WELL DYNASTY DEVELOPMENT LTD v. CLAREVILLE ENTERPRISES LTD AND ANOTHER

HCMP 478/2019
HCA 1842/2019
(tried together)

[2026] HKCFI 72

HCMP 478/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 478 OF 2019

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AND

HCA 1842/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

     ACTION NO 1842 OF 2019

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J U D G M E N T

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Background

1.  This is the trial of the two actions in HCMP 478/2019 (“HCMP 478”) and HCA 1842/2019 (“HCA 1842”). Because of the intertwining parties, background, and issues in dispute, the two actions are tried together.

2.  The Plaintiff in HCA 1842 (“FC”) was incorporated on 17 March 1972. At all material times, Ko Wing Wai Wilfred (“Wilfred”) is a director and majority shareholder of FC, holding 10,550 shares.

3.  On 30 September 1977, the 1^st Defendant in HCMP 478 (“Clareville”) was incorporated. At all material times, Wilfred is a director and majority shareholder of Clareville, holding 499 shares.

4.  To the extent that Wilfred was at the material time the majority shareholder and director of FC and Clareville, they are for convenience referred to collectively in this judgment as “Wilfred’s Companies”.

5.  The following companies were incorporated on the following dates:

1st Defendant in HCA 1842and Plaintiff in HCMP 478 (“Well Dynasty”)	9 July 2008
2nd Defendant in HCA 1842 (“Asia Goal”)	26 November 2008
3rd Defendant in HCA 1842(“Top Rainbow”)	2 January 2009
4th Defendant in HCA 1842(“East Dynasty”)	7 July 2009

6.  On Wilfred’s case, Dicky Lo Tsz Tak (“Dicky”) was at all material times the “ultimate owner and controller and/or agent” of Well Dynasty, Asia Goal, Top Rainbow and East Dynasty. They will for convenience only be referred to in this judgment as “Dicky’s Companies” collectively. The claim that these companies were controlled/owned by Dicky or that Dicky was the authorized agent of the companies is in fact denied by Dicky’s wife, daughter and their camp.

7.  A number of transactions concerning the disputed properties below (“Properties”) took place in 2009.

(1)     In March 2009, FC sold:

(a)      to Well Dynasty Flats/Units A, B, C, D on 3/F and Car Parking Space No 6 on G/F, Unify Commercial-Industrial Building, No 31 Tai Yip Street, Kowloon (the “Tai Yip Street Properties”) with an assignment following;

(b)     to Asia Goal Flat D on 15/F, Golden Valley Mansion, 137A Caine Road, Hong Kong (the “Caine Road Property”) with an assignment following; and

(c)      to Top Rainbow Flat B2 on 1/F and Car Parking Space No 8 on G/F 6, Grandview Tower, No 128-130 Kennedy Road, Hong Kong (the “Kennedy Road Property”) with an assignment following.

(2)     In July 2009, FC sold to East Dynasty G/F & M/F, No 3 Yuen Yuen Street, Hong Kong (the “Yuen Yuen Street Property”) with an assignment following.

8.  At the time of the transactions of the Properties, the sole director and shareholder of Dicky’s Companies was in fact one Mak Chee Bun (“Alex Mak”).

9.  Since around March 2009, Clareville and other unknown occupiers have been occupying Units C and D and the Car Parking Space of the Tai Yip Street Properties without payment of rent to Well Dynasty.

10.  Ms Suzette Lo Pau Sei (“Suzette”) (Dicky’s daughter) was appointed a director of Dicky’s Companies on 20 December 2010. She then became the sole shareholder of Well Dynasty, Asia Goal, and East Dynasty on 24 January 2011 and of Top Rainbow on 2 February 2011.

11.  There is no dispute that Dicky was never a director or shareholder of any of the companies which I have referred to as Dicky’s Companies. He passed away on 31 March 2016.

12.  On 27 August 2018, Well Dynasty through its solicitors demanded Clareville to deliver vacant possession of the Tai Yip Street Properties. Clareville did not accede to the demand.

13.  On 2 April 2019, Well Dynasty commenced HCMP 478 against (amongst others) Clareville and the 3^rd Defendant (“Unknown Occupiers”) in respect of their occupation of the Tai Yip Street Properties. The action against the company named as 2^nd Defendant in HCMP 478 was later discontinued. In HCMP 478, Well Dynasty claims, inter alia,the following relief: (i) an order that Clareville and/or the Unknown Occupiers forthwith deliver vacant possession of the Tai Yip Street Properties to Well Dynasty; (ii) mesne profits to be assessed; (iii) damages to be assessed; and (iv) interest.

14.  On 4 October 2019, after the commencement of HCMP 478, FC commenced HCA 1842 against Dicky’s Companies. FC’s case in HCA 1842 is materially identical to Clareville’s defence in HCMP 478, outlined below.

15.  According to Wilfred, he had been a close friend of Dicky from the late 1970s until Dicky’s death. The crux of the case of Wilfred’s Companies is that, in or around January 2009, Dicky representing Well Dynasty and Wilfred representing FC reached an oral agreement that in exchange for FC selling the Properties to Dicky’s Companies to enable Dicky’s Companies to obtain banking facilities, Dicky agreed for and on behalf of Dicky’s Companies that:-

(1)     FC could at any time buy back the Properties from Dicky’s Companies upon payment of the selling price and interest; and

(2)     Before the said re-purchase, FC/Wilfred could use the Tai Yip Street Properties as they deem appropriate, free of rent (“Collateral Agreement”).

16.  In HCA 1842, FC claims, inter alia, the following relief: (i) a declaration that the Collateral Agreement exists and is valid and enforceable; (ii) a declaration that the right to repurchase the Properties is in equity vested in FC by way of proprietary estoppel and/or estoppel by representation; and (iii) specific performance of the Collateral Agreement.

17.  By Order of Master Rita So dated 11 February 2022, the trial of HCMP 478 was ordered to be heard together with HCA 1842, and the pleadings and evidence of the two actions are to be mutually admissible.

