FU KONG, INC. v. HUA YUN DA GROUP LTD

HCA 511/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 511 OF 2001

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J U D G M E N T

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1. In this action, the Plaintiff seeks to recover a sum of US$300,000 from the Defendant. The Plaintiff is a company incorporated in the United States. Mr George Hsu is the Plaintiff's CEO. According to his evidence and the documentary evidence, which I have no difficultly in accepting, in early 2000, the Plaintiff entered into negotiations with a Shanghai Jingmao International Trade Co. Ltd. ("Jingmao"), a company incorporated in the Mainland, for the sale and purchase of 102,144 pieces of 100% cashmere sweater, at the unit price of US$34.75 per piece. Eventually a contract dated 10 April 2000 was signed. Payment of the purchase price was to be effected by a letter of credit at sight. In fact, a letter of credit, covering the entire purchase price, had been issued by the Plaintiff in favour of Jingmao in December 1999. Delivery of the garment was to be effected by two instalments in May and June 2000 respectively.

2. According to Mr Hsu's evidence, notwithstanding the unit price agreed under the contract, Jingmao had been trying to obtain an increase in the unit price on account of an increase in the market prices of the raw materials and the export quotas. Jingmao asked for an increase of US$2 in the unit price. Mr Hsu said in evidence that he was then caught in a difficult position because on the one hand, as a matter of agreement, the purchase price had been fixed; yet on the other he really had no choice as a matter of commercial reality, but to make some concession in favour of Jingmao.

3. According to his evidence, the question of export quotas was an urgent one because the price of export quotas had been rising, and it was necessary to get hold of the necessary quotas as soon as possible. In any event, the shipment schedule was tight.

4. According to Mr Hsu, another problem faced by Jingmao, so Jingmao's representative - a Mr Feng Zhen - claimed to Mr Hsu, was that Jingmao had encountered unexpected difficulties in seeking to borrow money from banks against the letter of credit, so as to raise the necessary working capital for fulfilling the purchase order (including buying the quotas).

5. Mr Hsu said that in those circumstances, eventually, he agreed with Mr Feng on behalf of Jingmao that the Plaintiff would advance a sum of US$300,000 to Jingmao, for the specific purpose of enabling Jingmao to buy the necessary export quotas with the money. Mr Hsu explained in evidence that this was some sort of an emergency measure so as to enable Jingmao to acquire the quotas immediately, and thus to complete the purchase order, to the mutual benefit of the Plaintiff and Jingmao. Mr Hsu said in evidence that he never definitely agreed with Jingmao to any increase in the purchase price, but he was content to leave it open until after the completion of the purchase order, while in the meantime advancing the sum of US$300,000 to Jingmao for purchasing the quotas. His idea was that whatever increase in price that he might subsequently agree with Jingmao would be wholly covered by the advancement of US$300,000, with the balance to be refunded by Jingmao to his company afterwards. It should be noted here that an increase of the unit price up to the full extent asked for by Jingmao, i.e. US$2 per piece, would only result in an additional purchase price of slightly more than US$200,000, which would be more than sufficiently covered by the advancement of US$300,000. It should also be remembered that the Plaintiff had already issued an irrevocable letter of credit in favour of Jingmao, covering the entire purchase price as per the purchase price set out in the signed contract.

6. Mr Hsu was adamant, despite vigorous cross-examination, that the advancement of US$300,000 was for the sole purpose of enabling Jingmao to purchase the necessary quotas. He denied the suggestion that it was paid as a mere "deposit", "down payment", or "first instalment" of the purchase price. He rightly pointed out that according to the contract signed, there was no provision for the payment of any such deposit, down payment or first instalment, and that full payment was to be effected by a letter of credit at sight, which had long been issued.

7. According to Mr Hsu's evidence, at the suggestion of Mr Feng, he agreed to remit the sum of US$300,000 to the Defendant, a Hong Kong company, which would receive the money for and on behalf of Jingmao, so as to enable Jingmao to exchange the money into RMB through a more favourable channel.

