AH FAT JEAN MAX v. XIAN CORP LTD

AH FAT JEAN MAX v. XIAN CORP LTD

The Court upheld the Presiding Officer's interpretation that the Annual Commission Clause entitled the appellant to 10% of net profit attributable to his own profit centres; the US$50,000 and US$40,000 payments were interim payments accepted by the appellant and, by the parties' conduct, precluded reliance on the No Oral Modification Clause (waiver/estoppel); the housing allowance was provided in kind and varied by conduct and lapsed on termination; the appellant failed to prove entitlement to the claimed annual leave; accordingly the appeal was dismissed and costs awarded to the respondent.

Citation
[2021] HKCFI 22
Parties
Claimant (appellant): AH-FAT JEAN MAX; Defendant (respondent): XIAN CORP LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 January 2021
Case Number
HCLA11/2019
Procedural Posture
Labour Tribunal Appeal / Judgment on Appeal Delivered 7 January 2021
Outcome
Appeal dismissed
Legal Topics
Commission Payment, Contract Interpretation, Variation of Contract, Rectification, Estoppel/waiver, Housing Allowance, Annual Leave, Termination, No Oral Modification Clause, Entire Agreement Clause
Source Language
EN
Employment Law Contract Law Equity Civil Procedure Commission Payment Contract Interpretation Variation of Contract Rectification +6 more

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Parties

AH-FAT JEAN MAX

Claimant (appellant)

XIAN CORP LIMITED

Defendant (respondent)

Procedural Posture

Labour Tribunal Appeal / Judgment on Appeal Delivered 7 January 2021

Legal Issues

  1. 1 Construction of Annual Commission Clause (Clause 3.4)
  2. 2 Whether interim payments constituted variation or interim commission
  3. 3 Effect of No Oral Modification Clause and doctrine of estoppel/waiver

Ratio Decidendi

The Court upheld the Presiding Officer's interpretation that the Annual Commission Clause entitled the appellant to 10% of net profit attributable to his own profit centres; the US$50,000 and US$40,000 payments were interim payments accepted by the appellant and, by the parties' conduct, precluded reliance on the No Oral Modification Clause (waiver/estoppel); the housing allowance was provided in kind and varied by conduct and lapsed on termination; the appellant failed to prove entitlement to the claimed annual leave; accordingly the appeal was dismissed and costs awarded to the respondent.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to respondent Xian Corp Limited; to be taxed if not agreed