Disputed issues

18.  The parties have submitted two agreed list of issues in respect of each action. Given that they overlap substantively, I have distilled the key issues in dispute as follows:

(1)     Collateral Agreement Issue: Does the Collateral Agreement between Wilfred and Dicky, each acting for his companies, exist? This in turn requires determination of (i) whether Dicky had authority to act for Dicky’s Companies at the time of the alleged Collateral Agreement; and (ii) whether the Properties were sold to Dicky’s Companies in 2009 at an undervalue，as Wilfred claims.

(2)     Enforceability Issue: If the Collateral Agreement exists, is it enforceable?

(3)     Estoppel Issue: If the Collateral Agreement exists but is unenforceable, is FC entitled to rely on proprietary estoppel and/or estoppel by representation?

(4)     Licence Issue: If the Collateral Agreement does not exist, does Clareville separately enjoy a licence to occupy the Tai Yip Street Properties?

(5)     Relief and Quantum issue: Is Well Dynasty entitled to the relief sought and, if yes, what is the quantum of the mesne profit and/or damages? In this regard, the parties have been able to agree on the quantum of mesne profits/damages involved.

The Collateral Agreement Issue

19.  The Collateral Agreement is one claimed to have been orally made, and determination of the Collateral Agreement Issue turns on the credibility of Wilfred’s evidence.

20.  First, it is essential to examine Wilfred’s pleaded case.

21.  In the Defence filed on behalf of Clareville in HCMP 478, and in the Statement of Claim filed on behalf of FC in HCA 1842, what is pleaded as the Collateral Agreement is that, prior and collateral to the agreements for sale and purchase of the Properties (“SP Agreements”) made between FC (one of Wilfred’s Companies) and Dicky’s Companies, it had been agreed between Dicky and Wilfred that:

(1)     FC could at any time after the relevant assignments buy back the Properties from Dicky’s Companies upon payment of the corresponding purchase price under the SP Agreements plus the applicable interest (“the Buyback Arrangement”); and

(2)     before the repurchase of the Properties, FC and/or Wilfred could use the Properties in whatever way they deem appropriate, free of rent (“the Rent Free Arrangement”).

22.  On the pleaded case, the Collateral Agreement was made “to enable Dicky’s companies to obtain banking facilities by using the Properties as security” (paragraph 4 (a) of the Defence and Counterclaim of Clareville in HCMP 478). A similar claim was made in paragraph 4 of the Statement of Claim filed by FC in HCA 1842, namely, that on the strength of his friendship with Wilfred, and knowing that FC was the owner of the Properties, Dicky had proposed to Wilfred that Dicky could obtain banking facilities from United Commercial Bank (“UCB”) “to alleviate the immediate financial difficulties of (Dicky’s Companies) and those of the related companies of (Wilfred)”. It was further pleaded that Dicky’s proposal was that if Wilfred could cause FC to sell the Properties “at undervalue prices” to Dicky’s Companies, which companies were controlled and ultimately owned by Dicky, then Dicky/Wilfred could use the Properties as security to obtain banking facilities with more favorable terms from UCB.

23.  In his witness statement, Wilfred described his 38 years’ friendship with Dicky, and how Wilfred had allegedly assisted Dicky to set up his business of importing goods from China to the United States of America, by introducing Dicky to customers and sources. Dicky’s business eventually became extremely successful, procuring supplies of textile and bedding accessories to some of the largest department stores in the USA. Again according to Wilfred, Dicky regarded him as a “benefactor” who had made him into a successful businessman. According to Wilfred, even after Dicky’s business in China and USA had become very prosperous, and Dicky had purchased a property in Hong Kong, Wilfred had continued to help Dicky and his family to pay for many expenses as Dicky did not have a bank account in Hong Kong.

24.  By the time of the commencement of these legal proceedings, Dicky had passed away and was no longer available to give any evidence to either refute or confirm Wilfred’s claims, so there is only Wilfred’s one-sided account.

25.  The gist of Wilfred’s evidence in his witness statement is that he and Dicky had a long relationship of trust, and he had not seen the need to record their dealings in writing. Their relationship was so close that Dicky had named Wilfred and one Leung Chi Wai (“Brian”), who was Wilfred’s manager of Clareville, as the authorized signatories to utilize and draw on the credit lines of Dicky’s company, DSC China Limited (“DSC”), which was the purchasing arm in Hong Kong of Dicky’s import and export business. According to Wilfred, DSC was co-owned and managed by Dicky’s 3 children, but in reality, DSC was beneficially owned and controlled by Dicky himself. It is Wilfred’s evidence that Dicky had been able to procure a US$5 million credit line from UCB in March 2006 without any security, due to Dicky’s good relationship with a senior officer of UCB in Hong Kong. It is also Wilfred’s evidence that between 2006 and 2009, Wilfred and Brian were able to obtain funds by drawing on and utilizing DSC’s credit lines with UCB - not only for the operations of DSC, but also for expenses incurred by Clareville (Wilfred’s company), and for Wilfred’s own business needs, “whenever necessary”. According to Wilfred, there would be settlement of accounts between Clareville and DSC from time to time, but Wilfred claims that because of their trusted relationship, he and Dicky had never discussed the repayment of any outstanding sums due under these ledgers, or the payment of any interest due.

26.  According to Wilfred, Dicky and he had made investment in a private placement of the IPO shares of a company called CY Foundation Group Limited (the “CY Investment”), totaling HK$38.2 million. Due to the global financial turmoil in 2008/2009, the value of the shares dropped drastically, and (according to Wilfred) Dicky and he suffered severe losses. On Wilfred’s case, it was also around the time of the financial turmoil that UCB pressed DSC to provide security for the facilities which had been extended by UCB to DSC and, according to Wilfred, it was because of such pressure from UCB that Dicky proposed the Collateral Agreement to Wilfred, to obtain the Properties from Wilfred’s Companies and to offer the same as security to UCB, to avoid having to repay the indebtedness due from DSC to UCB.

27.  Wilfred did accept in his evidence that (apart from the CY Investment losses) he was also in financial difficulties, caused by his investment in a hotel and residential development project in Yangzhou on the Mainland, which was made through Rui Hua Development Limited (“RH”) (the “RH Investment”). According to Wilfred, he had explored with Dicky the possibility of using the Properties for restructuring the debts due from RH to UCB, as a “global solution to save” DSC, RH, Wilfred and Dicky.

