LEE SIU FONG MARY v. NGAI YEE CHAI

DCCJ 6225/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6225 OF 2002

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J U D G M E N T

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Language

1. At the outset of the trial, both parties agree that the court can receive evidence in Chinese while counsel can submit in English if they feel necessary to do so. It turns out that counsel do make their final submission in English. All the pleadings are also in English. I, therefore, feel appropriate to render judgment in the same language.

Dispute

2. The present dispute is between two ex-lovers. The woman (Plaintiff) sues the man (Defendant) for the balance of eight loans in the amount of HK$183,000. Plaintiff says Defendant promised on 21.5.1995 to repay her 6 years later, i.e., by 21.5.2001.

3. Of the $183,000, Defendant admits he only owed Plaintiff $92,000. He denies he had ever borrowed the other $91,000 from her.

4. Defendant admits that on 21.5.1995 he proposed to repay Plaintiff what he owed her six years later. However, Plaintiff did not consent so there was no agreement. The claim was only filed on 7.10.2002 -- more than 6 years after 21.5.1995. Defendant contends that Plaintiff is now time-barred to sue for any debt, which is in any event merely $92,000 rather than $183,000.

5. The factual issues in dispute are thus:

(i)	whether Plaintiff had lent Defendant the four disputed sums totalling $91,000 (three of $17,000 each plus another of $40,000) between 1994 and 1995; and
(ii)	whether on 21.5.1995 Plaintiff had accepted Defendant’s offer to repay her 6 years later.

6. There is also a legal issue involved. Defendant pleads limitation as part of his defence. Counsel for Plaintiff argues that Defendant should be estopped from relying on such defence, as the latter made representation to Plaintiff that he would repay her by 21.5.2001.

Plaintiff’s version

7. Plaintiff adopts her two statements (Bundle No. 85-89 and 91-93) as her evidence in chief. In court, she says she began an intimate relationship with Defendant in October 1993. Defendant often told her he was short of money to pay for the mortgage of his flat and his taxi. Between February 1994 and March 1995, she lent money to him many times. Plaintiff says she cannot remember all the occasions so she now only sues for the eight loans, which she can definitely remember.

8. There are eight sums pleaded in the original Statement of Claim (Bundle No. 3-5). The total amounts lent and due after a set-off of $90,000 are $283,000 and $193,000, respectively. The figures are later changed to $273,000 and $183,000, respectively, in the Amended Statement of Claim (Bundle No. 27-29) amid other amendments. On the first day of trial, the Amended Statement of Claim was further amended (Bundle No. 30A-30E) by Plaintiff’s pleading she had relied on the representation made by Defendant on 21.5.1995 that he would repay her by 21.5.2001, otherwise she would have commenced legal action to recover the loans within the limitation period. Plaintiff says Defendant should be estopped from arguing that limitation had run from 21.5.1995.

9. The dates and amounts of the eight loans in question are as follows:

i.	8.2.1994	$50,000;
ii.	25.5.1994	$20,000;
iii.	9.12.1994	$100,000;
iv.	12.12.1994	$12,000;
v.	22.2.1995	$17,000;
vi.	16.3.1995	$40,000;
vii.	in or around 1994	$17,000;
viii.	in or around 1994	$17,000.

(The dates or amount that have been amended in the Amended Statement of Claim are underlined.)

10. There are bank or cheque records (Bundle No. 95-100) in relation to the first four loans totalling $182,000. Defendant admits having borrowed these four sums from Plaintiff. On the other hand, he gave her $90,000 on 3.8.1994. Plaintiff now consents to have this amount set off what Defendant has owed her. Thus, it is common ground that by 12.12.1994 (date of the 4^th loan), Defendant only owed Plaintiff $92,000.

11. There are, however, no bank or cheque records to show that Defendant had received the 5^th to 8^th sums from Plaintiff.

12. Plaintiff says she can remember that the 7^th sum was given to Defendant between 10^th and 20^th September 1994 as it was near her birthday, which is 13^th   September. She gave Defendant cash of $17,000, which amount was close to the taxi mortgage repayment the latter had to make each month.

