CHOW MEE YEE MILLIE v. HONG KONG MEDIATION SERVICES LTD

HCSA 17/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 17 OF 2011

(On appeal from Small Claims Tribunal Claim No SCTC 55541/2010)

____________

BETWEEN

____________

_____________

D E C I S I O N

_____________

A. Introduction

1.  This is the claimant’s application for leave to appeal against the order (“the Order”) dated 5 May 2011 made by the Adjudicator under SCTC 55541/10 and his subsequent order (“the Review Order”) dated 2 June 2011 dismissing the claimant’s application for review of the Order. 

2.  By way of the Order, the learned Adjudicator dismissed the claimant’s claim against the defendant company for $13,440.00 as her fee as a mediator for perusing the documents in preparation for an intended mediation (“the perusal fee”).

B. THE BACKGROUND FACTS AS ACCEPTED BY THE ADJUDICATOR LEADING TO THE CLAIM

3.  The following background facts are accepted by the Adjudicator.

4.  The claimant is a barrister and a mediator.

5.  The defendant is a company providing services in relation to mediation.

6.  By an agreement entitled “Application for Mediation Services” (“the AMS”) dated 15 July 2010, two parties (respectively represented by solicitors) applied to the defendant for the appointment of a mediator and arranging venue and other services for mediation.  For convenience, I would refer to these parties respectively as “A” and “B” and collectively “the Clients” in this judgment.  They each paid $2,500.00 to the defendant as deposit under the AMS.

7.  Apparently, A and B had a dispute over payment under a contract for carrying out decoration works at B’s premises.  The dispute involved outstanding payment under this contract and the quality of works.

8.  Between 16 July and 11 August 2010, A and B’s solicitors and the defendant had various communications for the introduction of a mediator for the intended mediation. The defendant also provided a draft agreement called “Agreement to Mediate” (“ATM”) to A and B’s solicitors.  The ATM was the agreement to be signed by A and B with the mediator for engaging the mediator to conduct the mediation.

9.  The Clients’ solicitors confirmed with the defendant on 11 August that there would be a mediation to be held on 18 August 2010.  They reserved 3 hours for the intended mediation.  The defendant then notified the claimant of the intended mediation and passed over to her 200 odd pages of documents to prepare for the mediation.

10.  On 12 August 2010, the claimant signed a Mediator Agreement (“the MA”) with the defendant, whereby it was provided that she appointed the defendant to assist her (in accordance with the terms of the MA) in providing mediation services in mediating the disputes between A and B.

11.  Clause 18 (“Clause 18”) of the MA further provided as follows:

“18. Both parties agree that the Mediator's hourly rate is $2,800. The Mediator will submit to the Company [i.e., the defendant] an intemized statment setting forth the time spent and services rendered to the Clients for the mediation and the Company will charge the Mediator 20% of the Mediator's fees due as indicated by statements submitted by the Mediator as the Company's secretarial services fee within Ten (10) days after the Clients have settled the Company's Bill.” (emphasis added)

12.  On the same date (i.e., 12 August 2010), the claimant and a Mr Leung of the defendant had a telephone conversation (“the 12 August Conversation”) relating, amongst others, the claimant’s concern that whether she could recover the fees for the time incurred in reading those documents if eventually the mediation did not proceed.  The claimant and the defendant disputed on the content of the 12 August Conversation at the trial before the Adjudicator.

13.  On 14 August 2010, the claimant attended a seminar organized by the defendant.  There were more than 10 mediators whose name appeared on the defendant’s list of mediators attended this.  The claimant raised at this seminar her concern on the question of the payment of perusal fee in preparation for mediation.  There was then a discussion made in relation to this question.  I would refer this discussion as “the Seminar Discussion”. Again, before the Adjudicator, the parties disputed on the content on what was said and answered during the Seminar Discussion.

14.  On 18 August 2010 (i.e, the date of the intended mediation for A and B), the claimant attended A and B and their solicitors.  She explained the content of the ATM.  However, after mentioning about the perusal fee in relation to the 6 hours of preparation she had already incurred (as part of the mediators fees she would charge), the Clients refused to sign the ATM (which, as I mentioned above, was the agreement to engage the claimant as their mediator).  The intended mediation therefore eventually did not take place.

15.  By a letter (“the 19 August Letter”) dated 19 August 2010, the claimant wrote to the defendant attaching therewith an itemised bill for 9 hours’ of works (which included the 6 hours perusal time and 3 hours for the aborted mediation).  She also set out her versions as to the contents of the 12 August Conversation and the Seminar Discussion.

