LAMMAR OFFSET PRINTING LTD. v. THE HONG KONG ARTISTS'GUILD LTD.

HCA4716/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4716 OF 1997

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J U D G M E N T

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1. This is an appeal from the decision of Master KWAN who ordered summary judgment under Order 14 in favour of the plaintiff against the defendant.

2. The plaintiff's claim is for $300,000, being the balance of the purchase price of materials supplied in the printing of a book entitled "Who's Who in the Arts", and the delivery of 2,250 copies of that printed book to the defendant by the plaintiff. There is no dispute that such a book was printed by the plaintiff and delivered at different times and at different places to the defendant.

3. The defence raised is that there was no contract between the defendant and the plaintiff to have the book printed, but that the contract was between the plaintiff and The First Institute of Art and Design for the printing of that book.

4. I accept at once that it is for the defendant to show that there are triable issues for the case to go to trial. In so doing, the defendant need not necessarily rely only on their own assertions, but that they can make use of any evidence or exhibits put forward by the plaintiff. At the same time, it must be said that summary judgment under Order 14 is to be ordered only in the clearest of cases that a defendant has no bonafide defence.

5. In this case, the plaintiff's application is also under Order 27, that there has been an admission. And in like manner, for judgment to be entered upon an admission, it is for the plaintiff to show that there has been a clear admission of liability. The issue in this case is narrowed down by the plaintiff's concession that if what has been asserted by the defendant as contained in Phillip TSE's affirmation - namely that there was no contract between the parties - are believable, then there would be triable issues raised for the matter to go to trial.

6. However, the plaintiff puts forward its submission in this case on the basis that what has been asserted by the defendant are not believable, and therefore there is nothing to go to trial, but that the plaintiff should be entitled to summary judgment.

7. It is obvious that where a plaintiff comes to court on an application for summary judgment on the basis that what is asserted by a defendant is unbelievable, the plaintiff has a heavy task of showing that what the defendant says must itself inherently be unbelievable. As has been said by Godfrey J in the case of NG Tso-chung v HUNG Chuen-sen, [1994] 1 HKC, 155:

"It is for the court to ask itself whether the defendant's assertions are believable and not whether they are to be believed."

8. What I have to decide today is not whether I believe what the defendant says on all the evidence put before me, but whether it is believable.

9. Mr NG, for the plaintiff, has made a strong submission and a thorough one, which points to the plaintiff having a strong case in this matter against the defendant. This submission would have been better made as a final submission after trial. Without detracting from the strength of Mr NG's submission at this stage, the strength or otherwise of the plaintiff's case is not and should not be a matter for me to decide, for doing so would tantamount to be trying this case, to be holding a mini trial of this case on affidavit evidence.

10. What I have to decide and what I have to look at is to see whether there is any triable issue of fact which can properly go to trial. I accept at once that the assertions of the defendant, looked at in itself, appear to be weak. However, an inescapable feature in this case is the fact that there are at least four documents, all of which were put forward by the plaintiff, and on which the indication being that there are matters in those documents to support the defence put forward in the sense that the contents of these four documents go to some length to show that the real party to this agreement was between the plaintiff and The First Institute of Art and Design, and not, as the plaintiff claims, between the plaintiff and the defendant.

11. In other words, that the contract for the printing of the book "Who's Who in the Arts" was a contract not between the plaintiff and the defendant, but the documents support that it was a contract between the plaintiff and The First Institute of Art and Design.

12. These documents that I refer to, firstly, is a quotation, dated 9 February 1993 - a quotation by the plaintiff addressed to The First Institute of Art and Design, attention Principal, Mr LUI. Nowhere in that quotation suggests that there was a quotation made out to the defendant. Secondly, a delivery order, dated 17 April 1993, which evidences the delivery of 1,950 copies of the book "Who's Who in the Arts" to the defendant's address in Happy Valley, but on this delivery order is stated the words, "Delivered on behalf of The First Institute of Art and Design."

13. Thirdly, two invoices, both dated 23 April 1993, both of which being addressed to The First Institute of Art and Design in respect of the printing of these books, "Who's Who in the Arts". Not only were both these invoices addressed to The First Institute of Art and Design, but that the two original copies of these invoices handed up to me shows that at the column where the customer signature should have appeared on both these invoices, that column bears the chop of The First Institute of Art and Design.

14. The thrust of the defendant's submission inevitably hinged on the contents of these four documents, yet surprisingly, I find that in the affirmations filed by the plaintiff - which consisted of two affirmations of Mr WU and one affirmation of Mr LO - apart from stating that the quotation and the invoices were addressed to The First Institute of Art and Design, no other explanation has been offered as to why that was so. Neither in the very thorough speech of Mr NG can I see anything to explain why these four documents of the plaintiff were written in the way that they were, and not as one would have thought, if the contract had been between the plaintiff and the defendant, that these documents would have been addressed to the defendant, rather than to The First Institute of Art and Design.

15. In the circumstances, strong though the submission of Mr NG was on behalf of the plaintiff, and strong though the plaintiff's claim may be at trial, at this stage, I am unable to say that the defence raised is one that is so incredible that the plaintiff ought to be given summary judgment in this matter. Rather, in my view, because of what is contained in these four documents, it must be a matter for a trial judge after hearing evidence, as well as cross-examination, to decide what evidence he accepts or rejects, and therefore, it must be a matter for trial.

16. The other part of the plaintiff's application for Order 14 is based on admission under Order 27. I have already said that in order that the plaintiff succeeded in obtaining judgment based on an admission, the admission must be one that is clearly made.

17. The plaintiff's reliance on this case is twofold. Firstly, on the oral admission which took place at a meeting on 14 June 1996 at the Sun Hung Kei Centre, the office of Mr Phillip TSE, where it has been alleged that oral admissions were made by Mr SZE and a Mr HO on behalf of the defendant as to the defendant's liability in this matter.

18. In the affirmation of Mr Phillip TSE, although this matter has not been specifically disputed by him, reading his affirmation as a whole, particularly the last paragraph of his affirmation, I am unable to form the view that there is such a clear admission as put forward by the plaintiff. The plaintiff also relies on a letter from the defendant signed by Mr Phillip TSE dated 14 October 1996, which the plaintiff says constitutes yet another clear admission by the defendant as to their liability.

19. Again, when looked at in its entirety, the proposed settlement contained in that letter is in a form which shows that the defendants were to settle the matter in a way by paying a sum much less than the 300,000 in question, and looking at the letter in its entirety, I cannot help but come to the feeling that the defendant, in writing that letter, was making a genuine attempt at settling the dispute. For that reason, whether or not that can amount to a clear admission of liability, is in doubt.

20. In the circumstances of this case, I am unable to say that the defence put forward is one which is so incredible that the plaintiff ought to have summary judgment. I therefore come to the conclusion that there are triable issues raised in this case, and it's a case that ought to go to trial. Accordingly, I will allow the appeal, set aside the order of Master KWAN and I shall give unconditional leave to the defendant to defend.