8. It was thus that the sum of US$300,000 was remitted by the Plaintiff to the Defendant's bank account (with HSBC) in Hong Kong on 17 April 2000.

9. However, the sale and purchase transaction fell through shortly after the remittance was made. According to the evidence of Mr Hsu and the documentary evidence, the transaction was cancelled by mutual agreement between the Plaintiff and Jingmao. Upon the cancellation of the transaction, the Plaintiff, understandably, asked for the return of the sum of US$300,000 from Jingmao. Correspondence ensued, and at one stage, Jingmao raised the question of the cost of some raw materials that had been purchased for the aborted transaction in the sum of US$15,000 which it wanted to deduct from the money to be returned, and the Plaintiff was prepared to accept an initial repayment of a sum of US$280,000, with the rest to be negotiated later on. But eventually, there was no repayment of the sum of US$300,000, whether in whole or in part.

10. Furthermore, later on in the same year, there was a change in management in Jingmao, and Mr Feng was no longer the legal representative of the Mainland company, although apparently he still remained an officer of Jingmao. Jingmao then maintained that it had never received the sum of US$300,000 from the Defendant, and therefore refused to make any repayment of the same to the Plaintiff. Written confirmations from Jingmao's new management and a Mainland firm of accountants were produced to back the claim that Jingmao had, according to its books and records, never received the sum of US$300,000 from the Defendant.

11. All this prompted the Plaintiff to turn to the Defendant for repayment of the money. This apparently caused the Defendant to procure Mr Feng to prepare a written confirmation, in the name of Jingmao (although Mr Feng was no longer authorized so to do), to the effect that the Defendant had indeed handed over the sum of money to Jingmao. The Defendant also relied on a Chinese document issued by Jingmao, dated 10 May 2000, which confirmed that Jingmao had received from the Defendant the RMB equivalent of the sum of US$300,000.

12. Mr Chen Hao is a former director of the parent company of the Defendant in Beijing. He was the only witness called by the Defendant to give evidence at trial. According to his evidence, Mr Feng was a personal friend of his. In April 2000, over the phone Mr Feng asked him to do his company (Jingmao) a favour, by receiving on Jingmao's behalf a sum of US$300,000, which was, so he was told by Mr Feng, a deposit or down payment payable under a garment transaction involving Jingmao and the Plaintiff. According to Mr Chen, Mr Feng did not mention that the money was to be paid to Jingmao to enable Jingmao to buy export quotas. Mr Feng only said that he wanted RMB from the Defendant after the remittance. Mr Chen said in evidence that after checking with the finance people in his Beijing company and being told that this could be done, he acceded to Mr Feng's request.

13. Mr Chen went on to say in evidence that on or about 20 April, he learned from the finance people that the sum of US$300,000 had been received. He gave instructions that the money be brought to Beijing where he was working. After he was told that the money had arrived Beijing, he contacted Mr Feng and told him so. They made an appointment to meet at a caféin the lobby of the Beijing Hong Kong Macau Centre in Beijing on 10 May 2000. Prior to the meeting, the finance people had prepared for Mr Chen the RMB equivalent of US$300,000 in cash, and he brought the cash, which was placed inside a suitcase, to the café where he handed the money to Mr Feng. Mr Feng gave him in return the above-mentioned document dated 10 May 2000 as a receipt.

14. Mr Chen said that that was all his and the Defendant's involvement in the money transaction, and they knew nothing about the purpose of the payment apart from the fact that it was meant to be a deposit or down payment. They knew nothing about the cancellation of the transaction or the request for return of the money by the Plaintiff.

15. Mr Chen said that it was only after the first demand letter was received by the Defendant in late December 2000 that he realized that the Plaintiff was claiming for the return of the money from the Defendant. He said that he had made inquiries with the finance people and found out the following (as per paragraphs 6 to 8 of his witness statement which were adopted as part of his evidence in chief at the trial):

"6.	On or about 17th April 2000, the Plaintiff transferred the Sum to the Defendant's bank account no. 004-495-260903-838 maintained with the Hennessy Centre Office of the Hong Kong and Shanghai Banking Corporation Limited.
7.	On or about 20th April 2000, an officer of the Defendant withdrew cash in the sum of US$200,000 from its bank account with Hong Kong and Shanghai Banking Corporation Limited. Then another officer of the Defendant carried the money from Hong Kong to Beijing and brought it to the office of our group of companies in Beijing.
8.	Subsequently, the said sum of US$200,000 was topped up with another sum of US$100,000 in the hands of our group of companies in Beijing to add up to a total of US$300,000. Then arrangements were made for this sum of US$300,000 to be exchanged to RMB￥2,490,000 in Beijing."