16.  Thereafter, the parties had been exchanging both open and without prejudice correspondences arguing effectively on whether the defendant should be responsible to settle the claimant’s bill.  These correspondences by consent were placed before the Adjudicator as evidence.

17.  On 24 August 2010, the defendant on a without prejudice basis wrote to the claimant stating that although it did not have any obligation to pay her, on a without prejudice basis, it would pay her 3 hours’ of work.  A cheque in the sum of $6,720.00 (being $2,800.00 x 3 x 80%) was thus enclosed in this letter.

18.  The claimant eventually accepted and deposited this payment but continued to pursue against the defendant her claim for the perusal fee.  The parties also failed to settle their dispute by mediation.

19.  On 9 November, the defendant issued a statement of bill to the Clients asking for the payment of $2,600.00 for the defendant’s services and $8,400.00 as the mediator’s 3 hours fee.  There was no inclusion in this bill for the perusal fee.   The Clients have not paid for it.

20.  In December 2010, the claimant brought the present claim in the Small Claims Tribunal for $13,400.00 as the unpaid perusal fee (being $2,800 x 6 x 80%).

21.  After trial, on 5 May 2011 by the Order, the learned Adjudicator dismissed the claimant’s claim.  In summary, it was the Adjudicator conclusion that:

(1)   On a proper construction of the MA, it did not provide any express terms to require the defendant to pay the claimant the perusal fee.  The defendant’s obligation was only to pay the claimant after and if the Clients had settled the fees due (see paras 36‑40 of the Adjudicator’s reasons for judgment dated 14 August 2011).

(2)   On the facts as found, there was no oral promise or representation whereby the defendant agreed to pay for such fee (see paras 41‑55 and 68‑70 of reasons for judgment).

(3)   There could also not be an implied term in the MA requiring the defendant to pay the claimant the perusal fee (see paras 56‑58 of reasons for judgment).

22.  On the claimant’s application for review, in confirming the Order, the learned Adjudicator also concluded that, even if the defendant was in breach of the MA (as contended by the claimant) in failing to issue a bill to the Clients for the perusal fee, on the evidence he was satisfied that the Clients would not have paid for it (as they had even refused to sign the ATM to appoint the claimant as mediator after learning about the perusal fee).  As such, the claimant’s claim against the defendant would still not have succeeded (see paras 65 and 66 of reasons for judgment).

23.  On 11 July 2011, the claimant applied for leave to appeal against the Order and the Review Order.

C. THIS APPLICATION FOR LEAVE TO APPEAL

C1. Applicable principles

24.  For the present purposes, an appeal from the Order and the Review Order is limited to any grounds involving a question of law.  See s 28(1) of the Small Claims Tribunal Ordinance (Cap 338).

25.  Further, it is trite that finding of facts by the Tribunal is generally immune from challenge as it involves no error of law, unless such is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors: Kei Siu Hung v CAF Securities Co Ltd (unrep., HCLA 39/2008, Deputy High Court Judge To, 27 November 2008), para 4, adopting Kwong Mile Services Ltd v Commissioner of IRD [2004] 3 HKLRD 168 (CFA), paras 31-37.

26.  The claimant in seeking leave has to demonstrate that her grounds of appeal are arguable.  See Chan Kwok Hung v Hotel Panorama Co Ltd (unrep., HCLA 30/2009, Chu J, 19 November 2009), at para 13.

C2. The grounds of appeal

27.  The claimant raises altogether 12 grounds of appeal.  Bearing the above principles in mind, I would now look at these grounds respectively.

C2.1 Ground 1 – The entire agreement construction

28.  The claimant says the learned Adjudicator has committed an error of law in concluding that the MA did not provide any express term obliging the defendant to pay her the perusal fee.  She submits that the MA when properly construed with the relevant circumstances and background and with the other provisions of the AMS and ATM, there is nothing in these three documents “to infer that the defendant is not under an obligation to pay the claimant when, as a matter of fact, the claimant is brought into the mediation by the defendant to provide her service to the Clients whilst the defendant undertakes to collect the full payment from them”.  The claimant further says it would be “most absurd to read Clause 18 as saying that the defendant has only the ‘obligation’ to ‘charge’ the claimant for its secretarial service fee but not the ‘obligation’ to pay the claimant her entitlement first”.

29.  In support of the claimant’s above purported construction of Clause 18, the claimant refers to the following background and circumstances:

(1)   She was notified of being appointed as mediator and was asked to reserve three hours of her time for mediation purpose on 18 August 2010.

