TEAMAN DESIGN LTD v. LAKCO PACKAGING LTD

HCMP 3324/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3324 OF 2014

(ON AN INTENDED APPEAL FROM DCCJ 1906/2012)

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JUDGMENT
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Hon Cheung CJHC (giving the judgment of the court):

1.  This is the defendant’s application for leave to appeal from the judgment of District Judge Simon Leung dated 13 October 2014. The facts have been set out in the judgment below and it is not necessary to repeat them here.

2.  The first intended ground of appeal centres on the differences between the set of invoices issued in March 2012 and that in May 2012 for the works done by the plaintiff.  The defendant argues that the plaintiff is not entitled to rely on the May invoices.

3.  This is not an arguable ground with reasonable chances of success on appeal.  Absent any pleading and reliance on estoppel, the real question is what contractual works the plaintiff has actually done for the defendant for which it seeks payment.  The various invoices issued at different times are merely evidence of what works have been done and (where relevant) what prices have been agreed.  The judge has, from his judgment, clearly considered the entire evidence and has come to his findings on these factual issues which cannot be disturbed on appeal unless they are “plainly wrong”: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, and they are not.

4.  The second intended ground of appeal relates to the supply and installation of the main cable for the 100AMP MCB board.  It is said that the judge has failed to give any or any sufficient weight to the letter from the defendant dated 17 January 2012, to the lack of response to that letter, and to the plaintiff’s apparent acting in accordance with that letter in the March invoices.

5.  With respect, there is no substance in this criticism.  The judge has clearly borne all this in mind, as can be seen from his judgment, and has come to his findings.  They cannot be assailed on appeal.

6.  The third intended ground of appeal relates to the 29 light points for the down lights of the showcase.  It is suggested that the judge has ignored or given insufficient weight to some contractual documents, and indeed there was no or insufficient evidence that the 29 light points (as opposed to only 2) were installed.  Again, we reject this point.  The judge has obviously taken into account the documents mentioned by the defendant and considered the evidence as a whole (including the evidence from the plaintiff that 29 light points have been installed), before reaching his findings of fact.  Moreover, the judge was quite right in rejecting the alleged oral agreement that the cost for the 29 light points was included in the cost of the showcase, a case not pleaded in the defence and explored at trial.  There is no substance to this intended ground of appeal.

7.  The fourth intended ground of appeal relates to the 3% discount.  The defendant relies on the renovation work contract to say that it applies to all subsequent works.

8.  We do not find this arguable.  The judge was right to focus on the sales confirmations, as explained in his judgment. There was therefore no basis for the defendant’s entitlement to a 3% discount save for the four sales confirmations which contained a provision for the 3% discount.  In any event, the amount involved is only $1,784, and as a matter of discretion, we will not grant leave to appeal in relation to such a small difference in amount.

9.  For these reasons, we take the view that the intended appeal is not an arguable one with reasonable chances of success. The application for leave to appeal is dismissed with costs to the plaintiff, which are summarily assessed at $75,000.