IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO.1675 OF 1970
|Valiant Advertising Agency (a firm)
|Pacific Trading Co. (a firm)
Coram: D. Cons, D.J.
Date of Judgment: 21 December 1970
1. The plaintiff in this action is the sole proprietor of an advertising agency which he appears to run with the assistance of his two brothers. The defendant is a firm, also apparently to a large extent a family concern, which has for the past 4 years instructed the plaintiff to prepare and insert advertisements in various daily newspapers. Other transactions have also taken place between them. The action now is to recover almost $10,000 said to be due in respect of services rendered during last year and the first few days of this year.
2. The greater part of 8 1/2 days of trial was taken up with the proof of individual and particular items which could have been much more conveniently dealt with by way of taking an account had those responsible for advising the parties to this action applied their minds to the circumstances before the case came before trial. There were only 2 witnesses called, the plaintiff on the one hand and a Mr. Chin Yiu Chung who claims to be a partner in the defendant firm, on the other. I merely say "claims" because although he tells me that he became so two years ago, the registration with the Commissioner of Inland Revenue has remained unchanged as a sole-proprietorship of his mother since the inception of the firm in 1965, although changes were made last year in the registered particulars of another firm of which he is also a partner and which trades under precisely the same English name. These two gentlemen gave evidence in direct contradiction of each other on most, if not all occasions, when this was possible. Unhappily the case, despite the plethora of documents produced, turns ultimately upon personal credibility. Eventually after considerable deliberation and without very great confidence I have come to the conclusion that generally the evidence of the plaintiff is more reliable. I appreciate that he was not the most impressive witness and I by no means accept everything that he says as true. At times his anger led him into reckless evidence, as for example when referring to the garage that he had, so he said, personally seen at 787 Nathan Road. But Mr. Chiu was equally unsatisfactory and I formed, the opinion that his evidence, although not so patently false, was more deliberately calaculated.
3. As far as I understand this action there are three issues which require to be decided generally before any account can be worked out, and 3 further issues relating to individual transactions. The 3 general issues are whether or not the plaintiff delivered to the defendant copies of the newspapers containing the advertisements which he inserted on the defendant's behalf; whether or not the defendant is liable to pay the photo-engraving charges which were incurred with regard to certain of the advertisements; and whether the defendant should pay the reasonable charges for designing where necessary and preparing the advertisements for printing - "painting" as it has been called throughout these proceedings - or whether a flat rate had been agreed between the parties at $15 for each item.
4. The necessity of delivering newspapers in support of the plaintiff's invoices is one of the few instances where the witnesses are in agreement. But the agreement goes no further. The plaintiff contends that throughout the period in question he delivered invoices from time to time with newspapers attached; the defendant that at first they were brought in bulk on such occasions as accounts were settled but that since the middle of August last year not one has been produced. On this issue I find in favour of the plaintiff and I am satisfied that a copy of the appropriate newspaper was delivered in support of each advertisement for which he is entitled to recover. I do so principally on the more favourable view that I take of his evidence but I am confirmed in my opinion by the admission of Mr. Chin that in January this year he offered to pay extra if newspapers were then produced. This would have seem an unnecessary and unwarranted expense and out of keeping with his character, if he had not already received the copy of which he was entitled under the standing contract.
5. It may be more convenient if I turn now to one of the particular issues, namely whether the sum of $7060.32 paid by the defendant and acknowledged by the plaintiff in 3 receipts dated as to two on the 8th of August and the third on the 29th of October (Ex.13(2)(3)(7)) was payment in respect of charges included in the agreed bundles of invoices or whether it related to other fees outside this action. The plaintiff supported the latter allegation by several documents now contained in Ex.6. The figure shown in what appears to be a copy of an invoice dated the 9th of July and initialled by somebody on the 1st of August coincides with that shown on the receipt Ex.13(2). The total of the figures shown on 2 further copies dated as to two on the 20th of June and as to one on the 24th of July and all initialled on the 8th of August, less a receipt issued by the defendant dated the same date coincides with the figure shown on the receipt Ex. 13(3); the total of 2 further copies dated the 26th and 27th of October and both initialled on the 28th coincides with the figure shown on the receipt Ex.13(7). The defendant maintains that he has never received or seen the originals of the copies which make up Ex.6; that payments acknowledged by the receipts Ex.13(2) and (3) were made against settlements of accounts supported by newspapers and receipt Ex.13(7) was against an invoice which he produced and is now Ex.17. This invoice, unlike the copies of all the others produced in this action, is handwritten, obviously not in the writing of the plaintiff and denied by him to be in the writing of any person connected with his firm. It is undoubtedly upon paper belonging to his firm but he mentions that at one stage Mr. Chin's younger brother, with whom...