(2)   The claimant was tasked by the defendant to collect 200 odd pages of documents from the defendant’s office and she was expected to peruse them in preparation for the intended mediation.

(3)   The defendant made oral representations to the claimant telling her that she did not have to worry about getting paid for her preparation and perusal of time.

(4)   She signed the MA on the faith of the defendant’s oral representations and commenced her preparation work.

30.  She further refers to the following provisions of the MA, ATM and AMS:

(1)   Clause 16 of the MA:

“16. The Mediator's services will begin upon the execution of this Agreement until the end of the mediation as arranged or the cancelation of this Agreement. Either party may cancel this Agreement on seven (7) days written notice to the other party.”

(2)   Paras 6, 12, 17 and “payment methods” of ATM:

“6. If in the course of the mediation the Mediator becomes aware of any circumstances that might reasonably be considered to affect the Mediator's capacity to act impartially, the Mediator must immediately inform the Parties of these circumstances. The Parties will then decide whether the mediation will continue with that Mediator or with a new mediator appointed by the Parties.

12. Where a Party privately discloses to the Mediator any information in confidence before, during or after the mediation, the Mediator will not disclose that information to any other Party or person without the consent of the Party disclosing it, unless required by law to make disclosure.

17. No terms of settlement reached at the mediation will be legally binding until set out in writing and signed by or on behalf of each of the Parties.

…

Payment methods:

(1) Bank in ‑ BOC Account – [account number] pay to ‘Hong Kong Mediation Services Limited’. Please mail, fax or email to HKMSL the receipt marking HKMSL's reference number and the name of payor.

(2) Cheque ‑ make payable to "Hong Kong Mediation Services Limited" and mail the crossed cheque to [address]. Please mark HKMSL's reference number and the name of payor on the back of the cheque.

(3) Invoice has to be settled within 30 days from the issue date, otherwise interest will be charged at 2% per month on any overdue account.”

(3)   Parts of the AMS providing as follows:

“Please return your completed application form together with a cheque as costs on account in the sum of $2,500/party ($5,000/parties) made payable to ‘Hong Kong Mediation Services Limited” to Room 5C, Hung Kei Building, Nos 5‑8, Queen Victoria Street, Central, Hong Kong or a receipt for the payment into the Bank of China Account No [number provided] of Hong Kong Mediation Services Limited.”

31.  The learned Adjudicator’s reasons for finding no express term to require the defendant to pay are set out in the reasons for judgment as follows:

“36. MA中，有關服務費的段落在於第18段 [i.e. Clause 18]-

‘Both parties agree that the Mediator’s hourly rate is $2,800. The Mediator will submit to the Company an itemized statement setting forth the time spent and services rendered to the Clients for the mediation and the Company will charge the Mediator 20% of the Mediator’s fees due as indicated by statements submitted by the Mediator as the Company’s secretarial services fee within Ten (10) days after the Clients have settled the Company’s bill.’

37. 有關解釋合約條款時所需採用的法理原則，區慶祥法官在以下一案例中已有詳細的闡述。Sinoearn International Ltd v. Hyundai ‑ CCECC Joint Venture (a firm), HCA 3987/2003,區法官在其判詞中的第89段指:-

‘(1) the construction of the terms of a contract is an objective task to ascertain the common intention of the parties, by looking at the plain and ordinary meaning of the words used: Chitty on Contracts,30^th Ed, paras 12‑042 – 12‑051.

(2) Where there is a written contract, in the absence of a case of collateral agreement (oral or otherwise), mistake, misrepresentation, non est factum or rectification, the rule on parol evidence generally prevents the Court from admitting and hearing extrinsic evidence to construe the terms of a contract. In any event, no extrinsic evidence should be admitted to contradict the express provision of a contract: Shogun Finance Ltd v Hudson, at 944A‑F per Lord Hobhouse; Chitty on Contract, supra, paras 12‑097‑12‑100

(3) On the other hand, the Court is prepared to and should look at and have regard to the factual matrix against which the contract is entered into in construing the terms of a contract: Jumbo King Ltd v Faithful Properties Ltd; Okachi (Hong Kong) Co Ltd v Nominee (Holdings) Ltd.”