16. The sum of RMB￥2,490,000 was the amount of money that Mr Chen actually gave Mr Feng during their meeting on 10 May 2000. Mr Chen said in evidence that he had no personal knowledge of the matters set out in the preceding paragraph and he only learned of them from the finance people, who however did not give evidence at the trial.

17. In evidence, Mr Chen was adamant that he had paid over the RMB equivalent of the sum of US$300,000 to Mr Feng on behalf of Jingmao, and thus denied any obligation on the part of the Defendant to pay over the same sum of money again to the Plaintiff. This remains the Defendant's stance in this action.

18. In approaching the disputes of fact, I bear in mind the entirety of the evidence, including the oral evidence from Mr Hsu and Mr Chen (both as regards their demeanour and the content of the evidence), the documentary evidence, the agreed matters and surrounding circumstances. I bear in mind the inherent probabilities or improbabilities of the competing versions of fact. I also bear in mind the burden and standard of proof.

19. Having done so, I have no difficulty whatsoever in accepting Mr Hsu's evidence in its entirety. Mr Hsu impressed me as a truthful and honest witness. He did his best to answer questions in the box. There were, no doubt, occasional lapses and confusion, but they were nothing but innocent.

20. More specifically I accept his evidence regarding the purpose of the payment of the sum of US$300,000. No one from Jingmao was called to give oral evidence in Court to contradict his account. More importantly, apart from his own oral evidence, there are known facts and circumstances which support his story. As mentioned above, the signed contract did not provide for the payment of any deposit, down payment or first instalment. Rather, full payment was to be effected via the letter of credit, which had been duly issued. The requested increase in price by US$2 per piece of garment could not by itself explain the amount of US$300,000, which was significantly in excess of the total increase in price even assuming that the increase in unit price had been definitely agreed to by the Plaintiff. The reason given by Mr Hsu in the box for the payment was credible and sensible: the market price for the quotas had been rising, and Jingmao somehow had difficulty in obtaining the necessary finance for performing the transaction on the security of the letter of credit. Furthermore, the shipment schedule was tight, and the Plaintiff had its own end-buyer to front.

21. Furthermore, Mr Hsu's evidence was substantially backed by a contemporaneous fax he sent on 17 April 2000 to Jingmao, advising the latter that the sum of US$300,000, "being the quota money for the cashmere transaction" ("cashmere訂單的配額錢美金30萬") had been remitted to the Defendant's account in Hong Kong, as per Jingmao's request.

22. In this regard, I have not forgotten that in later correspondence between the Plaintiff and Jingmao, and in the original statement of claim, the sum of money of US$300,000 was not described as money paid for the purpose of enabling Jingmao to purchase the quotas as such, but was described as a prepayment of money or a sum paid under a mistake.

23. While due weight must be given to the wording used in the subsequent correspondence, I must also bear in mind the possibility that the wording was the result of loose language used by laymen in their correspondence. As regards the reference in the original statement of claim to the sum of money as having been paid under a mistake, I am of the view that that was more a reflection of the then legal analysis of those advising and representing the Plaintiff on the true nature of the Plaintiff's case, than anything else. I note that in Mr Hsu's first affirmation filed in this action for the purpose of an unsuccessful Order 14 application, made in December 2001, he did in no uncertain terms refer to the express and specific purpose for which the money of US$300,000 was paid by his company to Jingmao (via the Defendant).

