Lee Siu Mui v Stewart And Co (A Firm)

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 16 OF 1968

(On Appeal from O.J. Action No. 669 of 1967)

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JUDGMENT

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1. This was an appeal from the judgment of Briggs, J. dismissing the plaintiff's claim against the defendants, a firm of solicitors, for the return of a sum of $16,000.00 and allowing the defendants' counterclaim against the plaintiff for the sum of $3,273.00 being the balance of monies due and owing by the plaintiff to the defendants for professional services rendered by the defendants to the plaintiff. At the conclusion of the hearing of the appeal we dismissed it indicating that we would give our reasons in writing for so doing. We now do so.

2. The plaintiff's claim was for the return of a sum of $16,000.00. This sum was originally paid into court by the defendants, as solicitors acting for the plaintiff, in pursuance of an order made in 1963 by a judge of the Supreme Court as a condition preceding to a stay of execution of a judgment given against the plaintiff in an action brought against her for the recovery of possession of a flat occupied by her, and for arrears of rent. The facts of the case have been very fully set out in the admirably lucid judgment of the trial judge and it is unnecessary for us to repeat those facts in any great detail. They concern the relationship of the parties, and the conduct of those parties, over several years during the course of which both the civil action, to which we have referred, and a criminal prosecution, were brought against the plaintiff. Throughout this long period the defendants, together with counsel briefed for her, acted on behalf of the plaintiff both in the civil action and in the criminal prosecution.

3. The civil action, both for recovery of possession and arrears of rent, was commenced in 1962. Later in that year a settlement of the action was recorded in court on terms that the present plaintiff should give vacant possession of the flat and pay mesne profits from the date of the settlement of the action until vacant possession was granted. In March 1963 the plaintiff was convicted in the magistrate's court upon two charges of assault and criminal intimidation; the victim being her landlord. In May 1963, the plaintiff being still in possession of the flat and having failed to pay mesne profits for some considerable time, a writ of execution to recover possession of the flat was issued against her. At approximately the same time application was made to the magistrate in the criminal case in which the plaintiff had been convicted, for a review of his decision. This application proving unsuccessful, an appeal was lodged against both the conviction and the sentence, although subsequently the appeal against sentence, was abandoned. The appeal was unsuccessful.

4. In May 1963, in regard to the writ of execution taken against her, the plaintiff was granted a stay of execution of the writ for a limited period of time and conditional upon the sum of $16,000.00 being paid into court by her. She paid this sum to her solicitors, the defendants, who paid it into court. Subsequently, in June 1963 a further stay of execution was obtained on behalf of the plaintiff and it was in fact ordered that execution be stayed "until further order". Now, it is apparent throughout this period, and it was so found by the learned trial judge, that the plaintiff was most anxious to retain possession of the flat and negotiations were continuously in progress for the purpose of reaching a final settlement between the plaintiff and her ...(illegible) landlord. Indeed, an offer of settlement was put forward in writing by the landlord's solicitors the effect of which was that the plaintiff should vacate the premises by a specific date, that she should be paid back the sum of $16,000.00 then in court and receive in addition thereto a further $7,000.00. Furthermore, each party was to bear its own costs. The terms of that offer were to be open for seven days. It will be borne in mind that the plaintiff was at all times reluctant to give up possession of the flat. That offer for settlement was unsuccessful.

5. Now, subsequently to that date the Hong Kong Chinese Bank, who were Mortgagees of the property, exercised their right of foreclosure and in October 1965 entered into possession of the premises. As the learned judge pointed out this, of course, vastly affected the position as between the plaintiff and her former landlord; he no longer required possession of the premises - indeed, he was no longer entitled to possession - but he did want from the plaintiff his mesne profits which by that time were very considerably in arrears; indeed, there was evidence that such arrears amounted to $21,000.00 the landlord continued to press for a settlement and finally a settlement was reached between the parties. The terms of settlement appear to have been ...(illegible) favourable to the plaintiff. The $16,000.00 was still in court; the terms of settlement were that $11,000.00 of it should be returned to the plaintiff and the landlord was to receive $5,000.00. Each party was to pay their own costs. The terms of that settlement were made an order of the court on May 7, 1966.

6. In accordance with the terms of that settlement the defendants, acting on behalf of the plaintiff, withdrew the $11,000.00 from court and paid it into the plaintiff's client's account. It is apparent that at that time the plaintiff owed the defendants a very considerable sum of money for costs, including counsel's fees, incurred on her behalf both in the criminal appeal and in the protracted civil action between the plaintiff and her former landlord.

7. It is in respect of the settlement of the civil action upon the terms to which we have referred that the plaintiff based her claim. She contended:- (1) that she was not informed beforehand of the nature and terms...