that Mr. Pao was unable to make the arrangements promised, he pressed her to sign a further contract and that she then left the studio and did not return.

8. The second ground pleaded was that Mr. Pao had failed to instruct Miss Ng in an adequate and proper way and had left her to pick up what she could from the instruction being given to Mr. Fung.

9. She also counterclaimed for $13,410.00 for "work and service done for Mr. Pao."

The Hearing

10. There were a number of complex matters of fact raised by the pleadings. Unfortunately the parties were unrepresented. The record of hearing occupies only 6 quarto pages of widely spaced type-written notes which commence with the observation: "Court: Attempts to narrow the issues". This attempt was apparently not successful as the notes do not record that any issues were agreed.

11. Mr. Pao in his evidence briefly detailed his qualifications and his method of teaching. He stated that Miss Ng at first signed for 120 lessons on 15th November 1981 and then on 11th March 1982 signed for further lessons. He said that she finally signed a third contract for 720 special lessons and he produced the “Special Learner’s” Promises” to which reference has already been made. He said that this provided for payment of $28,800 but that as her classmate Mr. Fung had only paid $16,800 he was only claiming that amount with compound interest. He made no reference to the alleged misrepresentations, to the allegations that he had failed to teach in a proper manner or to the matters raised by the counterclaim.

12. There were two questions asked of him in cross-examination. Firstly-it was suggested that Mr. Fung lessons were on different basis. This he denied. It was then put to him that he could not have taught Mr. Fung without Miss Ng "being there". To this he said that Mr. Fung and Miss Ng were classmates and that she was not working but was training. This was the only evidence from him that touched in any way upon the matters raised in the defence.

13. Miss Ng then gave evidence in which she outlined how she had come to take instruction from Mr. Pao. She also tendered a copy of the "Special Learner’s Promises" document. She made no reference to the alleged misrepresentations other than to say: "He guaranteed he could arrange the exam in his studio:" She did not at that stage of her evidence indicate to what exam she was referring. She did, however, later state that after 1351 hours of instruction, which had, it would seem, been completed by July 1984, she “realized he could not invite foreign examiners to his studio". She gave no evidence to explain how she had come to this realization.

14. The only reference she made to the failure to teach her in a proper manner was as follows:

“I went for 1351 hours if Mr. Fung was there I just listened to what he taught Mr. Fung”.

She made no specific reference to the 1341 hours of work which were the subject to the counterclaim. She was asked 5 questions in cross-examination in answer to which she said that she had been asked to type out notes and had refused to do so and that the lecture notes she used were prepared by Mr. Fung and that while Mr. Pao taught Mr. Fung she watched.

15. Miss Ng called Mr. Fung who said: “I thought Miss Ng was an assistant to the plaintiff having signed a form of contract. Miss Ng only acted as my partner. I rarely saw her being instructed from the beginning he mentioned overseas examinations.” (sic) He said “When I had nearly finished he said he would write to I.S.T.D. to England; then he said he would write to Australia then he said he had lost address then he suggested local qualification. I was a bit disappointed. Miss Ng was very disappointed. I understood she was training for overseas qualification. When I started, I thought I could get the overseas qualification.”

16. Under cross-examination he said that Miss Ng and the other girls were assistants not taking lessons.

The Judgment

17. The judgment of Judge Scriven was delivered on the same day as the hearing. He dealt firstly with the "Special Learner's Promises" saying:

“I cannot truly say that this is a clear expression of legal intentions, it is a confused, complex rambling and convoluted document most likely incapable of defining a legal relationship.”

18. In view of the order which we will make we do not consider it desirable to make any detailed findings with regard to this document. Suffice to say that we are by no means satisfied that it is a document “most likely incapable of defining a legal relationship."

19. The judge, although he had come to that conclusion, went on to deal with the matter upon the basis that it did constitute a binding contract and found that it had been entered into “after a representation by the Plaintiff that after the previous tuition, he would be able to prepare the defendant for international examinations, and that the Plaintiff would be able to arrange for those examinations to be held in Hong Kong.

20. Again we do not consider it desirable to comment in a concluded way upon this finding. However, we do find difficulty pinpointing evidence which allows it to be made and further, consider it arguable that the representation, if it was made; would constitute not a misrepreesentation inducing the contract sued upon, but a collateral contract. If this be so the real issue to be canvassed would be the extent to which Mr. Pao was entitled to payment for the tuition rendered under the "Special Learner’s Promises" and the quantum of damages to which Miss Ng was entitled for breach of the collateral contract.

21. Our real concern is, however, not with whether questions of law were properly determined but with the fact that the issues of fact raised by the pleadings were not canvassed in an adequate way in the course of the trial. It is true that this trial was made difficult by the fact that neither party was represented and that both Mr. Pao and to a lesser extent Miss Ng are, unless firmly controlled, given to irrelevant loquacity. It is also true that a trial judge must in such circumstances take particular care not to descend into the arena. He has, however, an equally important duty which is to ensure that the issues are properly and fairly canvassed. As Halsbury's Laws of England (4th Ed. Vol.37 para.510) points out the "overriding duty" of the judge “is to ensure the fair and orderly unfolding of the respective cases of the parties according to the practice and procedure of the court.”

22. Where the parties are represented the judge should, it is true, not intervene more than is strictly necessary - he should leave the presentation of the case and the unfolding of the evidence to counsel.

23. The interests of justice may, however, require much greater intervention, of a careful and balanced kind it is true, where the parties are unrepresented.

24. If it is clear that a party in person has failed, because of ignorance, to bring forward facts to support his pleading or to deal with matters pleaded against him the trial judge must point out to him that unless he addresses himself to those matters certain consequences may follow. A failure by the trial judge so to do might well render impossible of attainment the very object of the trial - a fair and balanced adjudication.

25. As we have already indicated the facts pleaded upon which the parties clearly wished to rely were not canvassed in an adequate way.

26. There were a number of issues raised by the pleadings which required careful examination which, unfortunately, they did not receive.

27. In the circumstances we have no recourse but to set aside the judgment and order a hearing de novo.