大象商旅服務（深圳）有限公司 v. RICH TRAVEL SERVICE LTD

DCCJ 5846/2018

[2019] HKDC 1352

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5846 OF 2018

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JUDGMENT

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Introduction

1.  This is an application by the plaintiff for summary judgment for the sum of $764,304.00 together with interest from 19 December 2018, at the rate of 1% over prime rate until judgment.

2.  The plaintiff is a travel agent based in Shenzhen.  By its unamended State of Claim dated 19 December 2018, it claims against the defendant for the refund of monies paid for the supply of air tickets but which were never supplied.  The plaintiff averred in its unamended Statement of Claim that by 6 Sales and Purchase of air tickets agreements, the defendant (a travel agent based in Hong Kong) agreed to sell 292 air tickets to the plaintiff, as evidenced by 6 invoices, particularized in paragraph 4 therein.  The plaintiff then avers that sale and purchase agreements were entered into by one Yung Yee Fai (also known as “Berry Yung”), acting expressly as the defendant’s agent and on the defendant’s behalf in dealing with the plaintiff.

3.  The plaintiff further averred that the invoices were settled in full by way of payments into the Bank of China account of the defendant on dates therein particularised, with the plaintiff paying the defendant a total of $1,156.720.00 (taking credit for earlier payments of $28,000 and $9,000), but the defendant only delivered 96 tickets on or about 15 November 2018.  It is then averred that the defendant thereafter did not or refused to deliver the remaining tickets, and is thereby, obliged to refund the plaintiff in the amount of $801,304.00.

4.  The defendant filed a Defence on 7 May 2019, denying that it had any commercial relationship with the plaintiff.  The defendant admitted in its unamended Defence that it did receive payments in its account with the Bank of China in the same amounts and on the same dates as stated in the Statement of Claim but those sums were payments made by one Lester Hui for the sale of air tickets by the defendant to Lester Hui and there thus was no commercial relationship between the defendant and the plaintiff or at all.

5.  Upon seeing the Defence, the plaintiff amended its Statement of Claim on 3 May 2019 by adding a paragraph 10A in the following terms:-

“Alternatively, even if the Defendant did not have any commercial relationship or dealings with the Plaintiff and the Defendant did not enter into the Ticket Sale and Purchase Agreements with the Plaintiff (as alleged by the Defendant and denied by the Plaintiff), the Defendant would still be liable to return the sum of HK $764, 304 (i.e. HK $1, 156, 720 [sum transferred to the Defendants’s account as pleaded in paragraph 6 above] less HK $392, 416 [value of 96 delivered tickets] to the Plaintiff in any event, as the Plaintiff would have made such payments on the basis of its mistaken believe that the Plaintiff had entered into the Ticket Sale and Purchase Agreements with the Defendant and such payments were to settle invoices issued by the Defendant”.

6.  The defendant amended its Defence by denying the aforesaid paragraph 10A in the Amended Statement of Claim.

7.  The plaintiff, appearing by Counsel, applied for summary judgment on the basis of this alternative case.  The argument is that the payment had been directed into the defendant’s Account upon the mistaken belief that the payment was payment for air tickets supplied by the defendant.  Thus, the plaintiff seeks not to rely on its primary case.

Decision

8.  Both the plaintiff and the defendant, who also appeared in Court by Counsel, have by their representatives made affirmations, which have been filed in Court. 

9.  In an application for summary judgment, it is trite that the case has to be clear that there is no arguable defence to the action.  The practice is that unless, on the evidence, the Defence put forward by the defendant is unsustainable, then summary judgment should not be given.  I remind myself that this is not a trial on affidavit, but merely an exercise as to whether the defendant has shown that he has a case which should be tried, namely, whether the case put forward is something to which credence could reasonably be ascribed in the circumstances of the case[1].

10.  The plaintiff’s reliance on mistake cannot be simply looked at in a vacuum.  In paragraph 10A of the Amended Statement of Claim, the plaintiff pleads mistaken belief that monies paid into the defendant’s Bank of China Account was payment to the defendant for sale of air tickets by the defendant to the plaintiff.  Each of the invoices exhibited to Mr Ouyang Wujin’s affirmation (“OYWJ-2”), however, showed that the invoices purported to be invoices issued by the defendant signed by one Lester Hui issued not to the plaintiff but to “Mr Berry Yung, ATTN: Shenzhen Leading Holiday Travel Service Co., Ltd”.  There are two boxes at the bottom of each invoice to the following effect:-

First Box:

“Please kindly settle the payment on or before 21-Aug-2018 of the follow account”

Second Box:

“BANK NAME: BANK OF CHINA (HONG KONG)

ACCOUNT NO.:012-874-1-1083231

BENEFICIARY’S NAME: RICH TRAVEL SERVICE LTD”

11.  As it is the case of the plaintiff that it dealt with Berry Yung acting expressly as agent for the defendant, and the invoice relied on was issued to Berry Yung with the direction for payment as shown in the Second Box where the beneficiary is clearly shown as the defendant, there can be no mistake that the payment was intended to be made to the defendant.

12.  It is the defendant’s case, as shown in the detailed affirmation affirmed by Chan Yuk King, Sherla, that the defendant had only contracted with Lester Hui as shown by invoices exhibited showing sales to an unspecified buyer but “Attn: Lester Hui” (“CYKS-5”).  Given the circumstances shown by the two sets of invoices in the respective affirmations of the parties, it is also well possible that Lester Hui on-sold to Berry Yung who then on-sold to the plaintiff, with directions for payment to the defendant.  It is not unusual in commercial transactions for payments to be made by third parties.  It also equally possible, on the evidence presented in the affirmations, that Berry Yang was constituted an agent for the defendant.  Under either scenario, it is not unusual for payment to be directed to be made to the defendant, and in either case, such payment does not appear to be a mistaken payment.

13.  In the world of wholesaling of air tickets, it seems from the evidence before the Court that it is not beyond the bounds of reasonable possibility that tickets are sold from party to party, that is from one wholesaler to another, with payments directed from one contracting party to the ultimate seller. 

14.  Whether or not there was a contractual relationship between the plaintiff and the defendant through the agency of Berry Yung is a matter which has to be tried.  It is clear to me that the defendant has shown an arguable defence as the documents do not show clearly on a balance of probability that the payment made by the plaintiff to the defendant was mistaken.

15.  On the contrary, there is a potential case that the payment by the plaintiff to the defendant was made pursuant to a contract either through the agency of Berry Yung for the defendant or as the defendant says, a contract with Berry Yung as Principal against a back to back contract between Berry Yung and Lester Hui who in turn contracted as a principal with the defendant for the same air tickets.

16.  Accordingly, despite the able arguments of Counsel for the plaintiff, it is clear that this is not a case where the Plaintiff can reasonably expect to get summary judgment.

Disposition

17.  It is hereby ordered that the summons for summary judgment be dismissed.

18.  I shall make an order nisi that the costs of this application be paid by the plaintiff to the defendant, with certificate for Counsel, to be taxed if not agreed.  This order nisi shall become absolute if no application for variation is made within 14 days hereof.

19.  Finally, I would like to thank Counsel for their assistance in this application.