13. The 8^th sum was also lent to Defendant for him to repay his taxi mortgage. It was given to Defendant in cash as well. Plaintiff says the date was between 10^th and 20^th November 1994.

14. As to the 5^th sum, Plaintiff gave it to Defendant on 22.2.1995 because that day was the latter’s birthday. She knew he needed money to pay for the mortgage of his taxi. To make him happy on that special day, she gave him a cheque of $17,000.

15. Regarding the 6^th sum, Plaintiff says Defendant wanted to buy an additional taxi by hire and purchase. In December 1994, she gave him $100,000 and $12,000 (the 3^rd and 4^th loans, respectively) to pay for the down payment. However, Defendant wanted to buy a more expensive one, so she gave him another $40,000 to pay for the higher-price taxi in March 1995, when it was time for him to take delivery of the vehicle.  Plaintiff says this was the last loan she had made to Defendant.

16. Plaintiff says she was without job between 1993 and 1996 but her previous employer had given her half a million dollars as severance pay in 1993. She thus had money. She liked to play big-stake mahjong, so she always had a lot of cash on hand. In relation to the 7^th and 8^th loans ($17,000 each), she just took money from home to give to Defendant in September and November 1994. As to the 5^th loan, she gave Defendant a cheque of $17,000 which was drawn in the latter’s name. Regarding the 6^th loan, Plaintiff says she took cash of $40,000 over the bank counter to give to Defendant subsequently.

17. Plaintiff says her relationship with Defendant turned sour in 1995. They had stopped seeing each other since late 1995. She asked him for repayment constantly. Defendant admitted owing her money but said he had no money to repay her. None of them had mentioned in their dialogues the exact amount of money that Defendant need to repay.

18. On 21.5.1995, Plaintiff called Defendant again. The latter still said he had no money. He ignored her suggestion of repayment by instalments. He said he could not sell his taxis at that time. Plaintiff asked him to give her a deadline. Defendant then said he would repay her on 21.5.2001. Plaintiff first rejected this proposal, viewing that she had to wait too long. Later, in the same telephone conversation, Defendant said if he sold one of his taxis in 2001, he would immediately repay her. Plaintiff asked him what about if he would not. He said it would be up to her to sue him then. Plaintiff said she would get a lawyer to sue him if he would not repay her as promised. Defendant said all right.  Plaintiff thus agreed to let him repay by 21.5.2001.

19. Despite the agreement, from time to time between 1995 and 2001, Plaintiff would ask Defendant for repayment. She hoped he could repay her earlier than he had promised, as she had no money then. However, Defendant failed to meet her request. In 1997, Plaintiff knew Defendant had sold one of his two taxis. She called him for repayment. The latter just said he had no money left.

20. Plaintiff says Defendant admitted owing her money. At one stage, he even admitted owing her three hundred odd thousand dollars but he never confirmed the exact figure of the outstanding debt.

21. On 21.5.2001, Plaintiff called Defendant. The latter again said he had no money and he would not repay her. Plaintiff then instructed a solicitor to press for repayment. The solicitor then issued a letter on 28.5.2001 (Bundle No. 130) to Defendant but the latter denied any liability.

Defendant’s version

22. Defendant adopts his statement (Bundle No. 80-83) as his evidence in chief. He admits taking the 1^st to 4^th sums from Plaintiff but denies owing her the 5^th to 8^th ones. The 1^st and 2^nd loans amounted to $70,000. In August 1994, Plaintiff asked for $90,000 from him. Defendant sold some of his shares to raise money for her. He then still had shares worth over $300,000.

23. In December 1994, Defendant borrowed the 3^rd and 4^th sums ($100,000 and $12,000, respectively) from Plaintiff. He had clearly told Plaintiff that the $112,000 was borrowed for buying shares. He bought 20,000 shares of a company at around $5.35 per share. The $107,595.41 transaction on 16.12.1994 (Bundle No. 121) represents the value of the 20,000 shares.

