ALPHA FINANCIAL PRESS LTD v. AMTD GROUP CO LTD AND ANOTHER

HCA 1362/2019

[2022] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1362 OF 2019

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________________________

________________________

DECISION

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A.  INTRODUCTION

1.  This is the 1^st Defendant’s appeal from a Master’s decision dated 26 April 2021 whereby summary judgment was entered in favour of the Plaintiff in the sum of HK$4,881,364.08 with interest.  Although the Notice of Appeal dated 10 May 2021 provides that “the 1^st Defendant … intends to appeal against” the Master’s decision, it is stated in the same document that the Appeal was brought by solicitors acting for both the 1^st and 2^nd Defendants.

2.  The Plaintiff first commenced this action against the 1^st Defendant only on the basis that the 1^st Defendant failed to settle an invoice issued pursuant to a contract for the provision of financial printing services (“the Printing Services Agreement”).  The 1^st Defendant, in its Defence, has pleaded that the alleged contractual document (the terms of which the Plaintiff relies on)  was “in fact intended to be addressed to [the 2^nd Defendant]” although it simultaneously denies that either the 1^st Defendant or the 2^nd Defendant had entered into any agreement with the Plaintiff.  In view of the 1^st Defendant’s pleadings, the Plaintiff decided to have the 2^nd Defendant joined in this action and thereafter amended its Statement of Claim by adding the words “and/or alternatively the 2^nd Defendant” following almost every reference to the 1^st Defendant. 

3.  In its Summons dated 29 October 2020 (“the Plaintiff’s Summons”), the Plaintiff sought summary judgment “against the 1^st and 2^nd Defendants”.  Notably, Andrew Au, in his Second Affirmation filed on behalf of the Plaintiff in support of the Summons, said as follows:-

“I would lastly wish to clarify that it was never the intention of the Plaintiff to seek summary judgment against the 1^st and 2^nd Defendants on a joint and/or several basis. As I have made it clear in this Second Affirmation, the Plaintiff’s primary case is that the 1^st Defendant is the contracting party to the Printing Services Agreement. The alternative case against the 2^nd Defendant was based on the averments in the Defence of the 1^st Defendant …”

4.  At the end of Andrew Au’s Second Affirmation, the Plaintiff asked “for final judgment to be entered into against the 1^st Defendant.”

5.  In the circumstances, it seems obvious that one of the primary issues in this appeal is whether the 1^st Defendant or the 2^nd Defendant entered into the agreement as alleged by the Plaintiff and should be held liable for the Plaintiff’s claim.

B.  BACKGROUND

6.  At all material times, the Plaintiff was carrying on a business as a provider of financial printing and translation services.  In or around early February 2017, the 2^nd Defendant was applying for its intended listing on the Hong Kong Stock Exchange. The listing application has been referred to by the parties as “Project Newson”. On 2 February 2017, one Mr Cheung Ming Lin (“Mr Cheung”)  (who, according to the Plaintiff’s evidence, was a representative acting for the 1^st Defendant)  sent an email to Ms Hermia Hung (“Ms Hung”)  of the Plaintiff with the following request:

“Separately, as discussed we would like to also obtain your quotes to act as the financial printer for Project Newson. One more piece of info is that we would also like to invite Wonderfulsky [sic] [which wholly owned the Plaintiff] and IR Global as PR and RS companies respectively, hence it would be great if there could be a packaged price considered …

…

Ming Lin Cheung 张铭炼

Capital Markets & Advisory | AMTD Group Co Ltd [i.e., the 1^st Defendant] …”

7.  In her reply dated 7 February 2012, Ms Hung for the Plaintiff sent Mr Cheung a document which was described as a quotation (“the Quotation”). The cover page of the Quotation states:

“香港上市之招股书及其相关服务之制作报价书

Newson 项目

QUOTATION FOR HK-IPO & RELATED SERVICES

PROJECT NEWSON

呈/TO: AMTD Group Co., Ltd [i.e., the 1^st Defendant]

Mr. Ming Lin Cheung

由/FROM:

啊尔法财经印刷有限公司

孔泇崳 小姐 Ms. Hermia Hung”

