XCHRX DARTON LTD. v. HONG KONG ISLAND DEVELOPMENT LTD.

DCCJ15672/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15672 OF 2000

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Judgment

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This is an application by the Plaintiff under Order 14A that :-

"(a) the following question of law may be determined, namely, whether the Defendant had provided any consideration in return for a deposit at HK$302,118.00 ("the deposit") paid by the Plaintiff to the Defendant pursuant to an agreement contained in a letter dated 6th April 2000 from the Defendant to the Plaintiff and signed by the Plaintiff on 11th April 2000 that was marked with "Subject to Contract and Availability";

(b) that if the said question be answered that the Defendant had not provided any consideration for the payment of the deposit, then judgment be entered for the Plaintiff against the Defendant for the amount claimed in the Statement of Claim with interest as therein claimed and costs or if the question be answered that the Defendant had provided consideration for the deposit then the action be dismissed and that the Plaintiff do pay the Defendant's costs thereof."

2. The facts of the case are not in dispute. On 6th April 2000, the Defendant made an offer to the Plaintiff in writing ("the Letter") in the following terms :-

"Subject to Contract & Availability

Confidential

Dear Sirs,

Re:	New Letting Rooms 1508-1509, AIA Tower, New world Centre 20 Salisbury Road, Tsimshatsui, Kowloon

Further to the letter (Ref. KLR/L016/NWOB/SA) dated 21st March 2000 from your agent "Kiu Lok International Realty Ltd", we are prepared to offer you on a subject to contract basis a tenancy of the above premises on the following terms and conditions:-

Premises

Rooms 1508-1509, AIA Tower, New World Centre, 20 Salisbury Road, Kowloon. (as for identification purpose only shown red on the attached plan)

Term

Two years commencing from 16th May 2000 to 15th May 2002, both dates inclusive, with an option to renew for another two years at open market rental.

Use of Premises

The premises shall be restricted to the user for use as an office only.

Rental

Year 1-2 : (fixed term)	HK$80,997.00 (HONG KONG DOLLARS EIGHTY THOUSAND NINE HUNDERED AND NINETY SEVEN ONLY) per month, exclusive of rates and operating charges, payable monthly in advance.
Year 3-4 : (option term)	At open market rent.

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Deposit

Upon acceptance of this offer, a cash deposit of HK$302,118.00 (HONG KONG DOLLARS THREE HUNDRED TWO THOUSAND ONE HUNDERED AND EIGHTEEN ONLY) being the equivalent of three months' rent, operating charges and rates will be required. For avoidance of doubt, this deposit shall be non-interest bearing and will unconditionally become non-refundable if for any reason whatsoever you do not proceed to execute the tenancy agreement and that this item only is expressly not subject to contract.

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Tenancy Agreement

The Tenant shall on or before 20th April 2000 sign and execute a formal Tenancy Agreement in our standard form.

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General

This offer shall otherwise be subject to the terms and conditions as contained in our standard tenancy agreement mentioned above.

Please confirm your acceptance of the above terms by signing and returning to us the enclosed duplicate copy of this letter on or before 13th April 2000.

Upon returning the duplicate copy of this letter, please also forward to us a cheque drawn in favour of "HONG KONG ISLAND DEVELOPMENT LIMITED" in the sum of HK$405,624.00 made up as follows :-

1) Non-Interest Bearing Deposit	HK$302,118.00
2) Rental from 16/8/2000-15/9/2000	HK$82,304.00
3) Operating charges from 16/5/2000-15/6/2000	HK$17,639.00
4) Rates from 16/5/2000-30/6/2000	HK$3,563.00
	HK$405,624.00 ============

Unless we are in receipt of your acceptance confirmation and deposit cheque on or before the 13th April 2000, our offer shall lapse automatically."

3. The Letter was countersigned by the Plaintiff on 11th April 2000 and returned on the same day with a cheque for $302,118 made payable to the Defendant. However, the Plaintiff did not proceed to execute the tenancy agreement. On 4th May 2000, the Plaintiff through its solicitors informed the Defendant that it did not intend to enter into the tenancy agreement the subject of the Letter. By letters dated 4th May, 31st May and 27th June 2000, solicitors for the Plaintiff demanded repayment by the Defendant of the deposit. The Defendant refused.

4. It is common ground that before the negotiations leading to Letter, the Plaintiff was already the tenant under the Defendant of the premises 1510-1512, AIA Tower and it was mutually understood that by taking up 1508-1509, AIA Tower the Plaintiff would expand its offices in AIA Tower by combining the two adjoining premises. But, for whatever reason, the Plaintiff decided not to proceed with the expansion and hence the letting of 1508-1509 AIA Tower was aborted.