24. Defendant says that in 1994 and 1995 he had to maintain his family, which consisted of his wife and two sons. He had to pay for his home mortgage. His first taxi mortgage also required monthly repayment of slightly more than $16,000.  All these expenses exceeded his income but he could still manage, as he had money in his bank accounts. He had 4 accounts: one in the Hang Seng Bank (Bundle No. 107-118), one in the Chiyu Bank (Bunndle No. 119-129) plus one saving account and one cheque account both in the Standard Chartered Bank. Defendant denies he had to borrow from Plaintiff $17,000 several times to meet his first taxi mortgage.

25. Defendant admits buying a second taxi, of which he took delivery in March 1995. The price of the vehicle was $160,000. The licence cost was $1,950,000 so the total price of this second taxi was $2,110,000. He first paid $50,000 as down payment. In March 1995, he paid another $110,000 when the vehicle was delivered to him. The money all came from the shares he sold.

26. Defendant says his relationship with Plaintiff began to change in April 1995. She asked him to repay what she had lent him without mentioning any exact figure. He could not repay her then.

27. On 21.5.1995, Plaintiff asked Defendant again on the phone for repayment. He replied he had no money. Plaintiff said if he did not repay, she would get someone to hit him. Defendant was furious and said off-handedly that he would repay 6 years later. Plaintiff rejected his offer. Then they argued in a heated manner. He did not hear her ever accepting his offer. He denies he mentioned selling his taxi. There was simply no agreement. In the following two months, she called him on a number of occasions to press for repayment. He ignored her.

28. Defendant says he had thought of repaying Plaintiff but he was so angry at her mention on 21.5.1995 of getting someone to hit him that he would not like to talk to her anymore. Thus, he had not made any repayment to her. He heard no more from Plaintiff in the following five odd years until he received her solicitor’s letter in around June 2001. Then, Plaintiff called him. He told her that the amount on the letter ($283,000) was not right. There was no confirmation of any amount as correct.

29. Defendant says he did sell one of his taxis in late 1997. After making all deductions, he got $600,000 odd. He denies that Plaintiff had contacted him after the sale.

30. Defendant also says that in July 2001, some people went to his home to ask for repayment. They claimed to be friends of  ‘Ah Ben’. Defendant says ‘Ah Ben’ was Plaintiff’s nickname. He ignored those people.

The Four Disputed Loans

31. Defence Counsel points out to Plaintiff that the year pleaded in relation to the 7^th and 8^th loans had been changed from 1995 to 1994. The date, amount and manner of payment with respect to the 6^th loan and in whose favour the cheque on the 5^th loan was drawn had all been amended in the Statement of Claim.

32. In reply, Plaintiff says she might have got the dates wrong but she was sure she took the $40,000 in relation to the 6^th loan over the bank counter from a teller on 16.3.1995. Her statement is, however, contrary to the bank record, which shows that the $40,000 was an NTW (Transfer Withdrawal) transaction through an Automatic Teller Machine (ATM) [Bundle No. 104]. Plaintiff refuses to accept the bank record as accurate. She says the record might be wrong and she is sure she took $40,000 cash from a teller over the counter to give to Defendant later.  

33. As to the cheque relating to the 5^th loan, Plaintiff says it was definitely drawn in Defendant’s favour. She blames her solicitor for misunderstanding her and making a mistake here by pleading in the original Statement of Claim that the cheque was designated to another person. She says the solicitor also got it wrong by stating for her in her statement (Bundle No. 88, para. 11) that this loan of $17,000 was made in cash rather than by cheque. Plaintiff says she can remember this loan in particular, as she purposely gave Defendant the cheque on his birthday. She is sure that 22^nd  February is Defendant’s birthday for she had seen that on his identity card. Plaintiff, however, changes to say that she may be wrong when Defendant produces his identity card (Bundle No. 131) in court to show that his birthday is actually 11^th  February.