8.  The substantive provisions of this Quotation are divided into 4 sections.

9.  Section 1 contains the printing specifications and requirements.  It also provides the prices for Basic Fees (“the Basic Fees”)  under 2 packages (namely, “Capped Package 1” and “Capped Package 2”)  as follows:

	Price	Printing Quantity
Capped Package 1	USD 212,000	Hong Kong IPO Prospectus: 4pp Cover + 600pp Text (With 600 pages translation from English to Traditional Chinese, and vice versa) Reg S/144A Prospectus: 4pp Cover + 650pp Text
Capped Package 2	USD 172,000	Hong Kong IPO Prospectus: 4pp Cover + 400pp Text (With 400 pages translation from English to Traditional Chinese, and vice versa) Reg S/144A Prospectus: 4pp Cover + 450pp Text

10.  In addition to the Basic Fees, Section 1 also includes the option to purchase (1)  unlimited public holiday overtime (excluding Chinese New Year)  and (2)  translation services covering up to 100 additional pages for a flat fee of USD 16,000 and USD 10,200 respectively.   Further, Section 1 provides that the Basic Fees will cease to apply if (amongst other restrictions)  Project Newson fails to reach completion before 30 September 2017.

11.  Section 2 embodies the Plaintiff’s standard prices and rates for a variety of different services. In particular, Section 2 prescribes additional fees for work undertaken during the weekend between 9:00 am Saturday and 9:00 am Monday (“Regular Overtime”)  and work incurred during public holidays (“Public Holiday Overtime”)  as summarised in the table of hourly rates below: 

	Regular Overtime	Public Holiday Overtime
Customer Service	HKD 1,000/hr	HKD 3,000/hr
Chinese or English Typesetting	HKD 1,000/hr	HKD 3,000/hr
Translation	HKD 1,200/hr	HKD 3,600/hr

12.  It is worth noting that the Basic Fees in Section 1 already include unlimited weekday and weekend overtime shifts.   It therefore appears that the charges under Section 2 are only applicable to extraneous services not covered under Section 1. Moreover, Section 2 rates will be charged if the contracting customer does not qualify for Section 1 pricing. This is explained in Remarks 2 and 5 of the General Terms and Conditions (see Section 3, below), which state that:

“2 … Quoted prices are at a discount to standard printing rates, if additional printing is needed on top of the specifications in the PACKAGE PRICE [i.e., the Section 1 Basic Fees], associated printing fees will be calculated on standard prevailing rates [i.e, the Section 2 Standard Fees]. Increases in the total number of pages, quantity, specifications, or changes in color printing will require additional printing turnaround time. If the printing turnaround time needs to be reduced, a premium for urgent printing will be levied. Normal printing time will be calculated on a 24 hour basis from 09:00 hrs on Monday to 09:00 hrs on Saturday (excluding public holidays)  and calculated upon sign-off of the document.

  5… PACKAGE PRICE [i.e., the Section 1 Basic Fees] is subject to deal completion before September 30, 2017, while the services provided are for the documentation of the HKIPO prospectus does not apply to increases in document page count, changes in print requirements, increases in overtime services included, any form of expedited services, nor increase in other specifications. Package Price excludes additional English or Chinese translation / typesetting services, exclude additional conference room usages, exclude weekend, urgent and public holiday printing. Any work performed after this date or extra work shall incur additional charges based on unit rates [i.e, fees under Section 2] detailed in this proposal.”

13.  Under Section 3:

(1)  The “Payment Terms” impose, amongst other obligations, a 50% deposit as a precondition for commencement of any work (“the Deposit”), and a requirement to make full payment of the remaining balance within 30 days of the date of the invoice with 2.5% monthly interest (i.e., 30% p.a.)  accruing thereafter until satisfaction of all outstanding sums:

“Payment Terms – Client to pay a 50% deposit before the task commencement … a 30% deposit of the quoted amount before the AP submission to the Hong Kong Stock Exchange. Other production work and 100% of the out-of-pocket expenses will be charged as progress billing. Full payment of balance and any other third party expenses shall be due within 30 days from the date of the invoice. An interest of 2.5% per month will be levied on all amounts outstanding 14 days after the payment due date. The interest will be calculated from the payment due date until the full payment is received.”