38. 應用了以上法律原則後，本席裁定以下數點。

39. MA協議中的第18段明顯地並沒有寫出‘閱讀費’一詞。

40. 第18段中只列明：-

i)     調解員的按時服務費金額；

ii)    公司的‘秘書服務費’金額；

iii)    調解員的收款方法即：

a) 調解員須將每項服務費列明在說明書上，並將說明書交給公司；

b) 說明書中的內容須指出，為替顧客調解，調解員所使用的時間和服務種類；

c) 當顧客繳付公司發票金額後，在10天之內，公司便向調解員收取，調解員已遞交說明書之金額中的20 巴仙，作為公司的秘書服務費；

iv) 明顯地，根據第18段的運作，在調解後, 調解員先向公司發出費用說明書。接到說明書後，公司將會向顧客開出發票，列出調解員的費用和公司的費用（例如場租）。顧客就公司發票繳費給公司後，公司會扣起調解員應得金額的20巴仙，作為公司的報酬。之後，公司將餘下的80巴仙交給調解員；

v) 根據以上的分析，公司只在收到顧客付款後，才須適數繳付調解員。公司並不是調解員服務費的最終負責人。本席裁定，調解員（申索人）不能跟據MA的條文(express terms)要求公司負責餘下的6小時費用。”

32.  It was thus the Adjudicator’s conclusion that, on proper construction, Clause 18 only required the defendant to pay the claimant after it had received the payment from the Clients.  The defendant did not contractually carry the ultimate responsibility to settle the claimant’s fees on its own. 

33.  It must be borne in my mind that the contractual relationship between the claimant and the defendant was governed by the MA, which was the only contractual document signed by the claimant and the defendant.  In my view, the wording, and thus meaning, of Clause 18 is clear.  The defendant’s contractual payment obligation is to pay the claimant 80% of the fees she is entitled to charge within 10 days after the defendant has collected the same from the Clients.  It does not impose any independent contractual obligation on the defendant to pay the claimant whatever fees she sought to charge against the Clients whether in advance (as now contended by the claimant) or when the Clients refuse or fail to pay.

34.  Even if one is take into account of the relevant circumstances and the other provisions in the MA, ATM and AMS as submitted by the claimant above, I cannot see how these would support even an arguable case that Clause 18 (or any provisions under the MA) would impose an obligation on the defendant to pay on its own the claimant’s fees chargeable against the Clients.  These background and circumstances, and the various provisions in the ATM and AMS, are at most neutral to the construction of Clause 18 who carried the primary liability to settle the claimant’s chargeable fee.  This is particularly so, when there is a factual finding by the Adjudicator that the defendant had not make any oral representation to pay the defendant’s perusal fee (see below). 

35.  Further, in my view, on a proper and objective construction of these documents, the fees to be charged by the claimant against the Clients must be fees that she is legally (and thus contractually) entitled to charge the Clients.  In the present case, where the Clients had refused to sign the ATM, I am doubtful as to whether the claimant was even legally or contractually entitled to charge the Clients any fees.

36.  In my view, Clause 18 is expressed in clear language, and the learned Adjudicator’s above construction of Clause 18 demonstrates no error of law.  This is a conclusion he was fully entitled to come to. 

37.  I therefore do not find this ground of appeal arguable.

C2.2 Ground 2 – The “embellishment” ground

38.  The claimant says the learned Adjudicator erred in law at paras 42, 45‑47 and 57 of the reasons for judgment in “seeking to imply terms into the MA requiring the submission of a quotation of preparation fees by the claimant when the matter was already properly, sufficiently, completely and validly contemplated by the MA”.

39.  This part of the reasons for judgment are as follows:

“公司有否口頭上認責

41. 無論如何，調解員稱，公司的張先生（本案的公司代表），已在2010年8月12和14日表明，會對‘閱讀費’負責。她在審訊中重覆她於8月19日和9月1日信中的內容。

42. 調解員於8月19日之信件內容指：-

‘There were also numerous concerns that I had foreseen and for which I have already voiced them with you over our telephone conversations as early as 12 August, 2010, and for which I have again brought up at the talk given by Mr Richard W K Leung on 14 August, 2010. One of them relates to Parties’ acceptability of charges Mediator spends on perusing documents prior to the mediation. Yet, you had represented to me on 12 August, 2010 that it had never been a problem from your past experience and that I should not be too worried about it as Parties are legally represented.’

43. 調解員於9月1日之信件內容（信件第3頁的第4段）指：-

‘Beside, please be reminded that on 12 August, 2010 when I talked to you about my concerns that I could see a time gap between starting with my preparation work (which should be ahead of the first mediation session) and parties signing the Agreement (which should happen on the day of mediation, and that is, if they sign) , you had represented to me that it was never a problem from your past experience and that in this case, it shall not be a worry as parties would be legally represented. This topic was explored once more in front of 14 other Member‑Mediators (including myself) during the talk given by Mr Richard Leung, Counsel and a fellow Member‑Mediator of defendant’s company, but no one seemed to pay much heed to my seemingly valid concern.’