34. Plaintiff excuses herself by saying that she does not have a good memory. As things happened almost ten years ago, her recollection now is vague. She alleges that she had made more loans to Defendant other than the eight sums claimed. She will not sue for the others because she cannot quite remember those other transactions. Yet, she is sure she had lent the 5^th to 8^th sums to Defendant as well as the 1^st to 4^th sums so she only claims these eight sums now. Plaintiff agrees with Defence Counsel that there is no documentary or corroborative proof in relation to the four disputed sums. She only has her memory to rely on. She says she may have mixed things up but she is sure that she had lent those sums to Defendant.

35. Defendant denies he had ever taken the 5^th to 8^th sums from Plaintiff. He merely admits having borrowed the 1^st to 4^th sums. He says he had means to meet ends meet in 1994 and 1995 even though his expenses exceeded his income, as he had money in his bank accounts. He also had a lot of shares to sell, so he need not ask Plaintiff for money to pay for the first taxi mortgage or for the down payment of the second taxi.

36. Defendant got from Plaintiff $100,000 plus $12,000 between 9^th and 12^th December 1994. He then used the money to buy shares, not to pay for the second taxi. Bundle No. 121 shows that a few days later, i.e., on 16.12.94, there was an indeed an out transaction - No Book Transfer (NTR) in his account in the odd amount of $107,595.41. It supports Defendant’s saying that he used most of the $112,000 borrowed from Plaintiff to buy 20,000 shares at around $5.35 per share. On the other hand, there is no evidence apart from Plaintiff’s own words that Defendant used the loans of $112,000 to pay for the down payment of his second taxi.

37. Though Defendant admits buying a second taxi, he says he paid $50,000 as down payment first and then in March 1995 a further $110,000. Counsel for the Plaintiff submits that Defendant thus had to borrow money from Plaintiff. However, Plaintiff’s own version is that she took cash of $40,000 on 16.3.95 over the bank counter to give to Defendant. Her Hong Kong Bank record (Bundle No. 104), however, shows the $40,000 transaction that day was by NTW (Transfer Withdrawl) through an Automatic Teller Machine (ATM). It is true that Defendant had an account in the Hang Seng Bank (of the Hong Kong Bank Group and transfer between the two banks can be made) but his bankbook shows no transfer deposit on or around that day (Bundle No. 115).

38. Though Plaintiff does not agree to her bank record, I find the record must be correct. That means she had transferred $40,000 to another account instead of taking cash. Plaintiff says she has a cheque account in the same bank. It is not known if she had transferred the $40,000 to her cheque account or anyone else’s account. One thing for sure, there is no evidence to show that the $40,000 was transferred to Defendant’s account. There is also no evidence that Defendant had got $40,000 by cheque. After all, Plaintiff says she gave this sum to Defendant in cash to pay for his second taxi -- not by transfer or by cheque. Her allegation of lending this sum to Defendant is therefore not supported by any proof apart from her own words, which I find as unreliable.

39. On the other hand, Bundle No. 122 shows that on 9.3.1995 Defendant had an automatic payment (AUT) of $43,210.84 deposited in his Chiyu Bank account. Then on 17.3.95, there was another $83,029.14 deposited by automatic payment. These odd amounts do look like proceeds of shares selling. Then between 10^th  and 17^th  March, Defendant took out a total of $109,000, which was very close to his statement that he paid $110,000 for the second taxi in mid-March 1995. These facts tend to support Defendant’s saying that he sold his shares to pay for the second taxi rather than by borrowing from Plaintiff.

40. Plaintiff says that around September and November 1994, she always had a lot of cash on hand as she always played mahjong on big stake. Therefore, she need not take out two sums of $17,000 from the bank to give to Defendant. However, her bank record (Bundle No. 102) shows that between 10^th and 20^th September, she had to withdraw $1,000 to $9,000 on a total of five occasions. Between 10^th and 20^th November, she also had to withdraw $2,000 from her account on one occasion (Bundle No. 103). Plaintiff says she only has the two accounts in the Hong Kong Bank (one is a saving account; the other is a cheque account). The fact is she need to withdraw money of relatively small sums at those material times. It is hard to believe she had won sufficient money and had a lot of cash on hand during those two periods in 1994 to give $17,000 to Defendant each time.