(2)  If the transaction is not completed, is withdrawn, or becomes dormant for more than 90 days, the “Cancellation Clause” requires that:

“… all completed typesetting and translation services will be charged at HKD$550.00 and HKD$650.00 per page respectively…”

14.  Most importantly, the final part of the Quotation consists of a signature page entitled Proposal Acceptance Form and Confirmation of Engagement (“the Proposed Acceptance Form”), with the following remarks:

“ 建议书协议及确认文本

PROPOSAL ACCEPTANCE FORM AND CONFIRMATION OF ENGAGEMENT

6 February 2017

2017 年2月6 日

关于：AMTD – 香港招股上市及 REG S44A 国际配售一刷服务

RE: HONG KONG IPO & REG S/144A OFFERING PRINTING SERVICES

签署这份确认协议书将确认委任啊尔法财经印刷有限公司为贵公司（发行人）项目的财经印刷商，并同意以上所有上述之条款、套装价格及额外工作单价。

By signing below the Company (the Issuer)  agrees to select Alpha Financial Press as the financial printer for this transaction and agrees to the terms, package pricing and additional work rates herein.

貴司同意接受及負責交付啊尔法财经印刷有限公司之发票及其第三者费用，不论项目已经完成或者因任何原因而取消， 详情将参考报价书。

The Company (the Issuer) accepts responsibility for full payment of Alpha Financial Press’s invoice and third party fees upon completion or cancellation, for whatever reason, of this transaction.

同意及确认签署

Confirmed and accepted by

簽名 Signature	簽名 Signature
法定签署确实 (公司盖印) 代表： 日期：2017年2月6日	孔泇崳 销售及市场经理 啊尔法财经印刷有限公司 2017 年2 月6 日
此报价单之条款、规格及条件均属于机密及拥有考利。所有报价单内的资料与收件人有关 Terms, specifications [,] and conditions as presented in this quote letter are considered confidential and proprietary. Information within this quote letter is meant solely for the recipient to whom it is addressed.” (Emphasis added)

15.  There is no dispute that the Proposal Acceptance Form was never signed despite the requirement for the contracting parties to do so.  According to Andrew Au’s First Affirmation filed on behalf the Plaintiff, Mr Cheung represented to Ms Hung over the telephone that “the 1^st Defendant’s (and/or alternatively, the 2^nd Defendant’s)  director was constantly travelling” and wanted the Plaintiff to begin typesetting and translating work first while he would later arrange for the Proposal Acceptance Form to be signed. Thereafter, after Ms Hung’s resignation on 20 August 2017, nobody seemed to have paid any attention to the signing of the document.   The existence of this telephone conversation is disputed by the Defendants, specifically in the Affirmation of Wong Yui Keung Marcellus (“Mr Wong”).

16.  Given that the Proposal Acceptance Form was not signed by the parties, the Plaintiff resorts to the allegation that the Printing Services Agreement was verbally confirmed by “the 1^st Defendant and/or alternatively the 2^nd Defendant” and that an agreement was entered into by the parties’ conduct because work had been done in accordance with the requests made by “the 1^st Defendant, and/or alternatively the 2^nd Defendant”.

17.  Project Newson was abandoned sometime after 5 June 2017 as the listing application was rejected by the Hong Kong Stock Exchange. The last work instruction received by the Plaintiff was a written request on 23 July 2017 for repaginating the typeset proof of a prospectus, which, according to the Plaintiff, was duly completed by the Plaintiff later on the same day.

18.  On 27 February 2018, the Plaintiff issued an invoice dated 15 December 2017 allegedly pursuant to the Printing Services Agreement for the sum of HKD 3,366,458.48 (“the Invoice”), being the Plaintiff’s charges for all completed typesetting and translation services as well as additional charges and disbursements.