28.  According to Wilfred’s witness statement, the making of the Collateral Agreement was as follows.

29.  Wilfred and Dicky met for breakfast at the Four Seasons Hotel in Shanghai, some time around the end of 2008 to the beginning of 2009 (“Shanghai Meeting”). Dicky allegedly told Wilfred at the Shanghai Meeting that he (Dicky) was being pressed by UCB to provide security for the DSC overdraft line (para 56 of his statement), and UCB required “some bricks” (which they understood to mean real estate properties) to be injected into Dicky’s companies, before the credit facilities for DSC and RH could be continued. (It was not explained by Wilfred why RH should be included in Dicky’s discussions with UCB as to the security required.)

30.  Wilfred further explained that because Dicky knew that FC was holding the Properties, Dicky suggested that Wilfred should transfer FC’s Properties by way of sale to Dicky, so that Dicky could use the Properties in his dealings with UCB. Wilfred further explained that because Dicky did not wish to have assets registered in his name for US tax reasons, he wanted these Properties to be held by companies in the names of other persons, but under Dicky’s control. Dicky allegedly assured Wilfred that as he knew that the Properties were Wilfred’s “ancestral properties” under the name of FC, the transfer of the Properties would only be a “transitional” arrangement, which could be “terminated any time afterwards”, by FC buying back the Properties at the original sale price, with interest accrued.

31.  Wilfred accepted that the above agreement was not detailed, because both he and Dicky had always dealt with their financial affairs very loosely. They did not specify the rate at which interest was to be paid, but understood that it would be “the then existing chargeable OD interest rate of the OD line obtained by DSC” for the period involved. There was no explanation as to how Wilfred himself could state what Dicky had understood. He only stated that all along, that was how they had calculated the interest for the monies they owed to each other (despite his other assertion, that there had never been any actual settlement of debts between Wilfred’s company Clareville and Dicky’s company DSC).

32.  Wilfred also claimed that because Dicky knew that Wilfred had all along been using the Tai Yip Street Properties as the office premises of FC and Clareville, Dicky promised that notwithstanding the sale, and before FC bought back the Properties, Wilfred could use the Tai Yip Properties in whatever way he wished.

33.  According to Wilfred, there had been no discussion or agreement on the purchase price of the Properties, and no consideration given to the market value at the time, but Dicky had told Wilfred that he would try to figure out “a method of transacting the transfers at under-value”, so as to obtain a larger loan with UCB, on more favorable terms. Wilfred therefore claims that in his belief, the Properties had been sold to Dicky at undervalue.

34.  Wilfred claims that after the Shanghai Meeting, he, Dicky, Brian and Wilfred’s partner in RH (“Chow”) had held meetings with UCB in Hong Kong, to discuss and finalize the details of the credit facilities and the securities to be restructured. At a meeting with UCB at UCB’s office in the Landmark in Central (“UCB Meeting”), Wilfred’s evidence is that Dicky had emphasized to all present at the meeting that Wilfred, on behalf of FC, could purchase back the Properties whenever he wanted, that Dicky would not take away Wilfred’s ancestral properties, or pocket Wilfred’s money, and that Wilfred had the right to stay and occupy the Tai Yip Street Properties, rent free, in whatever way Wilfred wanted. According to Wilfred, Dicky had repeated such statements on a number of occasions and at different times, in the presence of other persons. It was on the premise of such promises made by Dicky that Wilfred agreed to sell his ancestral properties, so as to enable Dicky to use the Properties as security for DSC’s credit facilities. Further, Wilfred claims that but for Dicky’s said promises, he would not have terminated FC’s original credit facilities which had been maintained with DBS Bank on very favorable terms, which he did in order to effect the Collateral Agreement reached with Dicky.

35.  It is Wilfred’s repeated assertion that without the Properties used as security for USB’s credit facilities to DSC, Dicky would have been required to pay up the indebtedness DSC owed to UCB, and that Dicky would not have been able to do so.

36.  The pleaded case and the evidence of Wilfred and Wilfred’s Companies is that the SP Agreements were entered into in March 2009 and July 2009, after and pursuant to the Collateral Agreement, at prices “substantially lower than the market values in March 2009”. Since March 2009, Clareville had been permitted to and did use and occupy the Tai Yip Street Properties. FC/Clareville further arranged for 2 units of the Tai Yip Street Properties to be rented out, and the rent was intended for payment to Well Dynasty of Dicky’s Companies, to set off the interest to be paid by FC when it should purchase back the Properties. In the interim, FC/Wilfred had incurred and paid for expenses relating to the Tai Yip Street Properties for renovation, window inspection, fire safety and repair works, and management fees. On behalf of the Wilfred Companies, it was contended that there was part performance of the Collateral Agreement, and further, that it would be inequitable to permit Dicky’s Companies to go back on the Collateral Agreement and the undertakings given by Dicky thereunder.

Was there a Collateral Agreement?

37.  As can be seen from the above, the main plank of Wilfred’s case for the basis of the Collateral Agreement is that it was made because of Dicky’s financial difficulties, the pressure exerted by UCB on Dicky and his companies for security in the form of “bricks”, and that the SP Agreements were essentially for Dicky’s benefit. It was almost in passing that Wilfred referred to the financial difficulties he and his companies faced in relation to the RH Investment.

38.  Leaving aside for the moment whether the Collateral Agreement and the terms thereof as claimed by Wilfred make sense to be credible, the reason put forward by Wilfred as the genesis for the Collateral Agreement is not supported by any evidence apart from Wilfred’s own bare assertion, and is in fact totally contradicted by the contemporaneous documentary evidence.

39.  Dicky’s wife, Annie Lo (“Annie”), denies in her evidence that Dicky or DSC were at any time in financial difficulties as Wilfred claimed. Annie’s evidence was in stark contrast to Wilfred’s, as she claimed that it was Wilfred who was in financial turmoil at the relevant time, that Wilfred and his companies were indebted to UCB and to DSC, and that the SP Agreements were made in order to assist Wilfred to raise cash in order to pay off the amounts due from Wilfred and his companies to the banks.