41. Counsel for Plaintiff submits there is at least bank proof of the 5^th loan. The relevant bank record (Bundle No. 104), however, shows no transfer by Plaintiff into her cheque account on or around 11^th February (Defendant’s birthday) in the year of 1995. Rather, it shows she made one transfer of $17,000 on 22.2.95. Plaintiff suggests that this transfer was to honour the cheque, which she gave Defendant on his birthday. The transfer, however, was made eleven days after his birthday. Though the amount was indeed $17,000, it does not fit Plaintiff’s allegation that she gave the cheque to Defendant on his birthday to make him happy on such special day. If she did give the cheque to him on his birthday, i.e., 11^th February, it could not be honoured when the transfer to the cheque account was only made eleven days later. Plaintiff says she might be mistaken about the date. Yet, she is adamant this $17,000 by cheque was given to Defendant for the special purpose of pleasing him on his birthday. I find there is no room for any mistake here. The evidence just does not tally with Plaintiff’s version. I find her unreliable and actually incredible on all the four disputed sums.

The Alleged Agreement

42. Plaintiff in para. 14 of her statement dated 24.6.2004 (‘the June statement’; Bundle No. 85-89) says that on 21.5.1995 she rejected Defendant’s offer to repay only 6 years later. Then she kept on demanding repayment in the days to follow. However, in paras. 2-4 of her supplemental statement dated 13.11.2004 (Bundle No. 91-93) Plaintiff tries to say that in fact more things were said on the phone on 21.5.1995, so much so that she had actually accepted Defendant’s offer.

43. Plaintiff’s evidence in court is in line with her supplemental statement, which was filed on 15.11.2004 – only three days before the trial. This supplemental statement was written almost five months after the June statement. It is very different from Plaintiff’s previous statement in that it now states she had accepted Defendant’s offer to repay her six years later. It is in direct conflict with her unequivocal declaration in the June statement that she had rejected his proposal.

44. Defence Counsel submits that the supplemental statement of Plaintiff and her testimony in court are all recent make-up, or such important information of acceptance would have appeared in the June statement. Plaintiff says she had given only one Chinese statement to her solicitor in May 2004. All the details were supplied to the lawyer. Now, she does not know why her June statement is so brief or why there comes the supplemental statement. Her lawyer interpreted the June statement to her but she failed to catch everything there and just let it be. She did not understand that English statement fully.

45. Defence Counsel submits that Plaintiff’s version is not plausible, as a competent lawyer acting on behalf of Plaintiff would not allow this to happen. I cannot speculate on the competency of the lawyer preparing the June statement for Plaintiff. I give Counsel for Plaintiff opportunity to produce proof that Plaintiff had indeed told her lawyer before the June statement was made about her having accepted Defendant’s offer of delayed repayment. There is no response. As such, there is simply no good explanation as to why the significant issue of acceptance was only raised days before trial and in direct conflict with Plaintiff’s previous statement. I do not believe Plaintiff had given such acceptance information to her lawyer earlier and the latter would ignore it. There is no evidence to support her serious allegation that her lawyer was so negligent. It is indeed hard to imagine any lawyer would fail to transpose such important information from instruction to statement. It is to be noted that this is the third time Plaintiff put the blame on her lawyer for inconsistency (see para. 33 above). I find that Plaintiff just tries to find an easy way out when she cannot well explain the situation; she just shifts the blame to her lawyer. Plaintiff signed the June statement after it had been interpreted to her. If that were not in accordance with her instruction and something so important was missing from the statement, she certainly would ask her lawyer to rectify then. I do not believe she would fail to notice the accuracy of the content of the June statement. Her saying that she did not comprehend entirely what her lawyer interpreted to her is just another excuse for something inexplicable. I have no doubt that Plaintiff rejected Defendant’s offer of delayed repayment as soon as it was made on 21.5.1995, just as she pleads in the June statement. She was simply not willing to wait for six years at that time. I do not believe that she immediately changed her mind on the phone. I find Plaintiff dishonest here. I reject her evidence on acceptance.