5. The Order 14A summons is self-explanatory. It accords with the statement of Claim :-

"12. The Plaintiff says that the agreement between the Plaintiff and the Defendant is and was "subject to contract" and is and was not legally binding. Despite the provision in the Letter as referred to in paragraph 5 above, there was and is no consideration to support the payment of the said deposit.

13. In the premises, the Defendant is liable to repay the Plaintiff the said deposit of HK$302,118.00

14. The Plaintiff also claims interest under section 48 of the High Court Ordinance, Cap. 4 on any amount payable by the Defendant for such period and at such rate as this Honourable Court may deem fit.

AND THE PLAINTIFF'S CLAIMS :-

(1) The repayment of the deposit of HK$302,118.00;

(2) Interest;

(3) Costs; and;

(4) Further or other relief."

6. During the hearing before me, Mr. Chan for the Plaintiff confirmed that the cause of action relied upon by the Plaintiff is money had and received. Moreover, in response to my query regarding the meaning and effect of the expression "subject to contract and availability" in the Letter, Mr. Chan further confirmed that, for the purposes of this Order 14A summons only, the court should disregard the words "and availability" in that expression. Thus, the court is only concerned with a simpler "subject to contract" document.

7. According to the Defence, and the position taken by Mr. Sarony SC for the Defendant,

"12. Paragraph 12 of the Statement of Claim is denied. The Agreement as pleaded under paragraph 6 hereof is legally binding and not subject to contract. The consideration to support the Agreement is, inter alia, :-

(a) signing of the Letter by the Defendant; and

(b) withdrawing of the Property from the market until the Plaintiff has decided not to enter into a tenancy agreement with the Defendant.

13. Paragraph 13 of the Statement of Claim is denied. The Plaintiff has not disclosed any cause of action for payment of the sum of HK$302,118.00.

14. Paragraph 14 of the Statement of Claim is denied. The Plaintiff is not entitled to claim any of the reliefs sought."

8. In support of his client's cause, Mr. Chan relied on Chillingworth v. Esche [1924] 1 Ch. 97 and Yu Tai Hing Land Agency Ltd. v. Leung Wing Yin [1986] HKC574. In both cases, a deposit was paid under a subject to contract document and the courts held that the deposit must be refunded upon failure to enter into formal contract.

9. Mr. Sarony SC for the Defendant mounted a two prong attack on the Plaintiff's claim. First, dicta in Yu Tai Hing Land Agency Ltd. indicates that actual forbearance by the landlord to lease premises to other prospective tenants coupled with implied request from the tenant to the landlord to so forbear is good consideration. That this is the law is accepted by Mr. Chan. Mr. Chan also conceded that there was indeed forbearance. Mr. Sarony SC, therefore, contended that the court must draw the inevitable inference that the Plaintiff had impliedly requested forbearance. Otherwise, why would the Plaintiff, which was dealing at arms length with the Defendant, pay a substantial deposit knowing that the deposit would be irrecoverable?

10. With regard to the claim based on money had and received, Mr. Sarony SC suggested that the present case is to be distinguished from Chillingworth in which the subject to contract document was silent on when and how the deposit should be returned or retained by the vendor. The present case may also be distinguished from Yu Tai Hing Land Agency Ltd. where the "subject to contract" expression applied to the deposit forfeiture provision. In the present case, the forfeiture of deposit provision (absent in the Chillingworth case) is specifically stated to be unconditional and not subject to contract. Since the provision was agreed upon by commercial parties dealing at arms length, it ought to be respected and upheld by the Court.

11. Mr. Sarony SC made reference to several passages in the judgments in Chillingworth. In particular, Pollock MR at pp 107-108 said:-

"In Howe v. Smith where the nature of a deposit was considered and the right of a purchaser to the return of it, Bowen L.H. said: "The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made." And Cotton and Fry L.JJ. say substantially the same thing. Therefore we have to consider what in fact was the effect of the document of July 10, 1922, not forgetting the contemporaneous documents, and to ask ourselves whether this deposit was by those documents intended to pass irrevocably to the vendor if the purchasers did not carry out the transaction. In all the circumstances of this case, I think the deposit is recoverable by the purchasers. There was no provision made in the documents which would justify the vendor in declining to return it; though if he had, by appropriate words, made provision for that in the document, such a provision could have been upheld."

Leading counsel pointed out that in the case before me, the Defendant has "by appropriate words, made provision for [forfeiture of the deposit] in the document", hence the provision should be upheld as the Master the Rolls presumed.

