John Baptist Wu v Tsoi Kay And Another

Judgment Date21 April 1999
Year1999
Judgement NumberFAMV3/1999
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
FAMV000003/1999 JOHN BAPTIST WU v. TSOI KAY AND ANOTHER

FAMV000003/1999

FAMV No. 3 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 3 OF 1998)

_____________________

Between:
JOHN BAPTIST WU Applicant
AND
TSOI KAY otherwise known as
TSOI CHIU SAM
1st Respondent
CHOI NING 2nd Respondent

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Litton PJ, and Mr Justice Bokhary PJ

Date of Hearing: 21 April 1999

Date of Determination: 21 April 1999

____________________________

D E T E R M I N A T I O N

____________________________

Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

2. The application for leave to appeal to the Court of Final Appeal concerns an action started by writ on 20 August 1987. The applicant was the plaintiff. He was, for many years, residing in Belgium. In April 1982 he made an oral agreement with the respondents trading under the name of Good Years whereby he, the applicant, acted as a commission agent for the sale of artificial flowers by Good Years to the applicant's customers in Europe. The applicant was to receive a commission computed as a percentage of the sales price. For this purpose Good Years kept what was called a Commission Book. The applicant kept no records whatsoever.

3. The relationship between the parties continued for some years, until 21 August 1986 when Good Years, by a written notice of that date, gave notice of termination effective as at 30 September 1986. 11 months later, the applicant commenced proceedings against the respondents.

4. The case had a tortuous history. It was finally heard by Mr Justice Stone in October 1997. The applicant was represented by counsel. The respondents were unrepresented.

5. The applicant's primary claim to relief was for an account of commission due on sales made by Good Years to customers in Europe. He faced in that regard one insurmountable difficulty: He had, on a visit to Hong Kong on 3 August 1986, "signed off" in the Commission Book the commissions payable by Good Year. In effect, therefore, the applicant's claim for commission was confined to sales after the arrangement was terminated in September 1986. Briefly, the applicant's case was that, arising from the oral agreement made in April 1982, his European clients were "his property" and accordingly any dealings at any time with any client attracted commission payment. The judge rejected this claim. At trial, there was an attempt to dress up the point by asserting that the details concerning the applicant's clients constituted "confidential information" and the use of such information by the respondents gave the applicant a separate right to relief. This too was rejected by the judge. An alternative case was put to the judge to this effect: The period of notice for termination given by the respondents, expiring on 30 September 1986, was too short; the applicant was entitled to at least one year's notice, and hence to commission to all sales to "his" customers for one year. This too was rejected by the judge.

6. At the trial, the respondents had a counterclaim against the applicant which succeeded to this extent: The applicant had borrowed from the respondents a sum of $200,000 in advance of commission. Ultimately, as computed by the judge, there was a sum of $36,160 outstanding. Judgment for this sum was awarded on the counterclaim.

7. The applicant appealed against Stone J's judgment to the Court of Appeal. Apart from an attempt to seek a re-trial of factual issues...

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