46. On the contrary, Defendant’s evidence is simple and straightforward. He does have some difficulty with the figures relating to the price of the second taxi but his statement the he paid $110,000 for it out of his own money from selling shares gains support from the bank record.

47. Plaintiff says she continued to chase Defendant for payment between 21.5.1995 and 21.5.2001 on an irregular basis: sometimes twice a week; sometimes once in as long as 3 months. Everytime, Defendant said he had no money.

48. As opposed to this, Defendant says Plaintiff only pressed for repayment in the first two months after rejecting his offer on 21.5.1995. Since then, he had heard nothing from her until he got her solicitor’s letter in around June 2001.

49. The two versions are entirely different. It is unbelievable that Plaintiff would press for payment for such a long period of six years, when it was quite clear after 21.5.1995 that Defendant was not going to repay her early as she demanded. On the other hand, Defendant says there was no agreement reached on 21.5.1995. Plaintiff continued to chase for payment but to no avail, so she stopped after two months. Defendant’s evidence is plausible. I accept his testimony. I find he narrates what transpired honestly. He is credible.

Estoppel

50. I have found Plaintiff incredible and unreliable on the four disputed sums and on the alleged agreement. That is not the end of the matter. Defendant admits that $92,000 of the loans remains unpaid. He also admits that on 21.5.1995 he did mention making repayment six years later. Plaintiff pleads that she had relied on Defendant’s representation on 21.5.1995 that he would repay her six years later. Although Defendant said that at the anguish of the moment, Plaintiff did take it seriously. After all, Defendant is not pleading he did not make an offer; he only contends that she had not accepted it.

51. Though I have found Plaintiff incredible on the two factual issues as set out above, the facts remain that she did not sue Defendant immediately after she stopped pressing for payment in the second half of 1995. Plaintiff says Defendant promised to repay her six years later, so she would give him time. She really waited till 21.5.2001. Only a few days before the deadline, i.e., on 16.5.2001, she went to the bank to get records to check the entries in her account upon her friend’s advice. Defendant still failed to repay her after 21.5.2001. She then (and only then)went to a lawyer to start legal proceedings. The first solicitor’ letter was issued on 28.5.2001.

52. Plaintiff is so insistent that Defendant should repay her. I do not believe that, between 21.5.1995 and 21.5.2001, she had given up her right to claim for one moment. The undeniable and undisputed facts described in para. 51 above indicate that Defendant had at some stage accepted to wait till 21.5.2001. It must be that when she failed in her effort to get Defendant repay during those two months after 21.5.1995, she realized either she had to start lawsuit then or she must accept Defendant’s suggestion of repaying only by 21.5.2001. She relied on Defendant’s representation and chose the latter option. Such acceptance might come too late because Defendant’s offer lapsed as soon as she rejected it on the phone on 21.5.1995. Furthermore, according to the evidence of Defendant which I believe, Plaintiff had never told him that she would accept his suggestion. I find she just kept it to herself that she would now wait till the deadline. There was no agreement reached but the circumstance does give rise to estoppel in favour of Plaintiff.

53. Counsel for Plaintiff argues that even if the court would find there was no agreement, Defendant should still be estopped from pleading that the limitation period had lapsed as counted from 21.5.1995 because he had represented to Plaintiff that he would repay only by 21.5.2001. In other words, Counsel for Plaintiff is saying that time should only run from 21.5.2001. If so, Plaintiff would still be acting within time when she filed her claim on 7.10.2002.

54. In support of his argument, Counsel for Plaintiff cites the case of Chuang Yue Chien Eugene v. Ho Yau Kwong Kevin [2002] 4 HKC 245. In that case, it was said Defendant made a representation to Plaintiff that the former would repay the outstanding loans once he ceased to be a US citizen. Plaintiff pleaded that if not for such promise, he would have instituted legal proceedings within the limitation period. Ma J. (as he then was) held that estoppel could be pleaded to prevent a limitation defence being taken.