12. Mr. Chan drew my attention to the facts in Chillingworth and Yu Tai Hing Land Agency Ltd. In those two cases, land or premises were to be acquired for expansion of adjoining property already held by the party who paid the deposit. Yet neither the English Court of Appeal nor our Court of Appeal was prepared to find an implied request for forbearance. Reliance was also placed on Chitty on Contracts, 28th Edition, para 13-009:-

"Where term not implied. A term ought not to be implied unless it is in all the circumstances equitable and reasonable. But this does not mean that a term will be implied merely because in all the circumstances it would be reasonable to do so or because it would improve the contract or make its carrying out more convenient. "The touchstone is always necessity and not merely reasonableness." The term to be implied must also be capable of being formulated with sufficient clarity and precision. But it may be that lack of precision in the criterion to be embodied in the term is not fatal to any implication, since "it is no novelty in the common law to find that a criterion on which some important question of liability is to depend can only be defined in imprecise terms which leave a difficult question for decision as to how the criterion applies to the facts of a particular case." A term will not be implied if it would be inconsistent with the express wording of the contract."

Thus I should be slow to find an implied request on the part of the Plaintiff that would perfect the consideration.

13. I have to accept that in the instant case there was clear agreement for forfeiture. This distinguishes the instant case from Chillingworth and Yu Tai Hing Land Agency Ltd. On this basis, I can and do in the circumstances find an implied request for forbearance as a matter of necessity to give business efficacy to the arrangement between the parties. However, the Defendant has not pleaded "implied request" in its Defence. The "implied request" arose only during Mr. Sarony's submissions. I wonder if this is a technical weakness in the Defendant's case on the present state of the pleadings.

14. On the other hand, at the end of the day, the question of consideration is a matter of defence. The crucial question, rather, is whether the Plaintiff can rely on "money had and received" and substantiate that cause of action. Even when the Defendant fails to show consideration in support of the agreement for forfeiture, the Plaintiff must show viable cause for recovery of the deposit.

15. From the little I know, I believe a party is entitled to recover money had and received if, for instances, there was payment by mistake or unjust enrichment. I am not aware of any authority wherein money conscientiously and unconditionally paid over has been held to be recoverable even though the payee may not demand payment. Suppose Party A makes a cash gift to Party B, it is trite law that, once the gift money has been paid over to Party B, Party A cannot subsequently demand refund even though Party B furnished no consideration for the gift. I am not suggesting that the payment of deposit by the Plaintiff can be likened to a gift. The example of gift serves only to illustrate that a party who has parted with his money does not per se have the right to recover it on the ground of money had and received. And I believe a party who has parted with his money with the clear understanding that the other party has unconditional right to use the money has to demonstrate that he has retained at least an equitable interest in the money before he is entitled to demand repayment.

16. In Chillingworth, Pollock MR observed at p. 107 that,

"but I think the onus of showing a right to retain it rests on the vendor, and I agree with Eve J., who takes that view in his recent decision in Wright v. Pocklington. The authority for it is to be found in Baylis v. Bishop of London, where Hamilton L.J. said: "The question is whether it is conscientious for the defendant to keep the money, not whether it is fair for the plaintiff to ask to have it back," and in cases of "money had and received" in the old forms of lost the use of the money. I cannot agree with Mr. Micklem's view that the purchasers were placed in no difficulty by their money being left in the hands of the vendor, while the vendor was under a difficulty by reason of his having made a preliminary agreement, not for the moment binding, to sell the property, and therefore could not offer it to any one else."

17. In the present case, I believe the Defendant has discharged the onus of showing a right to retain the deposit. The Defendant relies on a forfeiture provision which is not subject to contract. Mr. Chan concedes that the provision constitutes an agreement between the parties. It is idle to contend that the agreement is not enforceable for lack of consideration because the Defendant is not seeking to enforce the agreement. The money is already placed in the hands of the Defendant by the Plaintiff which is a fact that, according to Pollock MR, places the Plaintiff in difficulty. The Plaintiff has given up use of the money. The Plaintiff has to show why equity should come to its assistance. Since Chillingworth and Yu Tai Hing Land Agency Ltd. are clearly distinguishable from and of no assistance in the instant case, the Plaintiff in effect has made a bare assertion only that it is entitled to recover the deposit as money had and received.

18. In the premises, I am driven to the conclusion that the Plaintiff has not made good its case. I am not sure if I can at this stage strike out the action but the Order 14A summons must be dismissed with costs to be taxed if not agreed. This simplistic judgment does not fully reflect the respective nimble and delicate case counsel for each side had to canvass, there is certificate for two counsel for the Defendant.