40.  The textile trading business, PHI, which expanded globally and became very successful was initially started by Dicky and Annie in 1977. DSC was later established in Hong Kong to serve as PHI’s purchasing arm in Hong Kong, and later, two indirectly owned subsidiaries were established in Shanghai (“Shanghai Subsidiaries”), to serve as the sourcing, manufacturing and shipping branch of the business. Annie had always taken part in the management of the textile business, and her evidence is that Dicky would discuss matters relating to the business with her. According to Annie, all important decisions affecting the family and the business were made by Dicky and her jointly, and she claimed that these decisions included and extended to the SP Agreements, of which Dicky had informed her and had discussed with her.

41.  Annie did not dispute that she and Dicky had known Wilfred since the 1980s, and that there had been business dealings between Wilfred and Dicky. By 1990, Wilfred had become the agent of Dicky’s import export business.

42.  Annie gave her account and recollection of the events in early 2009. According to Annie, she and Dicky visited Hong Kong in early 2009, and she recalled that Wilfred’s wife, Barbara, paid them a visit one morning. During that visit, Barbara was in tears and had beseeched Annie to assist Wilfred to overcome the crisis he was facing. Barbara had said to Annie at the meeting that Wilfred’s credit line with the bank had to be repaid, that he had difficulties in doing that and hoped that Dicky and Annie could help him repay the loan to the bank. Annie explained that according to her understanding, and from what Dicky had informed her, Wilfred or his company was indebted to UCB, and Wilfred was in need of a substantial amount of money in order to pay off the indebtedness due to UCB, as well as to repay to DSC amounts which Wilfred had appropriated from DSC. The assistance Barbara and Wilfred required of Dicky and Annie was in the form of their agreeing to purchase the Properties from Wilfred, so that Wilfred could use the proceeds of sale to discharge the debts due to UCB.

43.  Annie explained that she was initially opposed to purchasing the Properties, since Annie and Dicky had no requirement for any property in Hong Kong, and also had no desire to make any investment in real estate in Hong Kong. She was further opposed to the proposal, as Wilfred had been misappropriating DSC’s funds for his own use and she saw no justification to help Wilfred. However, Dicky was more sympathetic because of his friendship with Wilfred, and he was prepared to help because he thought that the Properties could be used for their daughter Suzette who would be residing in Hong Kong.

44.  Although Annie finally agreed to the request for help from Wilfred and Barbara, she was emphatic that the purchase of the Properties had nothing to do with any financial difficulties or needs on Dicky’s part, that there was no undervalue of the Properties, and further, that she had never heard Dicky mention to her that under his alleged agreement with Wilfred, the latter could buy back the Properties, and could continue to use the Properties.

45.  In fact, there is no dispute that the Properties were acquired and registered in the names of Dicky’s Companies, East Dynasty being a company which was incorporated only in July 2009. At the time of the relevant SP Agreements, the registered shareholder and director of Dicky’s Companies was Alex Mak, and on 20 December 2010, Suzette was appointed a director of each of Dicky’s Companies. She became the sole registered shareholder of Well Dynasty, Asia Goal and East Dynasty on 24 January 2011, and of Top Rainbow on 2 February 2011.

46.  Suzette and Dicky’s Companies (so defined in this Judgment purely for convenience of reference) deny that they were controlled by Dicky. Suzette’s evidence is that according to what her father and mother had told her, the Properties were bought to help Wilfred who was in financial difficulties at the time. After her father died, it was out of respect and consideration of the fact that Wilfred had been a friend of her father, that Well Dynasty had permitted Wilfred and his companies to continue to use the units of the Tai Yip Properties, at a time when there was no firm decision made by any of Dicky’s Companies as to the disposal of the Properties. Suzette claims that she had never been informed of the Collateral Agreement alleged by Wilfred, and the effect of her evidence is that as she was the only member of the family who resides in Hong Kong, she would expect to be informed by Dicky as to how the Properties would be dealt with, if there had indeed been any Collateral Agreement made, as Wilfred alleged. According to Suzette, the Collateral Agreement and the claim that the companies holding the Properties under the Collateral Agreement were Dicky’s corporate vehicles controlled by him, are all untrue.

47.  The case of Dicky’s Companies is that even if there had been a Collateral Agreement, such agreement is not binding on the companies as Dicky could not act for them. However, the binding effect of the Collateral Agreement does not have to be dealt with, if there was no Collateral Agreement at all.

48.  Apart from Wilfred’s assertion that Dicky was in dire straits, there is no other evidence which comes near to establishing that. As Counsel for Dicky’s Companies highlighted throughout, the contemporaneous documents speak for themselves as to the financial position of Dicky and DSC, the company which Wilfred claims is in financial difficulties. According to DSC’s Income Statement for the year ended 31 December 2010, produced by Chan Chun Yin (“Peter”) who was the company secretary of Dicky’s Companies, DSC alone had net profits of over HK$11 million in 2009, net profits of over HK$5 million in 2010, and also substantial net assets.

49.  There is further evidence that the Shanghai Subsidiaries had combined net profits of over RMB 5 million in 2009, and RMB 3.5 million in 2010, with other substantial net assets.

50.  Peter in fact adduced evidence to show that it was Clareville which was indebted to DSC in the sum of US$17,239,154.97, representing amounts of DSC which had been utilized by Wilfred and Brian without authority, when they drew cheques from DSC’s bank accounts in favor of Clareville. Up to 13 July 2010, Clareville was still indebted to DSC in the sum of US$2,786,025.48.

51.  The answer to this from Counsel for Wilfred was that the appropriation/misappropriation of DSC’s funds had been known to Dicky and Annie since 2007, and yet they had decided not to take any action against Wilfred.

52.  But for the evidence from UCB, the Court would have had only the one-sided account of Wilfred as to the alleged indebtedness of Dicky/DSC due to the bank, and as to the need for the Properties as securities. As things transpired, Dicky’s camp was able to procure the evidence of UCB, the banker serving Dicky and Wilfred at the material time.

53.  The indisputable evidence from UCB is that at the material time, DSC had a credit line of US$32 million, and substantial credit facilities had been granted by the bank to DSC over the years, solely on the personal guarantees of Dicky and Annie, without more. Francis Leung of UCB (“Francis”) confirmed in his evidence that the facility arrangements demonstrated that UCB (and its successor East West Bank) were satisfied that Dicky had enormous financial standing, which was judged from his credit-worthiness in his dealings with UCB, his assets and his tax records. According to Francis, DSC supported by Dicky and Annie as guarantors had substantial assets, were very reliable and credible, and were big clients of the bank. Francis emphasized that DSC repaid all its loans on time, using its own money. Even Counsel for Wilfred had to accept, in closing, that it was clear from Francis’ evidence that Dicky had an “impeccable credit record” and a “solid relationship” with the bank.