19.  The following is a summary of the breakdown of the Invoice:

Description		Price (HKD)
[Part 1] “第一部份: 超出合約範圍的招股書翻譯及排版”
780 pp x HKD 650 (Cancellation Clause)		507,000.00
672 pp x HKD 550 (Cancellation Clause)		369,600.00
672 pp x HKD 550 (Cancellation Clause)		369,600.00
1348 pp x HKD 25 (Electronic Transmission)		33,700.00
Sub-Total:		1,279,900.00
[Part 2] “第二部份: 其它印刷服務”
213,507 pp x HKD 0.6 (B&W Photocopy)		128,104.20
2,108 pp x HKD 8 (Color Laser Printing)		16,864.00
16,774 pp x HKD 2 (Book Proof Production)		33,548.00
Sub-Total:		178,516.20
[Part 3] “第三部份: 加班服務”
Regular and Public Holiday Overtime (Translation)
Feb 2017 (Total 22 Hours) 22 Hrs x HKD 1,200		26,400.00
April 2017 (Total 135 Hours) 102 Hrs x HKD 1,200 + 33 Hrs x HKD 3,600		241,200.00
May 2017 (Total 46 Hours) 20 Hrs x HKD 1,200 + 26 Hrs x HKD 3,600		117,600.00
Regular and Public Holiday Overtime (Typesetting)
April 2017 (Total 100 Hours) 52 Hrs x HKD 1,000 + 48 Hrs x HKD 3,000		196,000.00
May 2017 (Total 210 Hours) 33 Hrs x HKD 3,000		99,000.00
Regular and Public Holiday Overtime (Customer Service)
April 2017 (Total 100 Hours) 48 Hrs x HKD 1,000 + 8 Hrs x HKD 3,000		72,000.00
May 2017 (Total 210 Hours) 8 Hrs x HKD 1,000		8,000.00
Sub-Total:		760,200.00
[Part 4] “第四部份: 一般其它服務”
Meals (24 April 2017 – 5 May 2017) HKD 84,174.80 x (1+10% Service Charge)		92,592.28
Conference Rooms (27 February 2017 – 5 May 2017)	762 x HKD 750 per hour per room	571,500.00
	5375 x HKD 90 per person per hour	483,750.00
Sub-Total:		1,147,842.28
Total:		3,366,458.48

20.  It can be seen that certain charges have been billed for services performed as early as February 2017.  The point, which will be discussed below, may be relevant in relation to the question of when the Printing Services Agreement was entered into.

21.  To date, neither the 1^st Defendant nor the 2^nd Defendant have paid any sums due under the Invoice and/or the Printing Services Agreement (including the Deposit).

C.  PARTIES’ RESPECTIVE CASES

22.  On 26 July 2010, the Plaintiff filed its Statement of Claim containing the following allegations, some of which have already been referred to above:

(1)  On or around 6 February 2017, the Plaintiff entered into the Printing Services Agreement with the 1^st Defendant for Project Newson.

(2)  Whilst the Printing Services Agreement was never signed, the 1^st Defendant verbally confirmed it had engaged the Plaintiff “to become the financial printer for its Initial Public Offering project … pursuant to the … Printing Services Agreement” and had agreed to the “terms, package pricing, and additional work rates therein”, and the Plaintiff correspondingly accepted its engagement “to provide financial press and related services to the [1^st] Defendant”.

(3)  Following the verbal confirmation of the 1^st Defendant, a “substantial number of work requests was made by the 1^st Defendant (and their authorised agents)  for [Project Newson]”, and the Plaintiff had duly performed such work. Thus, in any event, the terms and conditions of the Printing Services Agreement were “impliedly consented” to and “accepted” by reason of the parties’ conduct.

(4)  The Cancellation Clause provided that all completed typesetting and translation services would be respectively charged at HKD 550 and HKD 650 per page in the event Project Newson was not completed, withdrawn, or had become dormant for more than 90 days. Furthermore, the Payment Terms stated that full payment of the balance and any other third party expenses would be due within 30 days from the date of the Invoice, with 2.5% monthly interest on all outstanding amounts being chargeable 14 days thereafter until payment of the full sum.

(5)  After Project Newson failed, the Invoice was issued for the Outstanding Sum of HKD 3,366,458.48, in relation to which payment fell due on 15 January 2018 (i.e., 30 days after the date of the Invoice).  Despite repeated requests, the 1^st Defendant failed to pay the Outstanding Sum.

23.  In its Defence filed on 25 November 2019, the 1^st Defendant responded as follows:

(1)  On or around early February 2017, the 2^nd Defendant (then not yet joined to these proceedings)  was in the process of undergoing an initial public offering and had approached various professional printing companies (including the Plaintiff)  for fee quotations.

