CHEUNG YUK SHING t/a KAM SHING MOTOR TRADING CO. v. TANG HOI IP AND ANOTHER

CHEUNG YUK SHING t/a KAM SHING MOTOR TRADING CO. v. TANG HOI IP AND ANOTHER

The court accepted the Agency Agreement, consistent receipts and credible testimony of the Tangs and agent's assistant, and rejected Cheung's account; on the balance of probabilities the payments were management fees under an agency arrangement and not refundable rental advancements, therefore Cheung had no right of set-off and Spokesman was entitled to judgment for arrears and mesne profit while Cheung's claims against the Tangs were dismissed.

Citation
CHEUNG YUK SHING t/a KAM SHING MOTOR TRADING CO. v. TANG HOI IP AND ANOTHER
Parties
Plaintiff (hca 3764/2003): Spokesman Enterprises Limited; Defendant (hca 3764/2003); Plaintiff (hca 1218/2004): Cheung Yuk Shing trading as Kam Shing Motor Trading Co; 1st Defendant (hca 1218/2004): Tang Hoi Ip; 2nd Defendant (hca 1218/2004): Tang Man Wai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 November 2008
Case Number
HCA1218/2004
Procedural Posture
Civil Landlord and Tenant; Contract and Agency; Restitution / Trial Judgment (court of First Instance)
Outcome
Judgment for Plaintiff Spokesman Enterprises Limited in HCA 3764/2003 for arrears of rent; Defendant's counterclaim dismissed; HCA 1218/2004 dismissed (Cheung's claim against the Tangs dismissed).
Legal Topics
Arrears of Rent, Mesne Profit, Agency Agreement, Management Fee, Set Off, Money Had and Received, Misrepresentation, Documentary Evidence, Witness Credibility, Costs
Source Language
EN
Landlord and Tenant Contract Agency Restitution Property Civil Procedure Arrears of Rent Mesne Profit +8 more

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Parties

Spokesman Enterprises Limited

Plaintiff (hca 3764/2003)

Cheung Yuk Shing trading as Kam Shing Motor Trading Co

Defendant (hca 3764/2003); Plaintiff (hca 1218/2004)

Tang Hoi Ip

1st Defendant (hca 1218/2004)

Tang Man Wai

2nd Defendant (hca 1218/2004)

Procedural Posture

Civil Landlord and Tenant; Contract and Agency; Restitution / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether payments of HK$50,000 monthly were refundable rental advancements or non‑refundable management fees under an agency agreement
  2. 2 Whether Defendant could claim set-off against a third party who received the payments
  3. 3 Whether the documentary receipts and conduct of the parties supported restitution or a contractual agency relationship

Ratio Decidendi

The court accepted the Agency Agreement, consistent receipts and credible testimony of the Tangs and agent's assistant, and rejected Cheung's account; on the balance of probabilities the payments were management fees under an agency arrangement and not refundable rental advancements, therefore Cheung had no right of set-off and Spokesman was entitled to judgment for arrears and mesne profit while Cheung's claims against the Tangs were dismissed.

Court Disposition

Judgment for Plaintiff Spokesman Enterprises Limited in HCA 3764/2003 for arrears of rent; Defendant's counterclaim dismissed; HCA 1218/2004 dismissed (Cheung's claim against the Tangs dismissed).

Orders

  • Enter judgment for Spokesman Enterprises Limited in the amount of HK$1,050,000 (seven months arrears at HK$150,000 per month plus one month mesne profit of HK$150,000, less payment received on 6 November 2003 of HK$150,000)
  • Defendant to pay interest on HK$1,050,000 from date of issue of the Writ at judgment rate until payment