55. Defence Counsel in the present case has not cited any authority to say Ma J was wrong in his judgment. I accept the correct position of the law is that estoppel can be so pleaded.

56. In the present case, I find Plaintiff first rejected Defendant’s suggestion on 21.5.1995. After a relatively short period of about two months, she started to rely on the representation made by him that he would repay her though as late as 21.5.2001. Her subsequent action was all consistent with such reliance. She refrained from instituting legal proceedings against him when she could have done so any time between the two dates. She did wait, relying on Defendant’s words. She only took legal action when Defendant failed to honour his words.

57. To conclude, I find that Plaintiff can only prove Defendant has owed her $92,000 – the amount which he admits. She fails to prove the lending of the other $91,000 to him. I also find that though there was no agreement between the two on 21.5.1995, Plaintiff had subsequently relied on Defendant’s representation to repay by 21.5.2001. If not for such reliance, she would definitely have taken out legal proceedings against him within the limitation period. I rule that Defendant should be estopped from pleading such defence that the limitation of six years should run from 21.5.1995. In the circumstance of the case, limitation ought to run only from the deadline of 21.5.2001. The claim filed by Plaintiff on 7.10.2002 is not time-barred.

Award & Interest

58. I rule that Defendant has liability on $92,000 of the claim. I order him to repay Plaintiff this amount with interest at 8% per annum from 21.5.2001 until the date of this judgment and thereafter at judgment rate until clearance.

Costs

59. As to costs, Plaintiff wins part of her claim only – that part which Defendant admits quantum but disputes liability. She loses on all the four disputed sums (the 5^th to 8^th loans). Her counsel says she should still get all the costs or at least part of the costs because the claim is for a single remedy, though consisting of several sums. Defence Counsel, on the other hand, submits Plaintiff is in fact making “a number of discrete claims for different sums”. He cites In re Elgindata Ltd. (No. 2) 1 WLR 1207 and Vincent v. SCMP (no. 2) [2004] 2 HKC 570 to argue the proper order to make in the circumstance is one of no order as to costs.

60. I agree with Counsel for Plaintiff that the claim in the present case is only one claim of debt, though of eight separate sums.  Nevertheless, I find that Plaintiff fails to prove that she had lent the four disputed sums to Defendant or there was an agreement made on 21.5.1995. She only succeeds on part of her claim due to Defendant’s own admission of borrowing the $92,000 and his promise on 21.5.1995 to repay by 21.5.2001. It enables her counsel to argue successfully on estoppel – an issue raised by the Plaintiff’s side at the last minute before the trial. In other words, Plaintiff has wasted most of the effort spent on the proceedings. The time spent by both sides on arguing estoppel is quite minimal.

61. In the case of In re Elgindata (No. 2) (supra), Nourse LJ stated certain principles on costs. At 1214B of his judgment, he said: “The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.” (emphasis added) I think in the circumstance of the present case, it is right for the court to deprive Plaintiff most of her costs.

62. Defendant all along admits he told Plaintiff on 21.5.1995 that he would repay by 21.5.2001. On the issue of estoppel, Plaintiff just has to state that she acted on such words of Defendant and refrained from instituting legal action till the 21.5.2001. Then she testifies briefly on what she did when the deadline came. The facts are straightforward as far as estoppel is concerned. The argument is mainly on law, which has not taken up much time and Counsel for Plaintiff has only one case to cite [Chuang Yue Chien Eugene (supra)]. His final submission in writing consists of thirteen pages (including three pages on costs) but the estoppel submission is of slightly less than a page. I assess the effort made by Plaintiff’s lawyers on the estoppel argument to be only one-tenth of all the efforts they have spent in this litigation. I thus order Defendant to bear one-tenth of Plaintiff’s costs. Of course, Defendant should bear his own costs. Costs are to be taxed if not agreed with certificate awarded to counsel.