54.  According to Francis, the UCB Meeting was a meeting to discuss how Wilfred would repay his indebtedness to USB. On his recollection, no statement or representation had been made by Dicky at the meeting, that Wilfred could continue to occupy the Tai Yip Street Property rent free, or that Dicky had no intention to take away Wilfred’s ancestral properties or to pocket Wilfred’s money, or that Wilfred could buy back the Properties at their original price (as claimed by Wilfred). His only recollection of the UCB Meeting was that the Properties would be used to resolve the indebtedness to UCB.

55.  It was suggested by or for Wilfred that Annie and Suzette might not have known about Dicky’s financial losses suffered as a result of the RH Investment, because Wilfred might not have told them about his difficulties as he would not have wanted to cause worry to his family. Wilfred pointed to the fact that Annie had some health issues at the relevant time, and claims that Dicky had told him not to tell Annie of his financial problems.

56.  However, even if was true that Dicky had made the losses claimed as a result of the CY Investment, the effect of such losses on Dicky’s overall finances would not have been known to Wilfred either. It was mere speculation if not exaggeration on Wilfred’s part, to claim that (in his belief) Dicky was in serious financial difficulties at the material time and could not discharge any of DSC’s indebtedness to UCB as a result of the CY Investment. In any event, it is also clear from the evidence that whatever might have been Dicky’s alleged losses in the CY Investment, it did not have any effect on UCB/East West Bank’s assessment of the credit worthiness of either Dicky, or DSC. Taking into consideration, as Counsel for Dicky’s Companies urged the Court to do, the fact that UCB/its successor must have continued to conduct due diligence against its clients, even after the alleged failure and losses due to the CY Investment, UCB saw fit to continue the credit line to DSC on the same terms as before, which demonstrated the financial strength of Dicky as a client of the bank. The SP Agreements were made in March 2009. As evidenced by UCB’s facility letter to DSC dated 23 April 2009, the total facilities extended to DSC were US$32 million, which were only secured by the personal guarantees of Dicky and Annie, without any form of additional security by way of “bricks” as Wilfred suggested, or real estate comprising the Properties, or any other landed property. The facilities extended by UCB’s successor, as evidenced by the facility letter of 7 March 2011, remained the same, with no additional security.

57.  In fact, according to Francis’ evidence, he had been the manager of UCB serving both Dicky and Wilfred. Francis stated that he was aware that Dicky and Wilfred were friends, and that Dicky was aware that FC was in debt. Francis’ evidence was that Dicky was assisting Wilfred to find a solution, and that after taking into consideration the fact that Wilfred might not be able to easily dispose of the Properties on the market in view of his financial situation then, Dicky had agreed to purchase the Properties from Wilfred, so that Wilfred could raise some cash to repay a part of Wilfred’s indebtedness to UCB.

58.  According to Francis, the Properties were already subject to prior mortgages, and the proceeds of the sale of the Properties under the SP Agreements could only be used to discharge a part only of FC’s indebtedness to UCB.

59.  In corroboration with the fact that it was Wilfred and Wilfred’s Companies which were in financial difficulties at the material time, rather than Dicky, it is Francis’ evidence that Wilfred had obtained loans from UCB which were extended to RH, and the loans could not be repaid. Because the Properties registered in the name of FC were already subject to existing mortgages in favour of other financial institutions, UCB had to take steps in 2008 to protect its interests as a creditor. In order to obtain a stay of further proceedings or action taken by UCB against RH and Wilfred, and to seek the continuation of the banking facilities to Wilfred/RH, FC had in fact on 11 August 2008 executed an Undertaking to UCB, which was registered at the Land Office. By the Undertaking, FC had agreed that it would not sell, deal with, dispose of or remortgage the Properties without the consent of UCB (“Undertaking”).

60.  Francis refuted Wilfred’s claim, that in the course of the discussions with UCB, Dicky had stated in the presence of UCB that Wilfred could repurchase the Properties from Dicky at the same price, and could freely use the Properties in the interim. Francis’ evidence is that if Dicky had made such a statement, UCB could not and he would not have agreed to such an arrangement, because it would affect UCB’s rights and interests reflected in the Undertaking. He also explained that if the terms of the Collateral Agreement had been raised at the Landmark Meeting, as Wilfred maintained, UCB would not even have agreed to the mortgage for the Properties, without clear terms specified as to how the proceeds of the alleged repurchase by Wilfred would be used, to safeguard the interests of UCB.

61.  It was pure speculation for Wilfred’s counsel to submit that UCB was under pressure and in financial difficulties at the time, and that for that reason, UCB was eager to accept the security and the mortgages of the Properties notwithstanding any risk which may be caused by the existence of the Collateral Agreement. There is simply no evidence to support any related facts, for Wilfred to make such suggestion.

62.  I have not given weight to the evidence of Poon Ka Yeung (Wilfred’s personal assistant), since his evidence on the Collateral Agreement is wholly based on what Wilfred had informed him (as he admitted in cross-examination). He had no personal or direct knowledge of any of the discussions between Wilfred and Dicky at the material time of the alleged making of the Collateral Agreement.

63.  Brian’s testimony has been discredited in cross-examination. As Counsel for Dicky’s Companies highlighted, Brian had in his witness statement claimed that in 2006, he was instructed by Dicky to utilize US$3.5 million of DSC’s credit facilities with UCB, to purchase shares comprising the CY Investment. He claimed that at the time, DSC’ total credit line with UCB was only US$5 million. In fact, when confronted with the documentary evidence in cross-examination, Brian had to accept that firstly, DSC’s facility with UCB at the material time was US$32 million, and that he did not know this. Secondly, he accepted that he was in fact acting under Wilfred’s instruction at the time. The payment was not even made by cheque, as he alleged in his witness statement, but by way of transfer.

64.  I agree that the evidence of Brian is convoluted, unconvincing and devoid of credibility. Both Brian and Poon were simply trying to parrot Wilfred’s evidence and to speak with one voice in order to add credence to Wilfred’s case. Their evidence is however contradicted by the contemporaneous documents.

