YUM SIU WAH v. AUTO ITALIA LTD

YUM SIU WAH v. AUTO ITALIA LTD

The court granted leave to amend and granted leave to appeal on specified points because there were arguable errors of law and fact in the Tribunal's treatment of the Employment Ordinance conflict, the accrual of commission on termination (and the alternative implied duty to use reasonable endeavours), and in the Tribunal's assessment of particular commission items; the order preserved costs to be determined in the cause.

Citation
[2018] HKCFI 2141
Parties
Claimant (appellant): Yum Siu Wah; Defendant (respondent): Auto Italia Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 September 2018
Case Number
HCLA14/2018
Procedural Posture
Labour Tribunal Appeal / Decision on Ex Parte Amendment and Grant of Leave to Appeal
Outcome
Leave to amend Form 14 granted; leave to appeal granted on specified points; no order as to costs of the ex parte application; costs of the application for leave to appeal to be in the cause subject to outcome.
Legal Topics
Employment Ordinance Section 17, Employment Ordinance Section 70, Rest Day Compensation, Commission Entitlement on Termination, Implied Terms of Employment, Leave to Appeal
Source Language
EN
Employment Law Contract Law Civil Procedure Employment Ordinance Section 17 Employment Ordinance Section 70 Rest Day Compensation Commission Entitlement on Termination Implied Terms of Employment +1 more

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Parties

Yum Siu Wah

Claimant (appellant)

Auto Italia Limited

Defendant (respondent)

Procedural Posture

Labour Tribunal Appeal / Decision on Ex Parte Amendment and Grant of Leave to Appeal

Legal Issues

  1. 1 Whether clause 5 of the employment contract contradicts s17 of the Employment Ordinance and is void under s70
  2. 2 Whether commission in respect of 31 sales contracts had accrued on termination despite subsequent cancellations
  3. 3 Whether there was an implied contractual term to use reasonable endeavours to procure performance so as to secure commission post-termination

Ratio Decidendi

The court granted leave to amend and granted leave to appeal on specified points because there were arguable errors of law and fact in the Tribunal's treatment of the Employment Ordinance conflict, the accrual of commission on termination (and the alternative implied duty to use reasonable endeavours), and in the Tribunal's assessment of particular commission items; the order preserved costs to be determined in the cause.

Court Disposition

Leave to amend Form 14 granted; leave to appeal granted on specified points; no order as to costs of the ex parte application; costs of the application for leave to appeal to be in the cause subject to outcome.

Orders

  • Leave to the claimant to amend the Form 14 dated 4 June 2018 as per the draft attached to the ex parte summons filed on 4 September 2018.
  • No order as to the costs of the ex parte application for amendment under paragraph 1 above.