44. 就這，公司的張先生反駁，指事情和當時的對話並不如調解員所述。張先生在其書面証人供詞（第13段）指：-

‘On 12^th August 2010, the Claimant called me asking how much she could charge the Clients for perusal of the documents. I said it’s her decision. She had to quote her fee to the Clients.’

45. 張先生在第14段續稱：-

‘On 14^th August 2010, there was a talk held at the Defendant’s company when Mr Richard Leung, one of our panel mediators was the speaker. The topic was “Handling Tripartite Mediation Session with legal representative”. Some Panel Mediator, guests, the Claimant and I were audiences. When the [sic] discussing mediator’s fee for perusal of documents, the Claimant raised a question that if bundle of document is about 1 to 2 inches thick, how many hours could be charged. Some audiences and the speaker expressed their view. I expressed my view that Mediator has to quote fee to Clients, otherwise the Clients may think that except mediation meeting, no fee for perusal of documents is required.’

46. 本席小心考慮究竟8月12日在電話中和8月14日在講座中，雙方的實際對話是甚麼。

47. 從一個正常的商業角度來看，調解員在8月12日所提出的擔心絕對是合情合理，但是公司的張先生當時的反應是怎樣呢？

48. 簡而言之, 調解員稱，12日當時張先生說，跟據他的經驗，閱讀費不會構成問題，畢竟，本案中的顧客由律師代表。14 日，調解員再提及同一問題，但講座中各人（包括張先生）並沒有反應。而另一邊相,張先生供稱，他一直要求調解員先向顧客事先報價方可。

49. 本席考慮雙方板本的潛在可能性。從正常的商業角度來看，對一位付費人來講，費用須清晰。而如果費用可能有變數的話，亦須將可能的變數或者變化的程度，向付費人解釋，讓付費人知道事態可能的發展、事態引申可能費用的發展究竟會演變成怎樣。這樣的話，付費人才可以作出一個合理、公道和有充分資訊的決定，決定是否採納或繼續採納有關的服務。如果付費人是公司的話，公司豈不會預先問清楚調解員她大概的閱讀時數多少？這個是本席對申索方（調解員）板本的第一個疑問。

50. 第二，調解員的板本是當時張先生的回應稱‘應該沒有問題等等’。這個回應明顯地是模稜兩可,含糊不清。調解員主動提出這‘閱讀費’的問題，當然是因為她對此擔心。張先生當真如此回應的話，調解員豈不會繼續問下去，確保她的辛勞血汗不會付諸流水？在14日，在公司內的講座中，調解員又容許這課題不了了之？10多名同業在場，都不顧自己福子，趁機向在場的張先生問清楚？申索方這樣無奈的講法，實太違潛在可能性了。

51. 在法庭裡，調解員稱，她作為一擁不足5年經驗的新進，在面對着公司時，根本沒有談判能力。難得公司願給她機會進行調解，她已萬幸不矣。

52. 但法庭考慮到，畢竟調解員是一名成年人，是一名大律師。她理應有能力保護自己，保障自己的權益，就正如她現時在本席前奮勇地抗爭。本席並不相信，她會一再提出“閱讀費”的問題，而啞忍公司的繼續含糊回應。本席相信，面對着她稱公司的回應，她會據理力爭，在口頭、甚至書面上，要求公司弄個清楚。

53. 畢竟，本席認為，任何費用，需預先報價。明碼實價後，付款人同意、落實方可！這明顯的道理在本案亦能體現。當聽到原本3小時的服務中，原來還有額外6小時費用後，顧客拒絕簽署ATM協議。顧客當時的反應，理所當然。

54. 最後，本席認為並裁定，調解員的板本不可信。公司的板本可信。本席裁定，張先生的供詞為事實的真相，張先生已清楚向調解員講述，調解員須先向顧客報價，顧客同意‘閱讀費’方可。本席認為，公司的板本合情合理，符合以上的分析。

55. 無論如何，調解員的板本亦幫不了她的案情。因為，根據她的講法，張先生亦沒有表明會替‘閱讀費’負上責任。本席認為，根據她的字眼，張先生極其量只在安撫調解員而矣，勸告調解員不用擔心。綜觀她的板本，張先生亦沒有作出承諾，表明承擔調解員的費用。”

40.  The above submission is clearly a distorted and wrongful reading of the learned Adjudicator’s reasons for judgment.  At paras 42‑55 thereof, the learned Adjudicator was dealing with the factual issue of whether there was an oral promise or representation by the defendant to pay the claimant the perusal fees.  This arose from the claimant’s case that she had relied on the oral representations made by Mr Cheung of the defendant in believing that the perusal fee would be paid.