24. I also bear in mind what Mr Feng had told Mr Chen over the telephone regarding the nature of the payment. While the Plaintiff does not find it necessary to challenge Mr Chen's evidence in this regard, what Mr Feng had told Mr Chen over the phone might well not represent the whole picture. In the context of the telephone conversation as related by Mr Chen to this Court by way of evidence, there was no reason why Mr Feng should have found it necessary to present the whole picture to Mr Chen. Nonetheless, I have borne that piece of evidence in mind.

25. I have not forgotten the subsequent documents generated by Jingmao/Mr Feng regarding the purpose of the payment (as a deposit). Mr Feng has not been called to give evidence at trial. I have grave reservations regarding Mr Feng's conduct in the whole transaction. I find these subsequent documents, generated no doubt by Mr Feng to protect the position of the Defendant after the dispute arose, most suspicious, and of little evidential value. Nonetheless, I have borne them in mind in considering the whole of the evidence before me, before making any finding of fact.

26. As I said, on top of all the documentary evidence and surrounding circumstances, I do have the oral evidence of Mr Hsu, whom I find to have been a truthful and credible witness.

27. On the totality of the evidence before me, I have no difficulty in finding that the sum of US$300,000 was paid by the Plaintiff to the Defendant at the request of Jingmao, for the express and specific purpose of enabling Jingmao to purchase the necessary quotas.

28. I further find that in those circumstances, Jingmao knew full well that the sum of US$300,000 so remitted by the Plaintiff to the Defendant at Jingmao's request could only be used for one specific purpose, namely the purchase of the necessary quotas. In the circumstances of this case, I find the possibility of Jingmao not understanding the true nature of the payment, given my acceptance of the Plaintiff's evidence, to be practicably non-existent.

29. It is not the Plaintiff's case that the Defendant, as opposed to Jingmao, knew at the initial stage (see below) that the sum of US$300,000 could only be used for the purchase of export quotas. The Plaintiff is content to accept that initially, all the Defendant knew was that the money was paid as some form of deposit or down payment.

30. I do not think that the notion of the sum as being some form of down payment or instalment is necessarily inconsistent with the Plaintiff's case that the money was paid over for a specific purpose. For according to Mr Hsu's evidence, if everything had proceeded according to plan, and upon the completion of the sale and purchase transaction, if he should have agreed to any increase in price, the extra price to be paid would have to be deducted from the sum of US$300,000, with the balance being repayable to the Plaintiff. So to that extent, the sum of US$300,000 could be regarded as some form of down payment or instalment payment.

31. The next crucial dispute of fact is whether the Defendant had, as claimed by Mr Chen, handed over the RMB equivalent of the sum of US$300,000 to Mr Feng on behalf of Jingmao on 10 May 2000 in Beijing.

32. In his final submission, Mr Lam, appearing for the Defendant, accepted that the burden is on the Defendant to establish the claimed payment over of the money to Jingmao. But regardless of the burden of proof, my conclusion would be the same: I do not accept Mr Chen's claim.

33. Apart from Mr Chen's demeanour which did not impress me at all, I find the Defendant's case and Mr Chen's oral assertion inherently improbable and lacking in evidential support.

34. I find the suggestion that somehow it was found to be desirable to transfer the money from the Defendant's bank account with HSBC in Hong Kong to Beijing by hand most unusual and indeed startling. A substantial sum of US$200,000 was said to have been withdrawn from the Defendant's bank account, and carried by hand into the Mainland, and all the way to Beijing.

35. I have not forgotten that there is in evidence a bank withdrawal slip of US$200,000 cash from the Defendant's bank account in Hong Kong on 20 April. But that withdrawal slip by itself was quite insufficient to support the movements of money claimed by Mr Chen.

36. The finance people from whom Mr Chen obtained his information, which he related in Court by way of hearsay evidence, were not called to give evidence, despite that they were the staff of the Defendant's parent company in Beijing. Likewise, the officers or employees of the Defendant who had handled the money in Hong Kong or taken the cash across the border to Beijing were neither identified nor called to give evidence. Not even a statement from these people was produced. No explanation for their absence was proffered.