(2)  On or around 6 February 2017, the Plaintiff sent the Quotation to Mr Cheung (an employee of the 1^st Defendant)  instead of the 2^nd Defendant. Nevertheless, the Quotation was in fact “intended to be addressed” to the 2^nd Defendant.

(3)  The Printing Services Agreement was not reached unless and until it was signed by the relevant parties and returned to the Plaintiff.

(4)  The terms in the Quotation only formed part of the contractual negotiations.

(5)  It was specifically denied that the 1^st Defendant had agreed to the terms of the Quotation and/or the Proposal Acceptance Form whether verbally, by conduct, or at all. It was also denied that the 1^st Defendant gave any work requests to the Plaintiff at all. Insofar as any work was done for Project Newson, it was performed in favour of the 2^nd Defendant and no work was done for the 1^st Defendant.

24.  On 9 September 2020, the Plaintiff was granted leave to join the 2^nd Defendant in these proceedings and also amend the Statement of Claim.  As mentioned above, in the Amended Statement of Claim, the Plaintiff added the words “and/or alternatively the 2^nd Defendant” following almost each reference to the 1^st Defendant.  Given the amendments, in short, the Plaintiff’s case is that it entered into the Printing Services Agreement with the 1^st Defendant and/or alternatively the 2^nd Defendant and the Invoice was issued for the work done for the 1^st Defendant and/or alternatively the 2^nd Defendant.

25.  However, as alluded to above, the Plaintiff maintains that its primary case is that it is the 1^st Defendant which should be held liable for the claim.

26.  On 29 October 2020, the Plaintiff’s Summons was taken out for “final judgment in this action against the 1^st and 2^nd Defendants” before any defence was filed on behalf of the 2^nd Defendant.  Judgment was entered by the Master on 26 April 2021.

D.  LEGAL PRINCIPLES

27.  The relevant legal principles are well-established.  Summary judgment should only be brought in cases where it is clear that the defendant cannot show a “real or bona fide defence” or “a fair probability of reasonable grounds that a bona fide defence exists”. The court should not embark on a mini-trial of affidavits, and unless it is obvious that the defence is “frivolous and practically moonshine”, summary judgment must not be granted: Hong Kong Civil Procedure 2022 at §14/4/9.

28.  While the burden lies on the Defendants to show a triable issue or a bona fide defence, a defendant’s failure to adduce positive factual evidence does not necessarily constitute a ground for summary judgment to be granted if the plaintiff’s pleaded case is fundamentally unsuitable for summary judgment from the outset. In explaining the risks of placing excessive attention on the quality of the defence, Cheung JA in Ju Yan Di Emperory Genesisy v Yau Wai Han [2015] 1 HKLRD 822 said:

“14. It is well established that the burden on the defendant in a summary judgment application is to show that he has a credible defence and he must condescend to give particulars of his defence. However, this does not mean that once the plaintiff invokes the application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case. This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim. This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence. This requirement is further recognised in the procedural rules which mandate the plaintiff to state his belief in the verifying affidavit that there is no defence to the claim. This requirement must be kept in proper perspective when assessment is made of the strength of the application, otherwise there is a danger that the attention will be focused solely on what the defendant has said without consideration at the same time of the basic premise of the plaintiff’s claim or its inherent strength and weakness …” (Emphasis added)

29.  Hence, the plaintiff is required to first show that it is a suitable case for summary judgment.  Only then will the burden shift to the defendant in showing that judgment should not be granted in the plaintiff’s favour because of an issue or question that ought to be tried, or because there are other reasons why there ought to be a trial: Ng Hung Ngan v Yeung Fook Mui [2014] HKLRD 805 at §§4, 10; Ju Yan Di Emperory Genesisy at §§14-17; Medishine Investment Ltd v Chiu Hon Ching [2021] HKCFI 2900 at §22(3); Hong Kong Civil Procedure 2022 at §14/4/1.

30.  If the plaintiff’s own case casts doubts on whether summary judgment should be granted, the proper course is to grant leave to defend: Billion Silver Development Ltd v All Wide Investments Ltd [2000] 2 HKC 262 (CA)  at 268C-270G; Medishine Investment Ltd at §22(2).