65.  I have to conclude that there is simply no basis for the Court to accept the plank relied upon to support Wilfred’s case on the basis of the alleged Collateral Agreement, namely that Dicky was in financial difficulties and required the Properties to be transferred to his companies, in order to provide security against the indebtedness due from him/Dicky’s Companies. The truth of the matter remains to be that the credit facilities which were extended and continued to be extended to DSC/Dicky in and after March 2009 did not require or involve any form of security from the Properties.

66.  In addition, Wilfred’s claims as to the terms of the Collateral Agreement are uncertain and incredible, as to the indefinite period by which Dicky and Dicky’s Companies are bound to agree to Wilfred’s repurchase of the Properties, at a price which was never discussed, and for payment of interest at rates which had never been considered. As Counsel pointed out, it is disingenuous for Wilfred to claim that under the alleged Collateral Agreement, interest would be payable at the same rate payable by DSC to UCB, when he never had sight of the relevant financial documents between UCB and DSC in 2009, and he accepted that this had never been discussed between Dicky and himself.

67.  On the whole, it is improbable that the Collateral Agreement was agreed and had existed. As Wilfred himself claimed, there had been no discussions between Dicky and himself on the sale and purchase of the Properties, save for the fact that Wilfred required financial help and Dicky was willing to extend that. Due to their long relationship and history, it is credible that Wilfred and Dicky had never addressed their minds to conditions such as the payment of interest during the period of Wilfred’s occupation, the rate of interest payable, and (if the question of any possible repurchase by Wilfred had ever been raised) when and the price at which the Properties could be repurchased. If these matters had never been considered and discussed, then it is difficult for this Court to accept that the parties had reached any form of binding and enforceable agreement in these respects.

68.  I also reject the claim that the Properties were sold at undervalue, as there is no valuation or any evidence to support such assertion. The difference between the appraisal at the time of the SP Agreements and the purchase price of each individual property is not substantial – as Wilfred’s counsel had to accept. The individual differences make up the total difference, which Wilfred claims is substantial, but I cannot accept that this can afford any excuse to disavow all the SP Agreements, when Wilfred knew and had accepted each individual price. I accept the submission made for Dicky’s Companies, that the prices were in fact, on the evidence available, at market level.

69.  Having decided that there was no Collateral Agreement as alleged, it is not necessary to consider or make any finding on whether Dicky had authority to make the Collateral Agreement for Dicky’s Companies - which was the focus of the submissions made by Counsel for Wilfred’s Companies in Closing, and on whether the Collateral Agreement had been ratified by Dicky’s Companies.

Conduct and Part Performance?

70.  Counsel argued that the existence of the Collateral Agreement was coorborated or evidenced by the parties’ conduct, or part performance of the Collateral Agreement. This was also relied upon by Counsel to overcome the lack of registration of the oral Collateral Agreement.

71.  In this case, Wilfred also contends that Dicky or Dicky’s Companies are estopped from denying the existence of the Collateral Agreement, by reason of their subsequent conduct.

72.  I will therefore consider the conduct of the parties after March 2009 to decide whether it supports the existence of the Collateral Agreement, despite my conclusion that it was improbable, and that the premise and purpose of the Collateral Agreement as alleged is not established and is contradicted by the contemporaneous documents.

73.  The judgment of Lam VP (as His Lordship then was) in Ng Yuk Pui Kelly v Ng Lai Ling Winnie as the executor of the estate of Dung Wai Man, deceased and Others [2021] HKCA 724, CACV 86/2019, 14 May 2021 has been referred to by both Counsel, on the proper approach to be adopted when the Court considers the doctrine of part performance. At paragraphs 34 and 35 of the judgment, His Lordship first referred to the following part of the judgment of Lord Salmon in Steadman v Steadman [1976] AC 536:

“ … Although I accept the authorities which show that acts of part performance, if they are to take a parol contract out of the statute, must be acts from which the nature of the contract can be deduced, I do not accept … that payment can never constitute such an act because it is impossible to deduce from payment the nature of the contract in respect of which the payment is made. It is no doubt true that often it is impossible to deduce even the existence of any contract from payment…. Nevertheless the circumstances surrounding a payment may be such that the payment becomes evidence not only of the existence of the contract under which it was made but also of the nature of that contract. What the payment proves in the light of its surrounding circumstances is not a matter of law but a matter of fact. There is no rule of law which excludes evidence of the relevant circumstances surrounding the payment --- save parol evidence of the contract on behalf of the person seeking to enforce the contract under which the payment is alleged to have been made.”

74.  His Lordship then continued to explain at paragraph 36:

“It is clear from the citation above that a payment is to be considered in light of its surrounding circumstances and evidence of such circumstances (excluding the evidence on the parol contract) is admissible. To similar effect is the judgment of Lord Simon at p.561B to C (referring to attendant circumstances) and that of Lord Reid at pp.541H to 542A (referring to the whole circumstances).”

75.  Pertinently, Lam VP explained the doctrine of part performance as follows, citing from the judgments in Steadman v Steadman and Maddison v Alderson (1883) 8 App Cas 467:

“42. In Steadman v Steadman, supra at p.561F, Lord Simon said:

“… Again, I do not think that Lord Selborne’s description of acts of part performance as res gestae under the contract imports from the law of evidence into this branch of the law the requirement of substantial contemporaneity: Equity’s doctrine of laches and the requirement of referability provide superior and less technical safeguards against injustice.”

43. The rationale for the doctrine of part performance was explained by Earl of Selborne LC in Maddison v Alderson (1883) 8 App Cas 467 at pp.475 to 479. After pinpointing that the equity founded on part performance results from the acts done in execution of the contract instead of the contract itself, the Lord Chancellor elaborated as follows at pp.475-6:

“Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance; the whole purchase-money paid; the purchaser put into possession; expenditure by him (say in costly buildings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any Court inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences. If, therefore in such a case a conveyance were refused, and an action of ejectment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties, without taking the contract into account. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left undone.”

