BEIJING CHONGWEN-NEW WORLD PROPERTIES DEVELOPMENT CO LTD AND ANOTHER v. HO YUK WAH, DAVID AND ANOTHER

BEIJING CHONGWEN-NEW WORLD PROPERTIES DEVELOPMENT CO LTD AND ANOTHER v. HO YUK WAH, DAVID AND ANOTHER

On the balance of probabilities the Court found that a fee off‑setting arrangement existed as described in the 4 October 1991 letter and subsequent conduct; accordingly the Firm was entitled to render time‑based bills, to set off and appropriate purchaser monies held in trust against those bills, and judgment was entered for the Firm on the relevant accounts; NWD was not established to be liable and liability rested on the developer joint‑venture entities; the Beijing account must be taxed (special circumstances established) with an interim payment ordered; alternatively, if no FOA existed the Firm would succeed on quantum meruit and for breach of an implied whole‑project term preventing...

Citation
BEIJING CHONGWEN-NEW WORLD PROPERTIES DEVELOPMENT CO LTD AND ANOTHER v. HO YUK WAH, DAVID AND ANOTHER
Parties
Plaintiff (original Action): Sun Legend Investments Limited; 1st Defendant (original) / 1st Plaintiff (counterclaim): Ho Yuk Wah, David; 2nd Defendant (original) / 2nd Plaintiff (counterclaim): Ho Yuk Kuen, Jade; 3rd Defendant (original) / 3rd Plaintiff (counterclaim): Chan Man Ho, Brian; 4th Defendant (original) / 4th Plaintiff (counterclaim): David Y W Ho & Co (a Firm); 1st Plaintiff (hca 2915 Original Action): Beijing Chongwen-New World Properties Development Company Limited; 2nd Plaintiff (hca 2915 Original Action): China New World Electronics Limited; Defendant (by Counterclaim) / Group Entity Alleged Joined to Counterclaim: New World Developments Limited; 3rd Defendant (by Counterclaim in HCA 2915): New World Development Co Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 September 2009
Case Number
HCA2915/2002
Procedural Posture
Civil Action for Contractual Fees, Set Off, and Quantum Meruit / Judgment (court of First Instance, 18 September 2009)
Outcome
Judgment for the Firm (David Y W Ho & Co and partners) on counterclaims; developers' claims for return of trust monies dismissed; NWD not liable; Beijing bill ordered for taxation with interim payment; Dongguan judgment entered for specified sum; costs orders as set out below.
Legal Topics
Fee‑offsetting Arrangement, Retainer Terms, Set‑off of Trust Monies, Taxation of Solicitor's Bill (s 67 Lpo), Implied Term (whole Project), Credibility of Witnesses
Source Language
EN
Contract Law Restitution/quantum Meruit Legal Profession Regulation Costs and Taxation Equity/trusts (client Funds) Fee‑offsetting Arrangement Retainer Terms Set‑off of Trust Monies +3 more

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Parties

Sun Legend Investments Limited

Plaintiff (original Action)

Ho Yuk Wah, David

1st Defendant (original) / 1st Plaintiff (counterclaim)

Ho Yuk Kuen, Jade

2nd Defendant (original) / 2nd Plaintiff (counterclaim)

Chan Man Ho, Brian

3rd Defendant (original) / 3rd Plaintiff (counterclaim)

David Y W Ho & Co (a Firm)

4th Defendant (original) / 4th Plaintiff (counterclaim)

Beijing Chongwen-New World Properties Development Company Limited

1st Plaintiff (hca 2915 Original Action)

China New World Electronics Limited

2nd Plaintiff (hca 2915 Original Action)

New World Developments Limited

Defendant (by Counterclaim) / Group Entity Alleged Joined to Counterclaim

New World Development Co Limited

3rd Defendant (by Counterclaim in HCA 2915)

Procedural Posture

Civil Action for Contractual Fees, Set Off, and Quantum Meruit / Judgment (court of First Instance, 18 September 2009)

Legal Issues

  1. 1 Whether a fee off‑setting arrangement (FOA) existed between the developer(s) and the solicitor (Baker & McKenzie / David Y W Ho & Co)
  2. 2 If FOA existed, its terms and whether the solicitor was entitled to set off and appropriate purchaser monies held in trust
  3. 3 Whether NWD (parent) or the joint‑venture companies were liable for solicitors' bills

Ratio Decidendi

On the balance of probabilities the Court found that a fee off‑setting arrangement existed as described in the 4 October 1991 letter and subsequent conduct; accordingly the Firm was entitled to render time‑based bills, to set off and appropriate purchaser monies held in trust against those bills, and judgment was entered for the Firm on the relevant accounts; NWD was not established to be liable and liability rested on the developer joint‑venture entities; the Beijing account must be taxed (special circumstances established) with an interim payment ordered; alternatively, if no FOA existed the Firm would succeed on quantum meruit and for breach of an implied whole‑project term preventing...

Court Disposition

Judgment for the Firm (David Y W Ho & Co and partners) on counterclaims; developers' claims for return of trust monies dismissed; NWD not liable; Beijing bill ordered for taxation with interim payment; Dongguan judgment entered for specified sum; costs orders as set out below.

Orders

  • Claims by the developers dismissed; judgment for the Firm and its individual partners on the claims
  • Judgment for the Firm in respect of the Dongguan action for HK$4,979,111.28