37. Furthermore, neither the ledgers, books and accounts of the Defendant in Hong Kong nor those of the associated company in Beijing which advanced the balance sum of US$100,000 were disclosed or produced as evidence at the trial to back Mr Chen's story, despite a specific order of discovery made in the present action for disclosure of those documents. Again no explanation was given.

38. No reason was given as to why US$200,000 only was withdrawn from the sum of US$300,000 received and taken into the Mainland, thus requiring a sum of US$100,000 to be advanced by an associate company in Beijing to make up the balance. No documents were produced regarding the exchange of the US dollars into RMB.

39. Like the taking of money into the Mainland in cash, the RMB equivalent of the sum of US$300,000 was said to have been handed by Mr Chen to Mr Feng in a café in cash. From any angle, the amount of money involved was substantial. No or no sufficient reason was given as to why the money, whether in US$ or RMB, was not transferred through banks to Jingmao. Nor was there any explanation given as to why the cash could not be given in a safer or more natural place, such as the Defendant's parent company's office in Beijing, instead of a public place like the café.

40. The so-called receipt dated 10 May 2000, said to have been given by Mr Feng to Mr Chen, upon the handing over of the money in the café, reads more like a subsequent confirmation of the receipt of money, than a contemporaneous receipt or acknowledgment of payment (words like "說明" and "我司已收到由貴司轉付的該款項" are more appropriate for a subsequent confirmation than a contemporaneous receipt or acknowledgment).

41. Given the subsequent confusion regarding the documents generated from Jingmao's old management and its new management, I do not find it right to place too much weight on what these subsequent documents say. As regards the earlier correspondence between the Plaintiff and Jingmao relating to the return of money immediately after the cancellation of the garment transaction, particularly during the time when Mr Feng was still in charge of Jingmao, whilst it no doubt evidenced that Jingmao had received the sum of US$300,000 in a general sense, it did not necessarily mean that the money had been physically transferred from the Defendant - Jingmao's receiving agent - to Jingmao. Nonetheless, I bear in mind the correspondence.

42. Turning to the Defendant's pleading in this action, I note that originally the Defendant pleaded that it had "duly remitted the said sum of US$300,000 to Shanghai Jingmao on or about 10 May 2000" (paragraph 4). This was quite inconsistent with the current story of the Defendant in at least three aspects: first, there was no remittance - the money was carried by hand to Beijing; secondly, only a sum of US$200,000 was taken to Beijing (the balance was made up from an advancement by an associated company in Beijing), whereas the remaining US$100,000 apparently remained in Hong Kong; thirdly, the transfer of money from Hong Kong to Beijing took place in a process which started on 20 April 2000 and ended on 10 May 2000 at the café in Beijing, rather than in one go as suggested by the original pleading (i.e. on or about 10 May 2000).

43. Apart from the more obvious points that have been specifically mentioned above, I have borne in mind the whole of the relevant circumstances and evidence before me, and, as I said, regardless of the burden of proof, I reject the Defendant's case and Mr Chen's claim.

44. Mr Lam, counsel for the Defendant, very fairy accepted in final submission that if the Court should reject his client's pleaded case and Mr Chen's version of payment over (and there is no alternative case on pleading or in evidence), in the circumstances of the present civil trial, it is quite open to the Court to conclude that the Defendant has not paid over the sum of US$300,000 to Jingmao.

45. Having considered the whole circumstances and all available evidence, I find as a fact that at no material time (see below) has the Defendant paid over the sum of US$300,000 to Jingmao.

46. Despite some initial confusion, the eventual case put forward by the Plaintiff against the Defendant is that of a so-called Quistclose trust, following the case of Quistclose Investment Ltd v. Rolls Razor Ltd [1970] AC 567. Despite some pleading imperfections in the amended statement of claim, Mr Lam on behalf of the Defendant confirmed in final submission that no pleading point would be taken.