44. To reconcile the statute with the equitable doctrine, Lord Selborne said:

“…when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. So long as the connection of those res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such limitation of the scope of the statute… (p.476)

…

It is not enough that an act done should be a condition of, or good consideration for, a contract, unless it is, as between the parties, such a part execution as to change their relative positions as to the subject-matter of the contract. (p.478)

…

All the authorities shew that the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged. (p.479)”

45.     The requirement of referability was liberalised in Steadman v Steadman, supra (see in particular Lord Reid at pp.541H to 542A; Viscount Dilhorne at pp.554C and 556E; Lord Simon at p.564B to C).  On the other hand, Lord Salmon at pp.569G to 570E adopted a narrower test.  So did Lord Morris (who dissented in relation to the actual outcome) at p.546F to G.

46.     In the present appeal, Mr Lam (as he did before the judge) agreed that the appropriate test was set out by Viscount Dilhorne at p.556E:

“… In the course of the argument some discussion took place as to the interpretation of the word ‘unequivoval’ as used by Lord Selborne. I think it does not mean any more than that the acts of part performance which are alleged to have taken place must point to the existence of some such contract as alleged.”

47.     Using the test of unequivocal referability as explained by Viscount Dilhorne, we are of the firm view that when the acts we alluded to at [40] are considered against the surrounding circumstances (including those at [41] above) they do refer unequivocally to an agreement for the sale of the Flats by Kuen to Kelly.  As accepted by Mr Lam, it is not necessary for the acts to refer to the particular agreement with all the terms in the 1985 Agreement.  It is sufficient if the acts of part performance were referable to a contract of sale from Kuen to Kelly.” 

(Emphases added)

76.  As held in Ng Yuk Pui Kelly, the test for part performance is “unequivocal referability”, although it was highlighted that this only means that the acts are unequivocally referable to a contract as asserted, and not necessarily a contract in all the terms alleged.

77.  The evidence of part performance relied upon by Wilfred in this case is: the assignment of the Properties following the Collateral Agreement; Dicky and Dicky’s Companies allowing Clareville to use and occupy Units C and D (“Units”) and the car parking space No 6 of the Tai Yip Street Properties, without payment of rent; the letting out of the Units for the purpose of setting off the interest to be paid by FC when it should eventually buy back the Properties.

78.  As highlighted in Steadman v Steadman and in Ng Yuk Pui Kelly, it is important to consider the relevant acts in all the surrounding circumstances. Just as any payment claimed to be an act of part performance must be considered in the circumstances in which the payment was made, the acts of occupation and rent free use in this case must likewise be considered in all the surrounding circumstances of the case. These include the long relationship between Dicky and Wilfred, their friendship, and the inescapable conclusion that Dicky had at the relevant time been willing to help Wilfred out in his difficult financial circumstances. Taking all these into consideration, I am not persuaded that the conduct and acts relied upon are sufficiently and unequivocally referable to a contract of buyback and occupation as alleged by Wilfred. The conduct and acts are just as referable to an outright and concluded or determined sale, with an understanding that Wilfred and Clareville can remain at the Tai Yip Street Properties, due only to Dicky’s sheer generosity and intention to help his friend. Suzette’s evidence, which I accept, is that she had followed the practice out of respect for her father, and it had nothing to do with the Collateral Agreement.

79.  As for the payment of outgoings and expenses for the Units, this is referable to FC’s occupation and possession of the premises, and it cannot be inferred from such payment that there was a concluded and binding Collateral Agreement as alleged. As FC/Wilfred were enjoying the use of the Units, it is natural that their occupation and use should be accompanied by the burden of paying for the management and repair expenses and outgoings, and there is nothing unjust or unfair to require them to vacate the Units after expiry of the reasonable notice served by Well Dynasty.

80.  In short, I reject the contention that there were acts of part performance which “unequivocally point to the existence and enforceability of the Collateral Agreement”, as submitted by Counsel. The Collateral Agreement comprises not only the Rent Free Arrangement (as defined in this Judgment), but also the Buyback Arrangement.

81.  Reliance had further been placed on the emails which Wilfred had sent to Dicky from 2012 to 2015, by which Wilfred had chased Dicky for performance of the Collateral Agreement. Counsel made submissions to the effect that despite Wilfred’s constant and repeated reminders and requests, Dicky had not responded, and had neither denied the existence of the Collateral Agreement, nor acted to fulfill his obligations thereunder. In particular, it was pointed out that in November 2014, Wilfred had recorded the Collateral Agreement in writing, and had sent a draft agreement to Dicky for signature. It was submitted that “the absence of rejection” by Dicky and his failure to deny the existence of the Collateral Agreement is somehow evidence of his acceptance of the Collateral Agreement, or at least corroborates the existence of the Collateral Agreement.

82.  There is no merit in these submissions.

83.  It is not disputed, that by 2014 at the latest, Dicky was in bad health, as is demonstrated by Wilfred’s emails themselves which refer to Dicky’s illness, his medical treatment at the time, and the long period of his rest and recuperation. This was conceivably and understandably a reason for the absence of response from Dicky. In his witness statement, Wilfred acknowledged that during this period, Dicky had told him that they “would have the matters discussed” when they meet in Hong Kong.

84.  Wilfred’s emails are, on their face, his own account of events, and of his unilateral intentions. The statements made of his intention to buy back the Properties, and of Dicky’s prior indication of the possibility of Wilfred buying back the Properties from Dicky, cannot support or corroborate Wilfred’s plea of the Collateral Agreement and its terms.

85.  Some of the statements made in the emails in fact contradict the terms of the Collateral Agreement as pleaded and claimed in these proceedings. In his email of 4 July 2012, Wilfred only referred to the Tai Yip Street Properties, and not all the 3 Properties, when he claimed that there was a Buyback Arrangement.

86.  In his email of 13 June 2014, Wilfred referred to Dicky’s statement that Wilfred could buy back the Properties “in 3, 5 or 7 years”. If this was true, there would have been a further condition on the time for the alleged buyback, and on Wilfred’s own case, the first time he had asked to buy back the Properties was in 2014 (at the Landmark Meeting described below). In cross-examination, Wilfred in fact claimed that Dicky had originally said that the buyback should be “resolved soon”.