31.  Moreover, summary judgment will be granted on the merits of the plaintiff’s pleaded case. The statement of claim must therefore be complete and good in itself, and any defect or omission cannot be corrected by way of a supplemental affirmation. No new assertions of fact relating to the cause of action can be raised in the affirmation: Medishine Investment Ltd at §§22(1); Lai Yuen Wah v Hoi Kwong Printing Co Ltd & Ors [2003] 1 HKC 447 at 452A-C.

32.  Lastly, summary judgment should be refused where there is a dispute as to the terms of an oral contract being sued on unless the plaintiff demonstrates that (1)  it is entitled to judgment even on the defendant’s case, or (2)  the defendant’s case is neither truthful nor credible: Li Chuen Kwai v Po Lam Construction Development Ltd (unrep., HCA 2376/2013, 24 September 2014)  at §14; Hong Kong Civil Procedure 2022 at §14/4/22.

E.  ANALYSIS

33.  Before I proceed to discuss the substantive issues of the appeal, I wish to first deal with a procedural argument raised by the Defendants.  Counsel for the Defendants contends that since the Plaintiff sought a summary judgment against the 1^st and the 2^nd Defendants, it was required (under O.14 r.2(1)  of the Rules of the High Court (Cap. 4A))  to state in its supporting affirmations that “there is no defence to the claim brought against D1 and D2 jointly” or that “neither D1 nor D2 have any defence to the claim which is brought against D1 and D2 jointly”.   The Defendants’ argument is that the Plaintiff has failed to meet this mandatory requirement because the Plaintiff, by way of Andrew Au’s First Affirmation, has deposed, amongst others, to that “D1 and/or alternatively D2 has no defence” to the claim.  In other words, the Defendants criticise the Plaintiff for its failure to meet the procedural requirement due to the presence of the phrase “or alternatively” in its supporting affirmation.

34.  In this regard, Counsel for the Defendants relies on the decision of the Court of Appeal in Tan Khay Chuen & Anor v Ko Ping Shun Benson (unrep., CACV 238/2015, 8 July 2016).  In Tan Khay Chuen, the plaintiff’s application for summary judgment was based on a dishonoured cheque which was allegedly issued pursuant to a guarantee in respect of a loan agreement relating to the defendant.  However, the contents of the guarantee as shown in the plaintiff’s affirmations were at variance with the facts pleaded in the Statement of Claim.  Further, as the loan agreement had been amended, it was unclear from the materials adduced by the plaintiff as to whether the monies advanced related to the original loan agreement or the amended loan agreement.  It was against this background that the Court of Appeal held that “the mandatory requirement for summary judgment is not met”.

35.  In the present case, in relation to the basis of the claim, there are no inconsistencies (in respect of the parties against whom the claim has been made)  between the Amended Statement of Claim and the Plaintiff’s affirmations filed in the application for summary judgment as they all refer to the claim being against “the 1^st Defendant and/or alternatively the 2^nd Defendant”.  Although the Plaintiff’s Summons sought summary judgment against both the 1^st and 2^nd Defendants, it has clarified in Andrew Au’s Second Affirmation that it does not intend “to seek summary judgment against the 1^st and 2^nd Defendants on a joint and/or several basis” and that its primary case is against the 1^st Defendant only.  Hence, despite what has been sought in the Plaintiff’s Summons, there is no reason why the court cannot order summary judgment against only one of the Defendants if it thinks fit to do so.  It would, of course, be incumbent upon the Plaintiff to prove its application for summary judgment against either the 1^st Defendant or the 2^nd Defendant or both (if the Plaintiff intended to do so).  Whether the Plaintiff can prove its case for summary judgment against any of them is another question which will be addressed below.  However, the Defendants’ procedural argument, in my view, has no substance.

36.  For the purpose of this appeal, the substantive issues are as follows:

(1)  The existence/formation of the Printing Services Agreement.

(2)  The proper parties to the Printing Services Agreement.

(3)  The sums billed under the Invoice.