41.  The Adjudicator rejected the claimant’s evidence on the alleged oral representation.  He preferred Mr Cheung’s evidence and found that the defendant had explained to the claimant that she must obtain approval from the Clients regarding her perusal fee quote. 

42.  Then, starting at paras 56 to 61, the Adjudicator moved on to consider another issue arising from the claimant’s claim as to whether there was in any event an implied term in the MA to require the defendant to pay.  He further rejected it.  One of the bases for refusing to imply such a term is because implying such a term would be in conflict with his earlier factual finding that the defendant had explained to the claimant that she must seek approval from the Clients on her perusal fee quote. 

43.  In the premises, the Adjudicator did not, as now contended by the claimant, “imply terms into the MA requiring the submission of a quotation of preparation fees by the claimant”. 

44.  I see no error of law in these parts of the reasons for judgment and the claimant’s said ground of appeal is misconceived.

C2.3 Ground 3 – The credibility ground

45.  This ground can be summarised as follows: 

(1)   The learned Adjudicator erred in law in requiring himself to make an assessment of the claimant’s credibility vis-à-vis the defendant’s witness credibility, when the express terms of the MA, AMS and ATM were sufficiently clear on its face to authorise the claimant to engage in preparation time and subsequently to charge therefor.

(2)   Even if assessment of credibility was required, the Adjudicator erred in disbelieving her in light of the written evidence in her two letters dated 19 August 2010 and 1 September 2010.

46.  The Adjudicator’s reasons in relation to this are at paras 41 to 55 of the reasons for judgment quoted above.

47.  The claimant’s submission at para 45(1) above is again misconceived.  The learned Adjudicator, after rejecting her case on express term, was entitled and in fact should consider the factual question of whether there was any oral representations made by the defendant to (as suggested by the claimant) pay her the perusal fee.  The Adjudicator rejected the claimant’s evidence and preferred that of the defendant’s witness, Mr Cheung.  See also paras 64(b) and 68-70 of the reasons for judgment, which are as follows:

“64. 在覆核聆訊中，調解員強調兩點：-

a) 公司並沒有嘗試向顧客索取調解員的9小時費用，只索取3小時的費用。這樣，公司也違約、失當；

b) 張先生從未對8月12日和14日之事件和對話，作出回應。張先生只在，到本案弄上法庭後，在書面供詞上才交帶該兩天的對話內容。張先生只在後期才捏造這些供詞來反駁申索方。張先生的証供並不可信。

…

68. 另外，關於8月12日和14日的對話，本席留意到，張先生的確在後期才有清楚解釋。惟在8月24日的兩封文件中，張先生已清楚反駁申索方的立場，指出：-

a) 公司不會在顧客付款前，預先繳付調解員；

b) 調解員並沒有預先通知（或要求公司通知）顧客‘閱讀費’的問題；

c） 畢竟，顧客未簽署ATM協議。顧客亦沒有同意付款。

69. 本席認為，公司在8月24日的文件中已概括地反駁了調解員就該兩日事件的指控。公司已採用較短的篇幅來回應申索方。

70. 本席相信張先生是一名誠實可靠的証人。本席並不相信申索方的板本。

48.  There is clearly no error of law committed by the Adjudicator in so doing.

49.  Insofar as assessing and then preferring the credibility of defendant’s witness to that of the claimant, the Adjudicator had already taken into account of the matters the claimant now raised at para 45(2) above.  As far as I can see, the conclusion he had made is one that is fully open to him to come at in light of all the evidence.  There is again no error of law.  See para 25 above.

C2.4 Ground 4 – The payment ground

50.  The claimant says the Adjudicator erred (at paras 47‑50, 53, 54 and 58 of the reasons for judgment) in ruling that the defendant is not responsible for the claimant’s fees when it is self-evident on the face of Clause 18 (read together with the payment clauses set out in the ATM and AMS), the defendant was indeed responsible for billing the Clients and collecting the mediator’s fee at the rate of $2,800 in accordance with the claimant’s itemized statement.  If necessary, the claimant also says the contra preferentem rule should apply which would support her construction.

51.  This is in effect a repeat or flip side of the arguments raised under Ground 1.  I would similarly reject it as unarguable for the above reasons.  In my view, the contra preferentem rule has no place to play as the meaning of Clause 18 is clear.