87.  The statement in Wilfred’s email of 13 June 2014 as to what Dicky had allegedly said at the racecourse was also equivocal, as it may have referred to a statement made after the date of the Collateral Agreement, and after the SP Agreements, rather than confirming the existence of the Collateral Agreement claimed to have been made months before January 2009. The claim in the same email, of what Wilfred had informed the board of directors of FC, is also different to his pleaded case in these proceedings. In the email, it was only stated that Wilfred had reported to the directors that the Properties had been transferred with Dicky’s agreement that the Properties could be purchased back with Dicky’s consent. Even on his account and report to the directors, Dicky’s consent was required for the buyback, and this is very different to the claim that Dicky was obliged/bound to sell back the Properties to Wilfred/FC, at the same price, at any time.

88.  Pertinently, Wilfred relies on an email dated 14 August 2015, in which he referred to a meeting he had with Dicky on 24 November 2014, at the Landmark Coffee Shop in Central, Hong Kong (“Landmark Meeting”). According to Wilfred’s evidence in cross-examination, it was at the Landmark Meeting that he first made the request to buy back the Properties. Further, according to Wilfred, it was agreed at the Landmark Meeting that Wilfred would purchase from Dicky the Tai Yip Street Properties for HK$10 million, and that the rest of the Properties would be retained by Wilfred, but upon Wilfred’s payment to Dicky of a further HK$10 million (“Landmark Agreement”).

89.  If there had indeed been a Collateral Agreement as Wilfred alleges, then the Landmark Agreement does not record or reflect the terms of the Collateral Agreement as claimed. If there was indeed a Landmark Agreement, then it would have replaced the Collateral Agreement. On Wilfred’s case, although he had send a draft of the Landmark Agreement to Dicky, and had instructed solicitors to follow up on the Landmark Agreement, that was not signed, and there was never any compliance by Dicky, and hence the Collateral Agreement remains in effect.

90.  It is significant that the prices agreed under the Landmark Agreement were different to the original prices under the SP Agreements. It is also pertinent that under the Landmark Agreement, Wilfred was prepared to let Dicky keep the Caine Road Property, the Kennedy Road Property and the Yuen Yuen Street Property for HK$10 million. This totally contradicts Wilfred’s assertion and persistence throughout that the Properties were all ancestral properties which he had been keen to retain and purchase back, and that this was the reason for him to secure the Buyback Arrangement from Dicky.

91.  The later emails in 2015 refer to the Landmark Agreement but as the terms are materially different to the Collateral Agreement, I cannot accept that these emails can be unequivocally referable to the Collateral Agreement.

92.  Overall, the emails can only show that Wilfred had made a request or offer to purchase the Tai Yip Properties, and was seeking Dicky’s agreement to the sale, and the price at which he was prepared to sell to Wilfred. This is equally consistent with the absence of the Collateral Agreement, as it was always possible for Dicky and Wilfred to agree on the terms of a sale and purchase of the Properties after the conclusion of an outright sale and purchase thereof in 2009.

93.  According to Wilfred, he had by 2012 already become suspicious of Dicky’s attitude towards honoring the Collateral Agreement and the promises he had made, and had begun to record his communications with Dicky in relation to his requests for the buyback of the Properties and Dicky’s responses. Wilfred’s evidence is that he had recorded all these communications by emails, telephone and meetings, and the records of such communications and his written notes were produced in evidence. These notes and his diary entries were meticulous on details as to who Wilfred had met or what Wilfred did, but unfortunately, none of them can support or show in any remote way that Dicky had agreed to the Buyback Arrangement, or acknowledged the existence or any terms of the Collateral Agreement. Nor do they even show that Wilfred had stated or in any way acted on his stance on the Collateral Agreement or the terms thereof as he now maintains.

94.  In conclusion, I reject the claim that the existence of the Collateral Agreement can reasonably be inferred in any way from the records and communications produced by Wilfred, or from any unequivocal conduct of the parties.

Estoppel Issue

95.  As Counsel for Dicky’s Companies rightly submitted, it is only in the event that this Court finds that the Collateral Agreement existed, but is not enforceable, that the question arises as to whether estoppel can apply to assist Wilfred’s Companies. As I have found against the existence of the Collateral Agreement, it is not necessary to consider estoppel as contended. In any event, there is no evidence of detrimental reliance or prejudice, to render it unjust or inequitable to permit Dicky’s Companies to enforce their rights. In brief, the reasons are as follows.

96.  There is no sufficient evidence that the Properties were sold at undervalue.

97.  There is no evidence to establish that the Properties had been assigned to Well Dynasty to enable Dicky and Dicky’s Companies to obtain banking facilities from UCB for their continued use.

98.  There is no evidence that Wilfred’s Companies had terminated their credit facilities on favorable terms with DBS in reliance on the Collateral Agreement or the assurances given by Dicky.

99.  The expenses and outgoings in relation to the Tai Yip Street Properties were incurred for Clareville/FC’s own use and occupation of the Tai Yip Street Properties.

Licence Issue

100.  Counsel only made limited submissions on this issue which does not appear to be seriously in dispute. Clareville had been occupying the Tai Yip Street Properties since 2009. On 27 August 2018, more than 2 years after Dicky passed away, Suzette procured Well Dynasty to serve notice of demand for the return and delivery up of vacant possession of the properties. Any gratuitous licence from Well Dynasty to Clareville to occupy the Tai Yip Properties had been terminated on 27 August 2018, and Well Dynasty is entitled to vacant possession.

101.  The amounts of mesne profits have been agreed and these are to be paid by Clareville for its occupation after 27 August 2018. I agree that on the evidence, Suzette had accepted the fact of Clareville’s occupation out of respect to her father, and regardless of any complaint she or Well Dynasty may have had, it was only in August 2018 that steps were taken to demand vacant possession from Clareville.

Disposition

102.  For all the above reasons, I find that there was no Collateral Agreement, and that any licence to Clareville to occupy the Tai Yip Street Properties was terminated.

103.  I accordingly grant to Well Dynasty the relief sought in HCMP 478, and dismiss the claims made in HCA 1842. Mesne profits are to be paid, as per paragraph 101 above, together with interest thereon from the date of the Originating Summons to payment, at judgment rate.

104.  The costs of these proceedings (including all costs reserved) are to be paid to Well Dynasty as Plaintiff in HCMP 478, and to Dicky’s Companies as the Defendants in HCA 1842.