37.  The Quotation was prepared by the Plaintiff.  It contained the Proposal Acceptance Form which obviously envisaged that the terms of the Quotation should be accepted by the parties signing on the Proposal Acceptance Form as a contractually prescribed method of consent.   The fact that the Proposal Acceptance Form has never been signed by any party is not in dispute.  As discussed above, the Plaintiff’s reasons for not having the Proposal Acceptance Form signed by the parties are contradicted by the evidence of Mr Wong filed on behalf of the Defendants. 

38.  The Plaintiff alleges that there was a “verbal confirmation of the Printing Services Agreement made by the 1^st Defendant”.  However, the evidence in support of this allegation is rather scant. The First Affirmation of Andrew Au provides that “[o]n or around 1 March 2017, Mr Cheung of the 1^st Defendant verbally confirmed to Ms Hung by telephone” the Plaintiff’s engagement “pursuant to the terms of the Quotation”.  It further goes on to say “… I am advised and verily believe that by reason of the 1^st Defendant’s (and/or alternatively)  verbal confirmation through Mr Cheung of its acceptance of the terms of the Quotation, the Plaintiff and the 1^st Defendant (and/or alternatively, the 2^nd Defendant)  had entered into a binding agreement … as per the terms of the Quotation and as if … the 1^st Defendant (and/or alternatively, the 2^nd Defendant)  had signed the Form.”

39.  It appears that Andrew Au does not have personal knowledge of the above assertions as he never said he was present at the time when the alleged “verbal confirmation” was made.  Neither did he disclose any source of information regarding the same.  Further, his evidence is silent on the exact circumstances in which the verbal communication was made.  For example, there is nothing regarding what was actually said by the relevant parties at the material time. Nor is it clear whether any express reference was actually made to the terms of the Quotation (or any of them)  during the discussion.

40.  The Plaintiff also relies on the parties’ conduct (by way of work requests made by the 1^st Defendant and/or alternatively the 2^nd Defendant for Project Newson and the Plaintiff’s performance of the requested work).

41.  Whilst acceptance of a contract may take place by conduct, this is normally a fact sensitive exercise (see RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] 1 WLR 753; [2010] UKSC 14 at §§1 and 54)  that should typically be dealt with at trial.

42.  Moreover, it is important to bear in mind that in the present case, the Invoice issued by the Plaintiff is based on the terms of the Printing Services Agreement.  If it is unclear whether the parties have in fact agreed on the terms of the Quotation, the mere fact that work was done in accordance with the Defendants’ request may only mean that the Plaintiff is entitled to claim quantum meruit for the work done (which has not formed a part of the Plaintiff’s pleaded case). Hence, the Plaintiff’s reliance on the Invoice having been issued does not necessarily show whether an agreement has been reached on the terms alleged by the Plaintiff.

43.  Regarding the time when the Printing Services Agreement was formed, the Plaintiff in its pleaded case alleges that it was created on or around 6 February 2017.  There is nothing in any of the Plaintiff’s affirmations which lends credence to this part of its case.  Insofar as the Plaintiff relies on the alleged verbal acceptance of the terms of the Quotation by the 1^st Defendant and/or the 2^nd Defendant, its case is that the terms were orally accepted only on or about 1 March 2017.

44.  The above discrepancy on the question of time is not merely a matter of chronology or formality.  They are relevant to the Plaintiff’s entitlement to the sums under the Invoice, given that such sums cover charges for services which were provided from 15 February 2017.  In other words, if the agreement was not even reached before 15 February 2017, there would be a dispute on whether the Plaintiff could rely on the contractual terms for the services rendered on or before that date.

45.  Apart from the question on the existence of the Printing Services Agreement, there is, I think, plainly a dispute on who the parties to the alleged agreement were.

46.  On the cover page of the Quotation, the 1^st Defendant was stated to be the intended recipient of that document.  However, as mentioned above, it was the issuer who was required to sign the Proposal Acceptance Form (which was prepared by the Plaintiff). 

47.  It is noted that under the document entitled “Working Party List of Project Newson”, the “Issuer” was stated to be “AMTD” without specifying if “AMTD” referred to the 1^st or 2^nd Defendant even though the persons named under “Issuer – AMTD” were referred to as officers of the 1^st Defendant.  However, there is an unequivocal statement made by the Plaintiff (see Andrew Au’s First Affirmation §32)  that “the 1^st Defendant was not the issuer” but it was “one of the Joint Global Coordinators as evidenced by the Working Party List”.