C2.5 Ground 5 – The mediation services ground

52.  Under this ground, the claimant submits that:

(1)   The Adjudicator had failed (at paras 46, 47and 61 of the reasons for judgment) to take into account the breath and unrestrictive nature of the mediator’s services expected to render under Clause 18, when the mediator’s fee is not expressly defined in the MA, ATM and AMS.  This fee, properly construed, should include the perusal fee. 

(2)   Further, the Adjudicator erred in not attaching any weight to the defendant’s own evidence at trial supporting the claimant’s contention that perusal of documents in advance of mediation is an integral part of the mediator’s paid duties.

53.  I also see no merits of this ground.  The question is not whether the mediator’s fees should or should not properly include the perusal fee.  The question is whether the defendant was under any contractual obligation to pay on its own the claimant the “mediator’s fees”.  The learned Adjudicator had concluded that there was none.  Thus, whether the mediator fees (if chargeable) should or should not include the perusal fee is neither here nor there for this purpose.

C2.6 Ground 6 – The failure to bill ground

54.  It is said under this ground that the Adjudicator erred in failing to consider the correct interpretation of Clause 18, which required the discharge of the defendant’s duty to bill the Clients for the claimant’s perusal fee in accordance with the claimant’s itemized statement to enable her to be paid.

55.  In relation to this, the Adjudicator dealt with it at paras 64 to 67 of the reasons for judgment as follows:

“64. 在覆核聆訊中，調解員強調兩點：-

a)   公司並沒有嘗試向顧客索取調解員的9小時費用，只索取3小時的費用。這樣，公司也違約、失當；

b)   張先生從未對8月12日和14日之事件和對話，作出回應。張先生只在，到本案弄上法庭後，在書面供詞上才交帶該兩天的對話內容。張先生只在後期才捏造這些供詞來反駁申索方。張先生的証供並不可信。

65. 對以上論點，經考慮後，本席認為申索方（調解員）一直之立場是，負責人是公司，負責人不是顧客。顧客不須支付閱讀費。根據這立場，無論公司有否向顧客發出9小時的發票，顧客亦不需支付。申索方仍然是兩手空空，拿不到‘閱讀費’。

66. 無論如何，本席相信，顧客最終亦不會繳付‘閱讀費’。本席考慮了，調解當天，顧客聽到6小時‘閱讀費’後，拒絕簽署ATM協議。就此，顧客對‘閱讀費’的不滿，可見一斑。

67. 因此，調解員不能証明，如公司發出9小時發票後，顧客便會付款。本席認為，假如公司有責任，代調解員發出9小時之發票，而公司違約並沒有這樣做，調解員亦不能証明到，此違約‘引至’到調解員損失。這是因為顧客仍然不會付款，調解員仍然是兩手空空。”

56.  The Adjudicator was of the view that, even if the defendant was in breach of its duty to issue the bill in relation to the perusal fee, it was not causative to the claimant’s loss as, on the evidence[1], the Clients would not have paid the fee even if so billed.  In my view, the Adjudicator had committed no error of law in this conclusion.  Further, his conclusion also cannot be faulted on the basis that the claimant was not even contractually entitled to bill the Clients when the ATM was not even signed.  In other words, the Clients had never entered a contractually binding agreement to appoint her as their mediator or to pay her any fees (see para 35 above).

57.  This not an arguable ground of appeal.

C2.7 Ground 7 – The commencement of performance ground

58.  The claimant argues that the Adjudicator erred in law in failing to consider that the parties had already entered into a contractual relationship before the MA was signed, as on 11 August 2010, the claimant was already asked by the defendant in writing to collect from its office the documents on an urgent basis to peruse them for the intended mediation.   Hence (argues the claimant), the subsequent signing of the MA must have the “retrospective effect” on any work that had already been carried out by the claimant (i.e., the perusal of documents as part of the preparation). 

59.  I am not sure whether this was an argument raised before the Adjudicator at the trial, and thus it could be said that he had failed to consider it.

60.  But in any event, I see no merits in this argument.  This argument is still dependent upon the contractual obligations imposed on the defendant under the MA.  As I have said above, the Adjudicator was correct in concluding that Clause 18 did not impose any obligation on the defendant to pay the claimant on its own.  As such, there is also no question that the defendant was under any contractually obligation to pay for the perusal work.

C2.8 Ground 8 – The principal and agent ground

61.  The claimant says it was wrong for the Adjudicator to find at para 54 of the reasons for judgment a principal and agent relationship between her and the defendant.