47. The essence of a Quistclose trust has been discussed in some details in the recent House of Lords decision of Twinsectra Limited v. Yardley [2002] 2 AC 164. Lord Millett (dissenting on a point immaterial to the present discussion) explained the relevant principles thus (at pp. 184C to 193F):

"68 Money advanced by way of loan normally becomes the property of the borrower. He is free to apply the money as he chooses, and save to the extent to which he may have taken security for repayment the lender takes the risk of the borrower's insolvency. But it is well established that a loan to a borrower for a specific purpose where the borrower is not free to apply the money for any other purpose gives rise to fiduciary obligations on the part of the borrower which a court of equity will enforce. In the earlier cases the purpose was to enable the borrower to pay his creditors or some of them, but the principle is not limited to such cases.

69 Such arrangements are commonly described as creating "a Quistclose trust", after the well known decision of the House in Quistclose Investments Ltd v. Rolls Razor Ltd [1970] AC 567 in which Lord Wilberforce confirmed the validity of such arrangements and explained their legal consequences. When the money is advanced, the lender acquires a right, enforceable in equity, to see that it is applied for the stated purpose, or more accurately to prevent its application for any other purpose. This prevents the borrower from obtaining any beneficial interest in the money, at least while the designated purpose is still capable of being carried out. Once the purpose has been carried out, the lender has his normal remedy in debt. If for any reason the purpose cannot be carried out, the question arises whether the money falls within the general fund of the borrower's assets, in which case it passes to his trustee in bankruptcy in the event of his insolvency and the lender is merely a loan creditor; or whether it is held on a resulting trust for the lender. This depends on the intention of the parties collected from the terms of the arrangement and the circumstances of the case.

...

71 ... A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them.

...

73 A Quistclose trust does not necessarily arise merely because money is paid for a particular purpose. A lender will often inquire into the purpose for which a loan is sought in order to decide whether he would be justified in making it. He may be said to lend the money for the purpose in question, but this is not enough to create a trust; once lent the money is at the free disposal of the borrower. Similarly payments in advance for goods or services are paid for a particular purpose, but such payments do not ordinarily create a trust. The money is intended to be at the free disposal of the supplier and may be used as part of his cashflow. Commercial life would be impossible if this were not the case.

74 The question in every case is whether the parties intended the money to be at the free disposal of the recipient: In re Goldcorp Exchange Ltd [1995] 1 AC 74, 100 per Lord Mustill. His freedom to dispose of the money is necessarily excluded by an arrangement that the money shall be used exclusively for the stated purpose, for as Lord Wilberforce observed in the Quistclose case [1970] AAC 567, 580:

"A necessary consequence from this, by a process simply of interpretation, must be that if, for any reason, [the purpose could not be carried out, ] the money was to be returned to [the lender]: the word 'only' or 'exclusively' can have no other meaning or effect."

...

76 ... Equity's intervention is more principled than this. It is unconscionable for a man to obtain money on terms as to its application and then disregard the terms on which he received it. Such conduct goes beyond a mere breach of contract. As North J explained in Gibert v. Conard (1884) 54 LJ Ch 439, 440:

"it is very well known law that if one person makes a payment to another for a certain purpose, and that person takes the money knowing that it is for that purpose, he must apply it to the purpose for which it was given. He may decline to take it if he likes; but if he chooses to accept the money tendered for a particular purpose, it is his duty, and there is a legal obligation on him, to apply it for that purpose."

The duty is not contractual but fiduciary. It may exist despite the absence of any contract at all between the parties, as in Rose v. Rose (1986) 7 NSWLR 679; and it binds third parties as in the Quistclose case itself. The duty is fiduciary in character because a person who makes money available on terms that it is to be used for a particular purpose only and not for any other purpose thereby places his trust and confidence in the recipient to ensure that it is properly applied. This is a classic situation in which a fiduciary relationship arises, and since it arises in respect of a specific fund it gives rise to a trust.

...

98 ... The settlor's motives must not be confused with the purpose of the trust; the frustration of the former does not by itself cause the failure of the latter. But if the borrower is treated as holding the money on a resulting trust for the lender but with power (or in some cases a duty) to carry out the lender's revocable mandate, an the lender's object in giving the mandate is frustrated, he is entitled to revoke the mandate and demand the return of money which never ceased to be his beneficially.

...