48.  In this connection, the Plaintiff has attempted to put forward the following explanation:-

“… [T]he Form [i.e. the Proposal Acceptance Form] is a standard form used by the Plaintiff in every transaction.  The wording “the Company (the issuer” does not mean that only the issuer can be a party to the Printing Services Agreement.  However, by entering into the Printing Services Agreement, the issuer also accepts responsibility for full payment of the Plaintiff’s invoices, and it is indeed customary for the Plaintiff’s fees to be settled out of the listing proceeds as part of the fees and expenses incurred in the listing process.”

49.  This however, fails to explain why the 1^st Defendant (who was not the issuer according to the Plaintiff’s own case)  was required to become a contracting party and undertake the payment obligations for the services provided by the Plaintiff.  On the contrary, the Quotation prepared by the Plaintiff demonstrates that even from the Plaintiff’s perspective, it was the issuer (as opposed to the 1^st Defendant)  who was expected to confirm the terms of the Quotation by signing the Proposal Acceptance Form.

50.  The Plaintiff seeks to justify its decision to have the 2^nd Defendant joined in this action by saying that “the sole purpose of joining the 2^nd Defendant as a party is to avoid unnecessary argument over the identity of the contracting party”.  

51.  I find it difficult to follow this explanation.  To say the least, had the Plaintiff been adamant that the 1^st Defendant was the party which entered into the Printing Services Agreement, it should have stuck to its guns against the 1^st Defendant without having to join the 2^nd Defendant into the proceedings and amend its pleaded case by adding the words “and/or alternatively the 2^nd Defendant”.  The Plaintiff’s decision to bring the 2^nd Defendant into the picture demonstrates its own uncertainty as to whom it actually entered into the Printing Services Agreement with.  In other words, the Plaintiff’s own case readily and inherently gives rise to a factual dispute on the fundamental issue regarding the proper parties to the alleged agreement. In any event, the fact that the Plaintiff has later clarified that its “primary case” is against the 1^st Defendant does not resolve the factual uncertainties surrounding the question of who the proper parties to the Printing Services Agreement were.

F.  CONCLUSION

52.  I am satisfied, on the basis of the above analysis, that there are factual disputes in this matter which cannot be resolved by way of affidavit evidence.  It might be said that ultimately either the 1^st Defendant or the 2^nd Defendant would be held liable for the Plaintiff’s claim (or perhaps a part of it).  It, however, is a matter for trial and it only reinforces that it is not a suitable case for summary judgment.

53.  In the circumstances, I make an order that this appeal (by Notice of Appeal filed on 10 May 2021)  be allowed and that the Judgment dated 26 April 2021 (including the costs order therein)  be set aside.

54.  Moreover, as discussed above, in view of the issues inherent in the Plaintiff’s own case, summary judgment should not have been sought in the first place.  Further, I note that the Plaintiff’s Summons was taken out after Defence had been filed. In the circumstances, I also make an order that the Plaintiff’s Summons filed on 29 October 2020 be dismissed.

55.  Costs (in respect of the Plaintiff’s Summons and this appeal)  should therefore follow the event.  However, in respect of this appeal, and with no disrespect to Counsel, I believe that the complexity of the matter does not justify a certificate for two counsel.  I also take the view that there is no reason why the 2^nd Defendant should be involved in this appeal, given that the Master only entered judgment against the 1^st Defendant.  However, the Plaintiff’s Summons before the Master was against the 1^st Defendant and/or the 2^nd Defendant.  In the circumstances, I make an order nisi that (1)  the Plaintiff shall pay forthwith the 1^st Defendant’s costs of and occasioned by this appeal with no certificate for two counsel, to be taxed if not agreed; and (2)  the Plaintiff shall pay the 1^st and 2^nd Defendants’ costs of and occasioned by the Plaintiff’s Summons filed on 29 October 2020, to be taxed if not agreed.

56.  The above costs order nisi shall become absolute unless an application to vary the same is taken out within 14 days from the date of this Decision.

57.  In relation to directions for further conduct of these proceedings, I would expect the parties to discuss between themselves and try to reach an agreement.  If there are any issues which need to be resolved, they may bring them to the attention of a Master as and when necessary.