62.  I have read para 54 of the reasons for judgment (as quoted above).  The Adjudicator simply did not make any “finding” of principal and agent relationship between the parties.

63.  The claimant’s “complaint” is without basis and this ground is again misconceived.

C2.9 Ground 9 – The admissibility of oral evidence ground

64.  The claimant says it was wrong for the Adjudicator at paras 44 to 55 of the reasons for judgment to admit the defendant’s oral evidence that she was required to quote for her preparation and perusal fee for the purpose of construing the MA, the ATM and AMS.

65.  Again, this ground is based on a misreading of the reasons of judgment.  As I said above, this part of the reasons for judgment is dealing with factual issue as to whether the defendant had made an oral promise to the claimant to pay her perusal fee. This was not related to the construction of the relevant clauses in the contractual documents.  In dealing with a factual question, the Adjudicator was fully entitled to take into account this part of the evidence.

66.  There are clearly no arguable merits in this ground.

C2.10 Ground 10 – The speculation ground

67.  This is related to the Adjudicator’s conclusion at paras 61, 64‑70 of the reasons for judgment that the Clients would not have paid the perusal fee even if the defendant had billed them for it.  The claimant says this is wholly speculative as the Clients were not at the trial to give evidence and be cross-examined.

68.  However, the Adjudicator came to this part of the conclusion based on the claimant’s own evidence (as recorded at para 24 of the reasons for judgment) that the Clients refused to sign the ATM after she had explained to them her charging of 6 hours of perusal fee (while the mediation was intended to last for 3 hours).  He was entitled to have regard to this part of the evidence.  In my view, this is a conclusion reasonably open to the Adjudicator with this evidence before him.  In any event, it cannot be said to be absurd or irrational.  There is thus no error of law committed by the Adjudicator in this conclusion.

69.  I also therefore find this ground unarguable.

C2.11 Ground 11 – The irrelevant consideration ground

70.  This ground is again related to paras 45‑55 of the reasons for judgment.  It is contended by the claimant that the Adjudicator had wrongly taken into consideration irrelevant matters in this part of his reasoning.  In justifying his reasoning, the claimant said the Adjudicator had wrongly drawn and relied on the evidence of a question of a general nature posed by the claimant at the Seminar Discussion, which was (further contended by the claimant) “entirely irrelevant to a determination of the issue before the Adjudicator viz ‘should the defendant pay the claimant’s preparation/perusal fees?’ ”.

71.  This ground is yet again premised on the claimant’s distorted reading the Adjudicator’s reasoning. As I repeatedly mentioned above, at this part of the reasoning, the Adjudicator was considering the factual issue as to whether there was an oral promise or representation made by the defendant to pay the perusal fee by reason of the exchanges between the claimant and Mr Cheung of the defendant under the 11 August Conversation and the Seminar Discussion.  In determining such a question, I cannot see how it can be remotely suggested that what was said by the claimant during the Seminar Discussion is an irrelevant matter, and the Adjudicator should not have taken into consideration.  Quite to the contrary, in order to resolve the factual dispute as to the content and effect of the Seminar Discussion, the Adjudicator was clearly entitled to, and in fact should, take that into account in the context of the entire discussion. 

72.  I would also dismiss this ground as unarguable.

C2.12 Ground 12 – The wrong finding ground

73.  Under this ground, the claimant says generally that:

(1)   The Adjudicator was wrong in concluding that the defendant is not obliged to pay her the preparation and perusal fees because there was no (a) written, (b) oral, and/or (c) implied term to support such an obligation.  This is so because, contended the claimant, the payment enabling clause is clearly set out in Clause 18 and supported by the payment methods stipulated in the ATM and AMS.

(2)   In any event, if Clause 18 is not clear enough, an implied term to that effect should also be incorporated in light of the factual matrix leading to the MA.  The implied term would meet the five legal principles rightly cited and relied on by the Adjudicator at paras 55‑56 of the reasons for judgment.

74.  This ground effectively is a catchall ground repeating what have been set out in the above other grounds of appeal.  It adds nothing to them.

75.  For the same reasons I have said above in rejecting all the other grounds of appeal, I would similarly reject this ground as without any arguable merits.

D. CONCLUSION

76.  In my view, the learned Adjudicator had carefully considered the claimant’s claim with the evidence before him and applied the correct principles of law whenever appropriate.  The claimant has not demonstrated in all her proposed grounds of appeal any arguable error of law in the Adjudicator’s reasoning and conclusion.

77.  I would therefore refuse her application for leave to appeal the Order and the Review Order.