100 ... As Sherlock Holmes reminded Dr Watson, when you have eliminated the impossible, whatever remains, however improbable, must be the truth. I would reject all the alternative analyses, which I find unconvincing for the reasons I have endeavoured to explain, and hold the Quistclose trust to be an entirely orthodox example of the kind of default trust known as a resulting trust. The lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest in the money, and in so far as he does not it is held on a resulting trust for the lender from the outset. Contrary to the opinion of the Court of Appeal, it is the borrower who has a very limited use of the money, being obliged to apply it for the stated purpose or return it. He has no beneficial interest in the money, which remains throughout in the lender subject only to the borrower's power or duty to apply the money in accordance with the lender's instructions. When the purpose fails, the money is returnable to the lender, not under some new trust in his favour which only comes into being on the failure of the purpose, but because the resulting trust in his favour is no longer subject to any power on the part of the borrower to make use of the money. Whether the borrower is obliged to apply the money for the stated purpose or merely at liberty to do so, and whether the lender can countermand the borrower's mandate while it is still capable of being carried out, must depend on the circumstances of the particular case.

101 ... A trust must have certainty of objects. But the only trust is the resulting trust for the lender. The borrower is authorised (or directed) to apply the money for a stated purpose, but this is a mere power and does not constitute a purpose trust. Provided the power is stated with sufficient clarity for the court to be able to determine whether it is still capable of being carried out or whether the money has been misapplied, it is sufficiently certain to be enforced. If it is uncertain, however, then the borrower has no authority to make any use of the money at all and must return it to the lender under the resulting trust. Uncertainty works in favour of the lender, not the borrower; ...

102 Like all resulting trusts, the trust in favour of the lender arises when the lender parts with the money on terms which do not exhaust the beneficial interest. It is not a contingent reversionary or future interest. It does not suddenly come into being like an 18th century use only when the stated purpose fails. It is a default trust which fills the gap when some part of the beneficial interest is undisposed of and prevents it from being "in suspense"."

48. In Typhoon 8 Research Ltd v. Seapower Resources International Ltd [2002] 2 HKLRD 660, our local Court of Appeal applied the concept of a Quistclose trust to a non-loan situation. As Lord Millet explained in Twinsectra (at para. 99, p. 192G), the Quistclose principle can apply to "a wide range of situations in which the parties enter into a commercial arrangement which permits one party to have a limited use of the other's money for a stated purpose, is not free to apply it for any other purpose, and must return it if for any reason the purpose cannot be carried out." In Typhoon 8 Research Ltd, the Court of Appeal applied the principle to cover a payment of rental deposit.

49. In the present case, on the facts, I have no doubt - and I do expressly so find - that the sum of US$300,000 was paid by the Plaintiff to Jingmao (via the Defendant) for an express and specific purpose, i.e. the purchase of the necessary export quotas. The money was not free to be used by Jingmao for any other purpose. It must be returned if that purpose was not or could not be carried out. That is my finding. I have not forgotten that as Lord Millet has pointed out in Twinsectra (para. 73), in the commercial world very often the person who advanced a sum of money would inquire into the purpose for which the advancement was sought, in order to decide whether he would be justified in making it, which would not normally be sufficient to constitute a Quistclose trust. However, I am satisfied, on the evidence before me, that in this case what happened went quite beyond the Plaintiff merely inquiring into and having an interest in knowing what intended use Jingmao proposed to put the sum of US$300,000 to; the Plaintiff was only prepared to advance the money on one express condition, which was well known to Jingmao, namely that the sum was to be utilized for the purchase of export quotas only.

50. As I said, on the totality of the evidence before me, I do make a finding to that effect.

51. In the circumstances, a Quistclose trust did arise in the present case. The money was held by Jingmao (through its authorised nominee/recipient, the Defendant) on a Quistclose type of resulting trust in favour of the Plaintiff, with a mandate allowing Jingmao to utilize the money for the purchase of the necessary quotas.

52. Under that analysis, upon the cancellation of the transaction, there was no further question of buying any quotas, and by the Plaintiff's express demands for repayment as well as by implication, the mandate must have been withdrawn, and the money was therefore held in a Quistclose type of resulting trust in favour of the Plaintiff.

53. Furthermore, on the evidence, I find no uncertainty in the purpose for which the sum of US$300,000 was advanced. In those circumstances, a Quistclose trust in relation to the money arose from day one, and upon the termination of the sale and purchase transaction, it must be returned to the Plaintiff.

54. In any event, certainty of the purpose of advancement is non-essential. In my view, if it cannot be established to the satisfaction of the court that when the money was advanced, the parties' intention was such that the money could only be used for a specific purpose, then no Quistclose trust would arise at all; the money, once advanced, would simply become the property of the recipient beneficially, and depending on the parties' agreement, the right of the payer of the money to recover it from the recipient would well be a personal or contractual one only.

55. However, if such an intention can be established to the satisfaction of the court, a Quistclose trust would arise, and this would be so even though the specific purpose in question was ambiguous or uncertain.

56. As was pointed out by Lord Millett in Twinsectra (at para. 101), if the purpose was stated with sufficient clarity, the court would enforce it; if it was uncertain, the result would be that the recipient would have no authority whatsoever to make use of the money and must return it to the payer under the resulting trust. As Lord Millett put it, "uncertainty works in favour of the lender, not the borrower" (at p. 193E).

57. In the present action, of course, the Plaintiff is not suing Jingmao under the Quistclose trust. Rather, it seeks repayment from the Defendant - Jingmao's receiving agent of the money. But this does not make any difference: in Typhoon 8 Research Ltd, the Court of Appeal held that the receiving agent with whom the rental deposit still remained, was liable to repay the money to the plaintiff, upon the termination of the tenancy agreement in question, because the agent was affected by the Quistclose trust, given its knowledge of the rental deposit arrangement: see p. 670 F/G to H (para. 21).

58. In the present case, I have already rejected the Defendant's case and Mr Chen's evidence that it has handed over the money in question to Jingmao or Mr Feng on 10 May 2000 as claimed. On the material and evidence before me, by 4 December 2001 at the latest, when Mr Hsu made his first affirmation in the present proceedings in support of the unsuccessful Order 14 application in which he set out the express purpose of the payment of the sum of US$300,000, the Defendant must have acquired the requisite knowledge of the primary facts giving rise to the Quistclose trust. Saddled with that knowledge and given the failure on the part of the Defendant to establish payment over of the money to Jingmao prior to the acquisition of that knowledge, the Defendant must, as from the acquisition of knowledge, also be affected by a Quistclose trust in favour of the Plaintiff.

59. As from the date of acquisition of knowledge, the Defendant's position is no different from the position of the agent of the landlord in Typhoon 8 Research Ltd.

60. I have not overlooked the fact that the acquisition of knowledge via Mr Hsu's affirmation filed and served in the present action came after the commencement of action. In other words, the Plaintiff's cause of action based on a Quistclose trust and knowledge, against the Defendant as the receiving agent of the money in question, was only complete after the commencement of action.

61. Mr Lam, counsel for the Defendant, did not suggest that this would give rise to an insurmountable jurisdictional obstacle (see generally Hong Kong Civil Procedure 2004 Vol. 1 paras. 20/8/2 and 20/4/2, and the cases cited therein). Indeed, he went further and confirmed during final submission that the Defendant would not be taking any such technical objection at all.

62. In those circumstances, I see no reason why judgment should not be given in favour of the Plaintiff against the Defendant based on the Quistclose trust principle, given my above findings of fact.

63. Given that result, I need not deal with the other possible arguments or causes of action available to the Plaintiff, none of which was seriously pursued during final submission.

64. In conclusion, I order that judgment be entered in favour of the Plaintiff against the Defendant for the return of the sum of US$300,000, together with interest (the Plaintiff only asks for simple interest) at the judgment rate from the date of service of Mr Hsu's affirmation made on 4 December 2001 on the Defendant to the date of judgment, and thereafter also at the judgment rate until full payment.

65. I also award the costs of the present action to the Plaintiff, to be taxed if not agreed.