Civil Action2012

DAFNI IGAL v. CMA CGM SA

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HCA1185/2008IGAL DAFNI v. CMA CGM SA

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92472-EN-2014-04-04

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HCA 1185/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1185 OF 2008

_____________

BETWEEN
	IGAL DAFNI	Plaintiff
	and
	CMA CGM SA	Defendant
_____________
And
		HCA 1429/2012
	IN THE HIGH COURT OF THE
	HONG KONG SPECIAL ADMINISTRATIVE REGION
	COURT OF FIRST INSTANCE
	ACTION NO 1429 OF 2012
_____________
BETWEEN
	DAFNI IGAL	Plaintiff
	and
	CMA CGM SA	Defendant
_____________
	(Consolidated by order of Deputy High Court Judge Au-Yeung dated 8 August 2012)

Before: Hon Anthony Chan J in Chambers

Date of Hearing: 4 April 2014

Date of Decision: 4 April 2014

_____________

D E C I S I O N

_____________

1. This is the defendant’s application for a stay of execution pending appeal.

2. The dispute between the parties arose out of an agreement referred to as Heads of Agreement (“HOA”). In simple terms, under the HOA the plaintiff was to be employed as the managing director of a company (“CNC”) which the defendant was in the course of acquiring. The acquisition succeeded in due course. However, the employment of the plaintiff with CNC came to a premature termination and under the terms of the HOA the plaintiff was entitled to generous compensation in such event.

3. After the trial of this action, the plaintiff was awarded a sum just shy of US$2.29 million with interest and costs.

4. The trial was conducted before Recorder H Wong SC. The judgment of the learned Recorder (“Judgment”) runs to 65 pages. In addition, there is a reasons for decision (“Decision”) of 29 pages in which the learned Recorder set out his reasons for refusing an application made in the course of the trial to amend the Amended Defence and Counterclaim by raising a new illegality argument. Both the Judgment and the Decision (collectively “Judgments”) will be challenged on the defendant’s appeal (“Appeal”). However, the complaints in respect of the Judgment are confined to quantum, ie, there is no appeal against the findings of facts on the dispute over liability.

5. The guiding principles for an application of this type are trite and undisputed. This court is required to have an appreciation of the merits of the Appeal to begin with.

6. Hence, I have the unenviable task of trying to understand the Judgments sufficiently so that I can properly determine this application. However, it is impractical or undesirable for the court to go deeply into the merits and strength of the Appeal: Toeca National Resources BV v Baron Capital Ltd [2013] 5 HKLRD 178 at §6.

7. There are basically 2 grounds of appeal advanced in the submissions of Mr Kat, who appears for the defendant. Firstly, there is a challenge to the construction of the HOA by the court. There are two limbs to the challenge. It is argued that the court erred in awarding no less than US$1.13 million to the plaintiff by taking into account a profit sharing entitlement under clause 8 of the HOA. This is a matter of construing the HOA. It has to be said that the HOA is neither a well-drafted document nor a document with much detail.

8. I believe that it is arguable whether in the event of an early termination of the HOA the plaintiff should be entitled to a share of the profits the earning of which he had played no part. In clause 4 of HOA, the payment obligation on the part of the defendant for “the balance of the period remaining” was to be discharged by “installments (sic) of 3 months each”. That may support the argument that the profit sharing entitlement was not intended to be part of the compensation. Further, with great respect, the analysis of the learned Recorder on this point (Judgment, para 126) is somewhat stark. There may also be force in the submission that the court had wrongly taken into consideration the subjective intention of the plaintiff in construing the HOA.

9. The second limb to the challenge concerns the starting date of the plaintiff’s employment. This point is dealt with in para 125 of the Judgment. I can see no obvious flaw in the analysis of the learned Recorder and I do not believe that this ground of appeal is arguable.

10. I am unable to agree that the challenge to the Decision is arguable. It was by any standard a very late amendment application. I see no obvious flaw in the detailed treatment in the Decision on the legal issues. The court was plainly right to have accepted, inter alia, that the amendment, if allowed, would delay the determination of the action and that such delay constituted prejudice to the plaintiff.

11. In respect of the submission that if the judgment sum is paid to the plaintiff it may not be recoverable should the Appeal succeed, the defendant has adduced no evidence to support the contention. On the other hand, such risk cannot be entirely ignored. To try to tip the balance in its favour, the defendant has offered to pay the judgment sum and the accrued interest into court as a condition for the stay.

12. However, in light of the analysis on the merits of the Appeal, it would not be right to order a stay in excess of US$1.13 million. I believe that the correct balance to be struck in this application is to order a stay of execution in that sum on the condition that it is paid into court together with the interest accrued thereon. There should be a top-up payment by the defendant in respect of the interest element every 2 months from the date of this order. Further, the stay is subject to the undertaking by the defendant to prosecute the Appeal with all due expedition. I grant liberty to apply.

13. The defendant is to bear half of the costs of this application, and the remainder shall be in the cause of the appeal.

	(Anthony Chan)
	Judge of the Court of First Instance
	High Court

Mr Jeremy Bartlett, instructed by Boughton Peterson Yang Anderson, for the plaintiff

Mr Nigel Kat, instructed by Linklaters, for the defendant

91946-EN-2014-03-07

DAFNI IGAL v. CMA CGM SA

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HCA 1185/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1185 OF 2008

_____________

BETWEEN
	IGAL DAFNI	Plaintiff
	and
	CMA CGM SA	Defendant

_____________

And

HCA 1429/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1429 OF 2012

_____________

BETWEEN
	DAFNI IGAL	Plaintiff
and
	CMA CGM SA	Defendant

_____________

(Consolidated pursuant to the Order of
Deputy High Court Judge Au-Yeung dated 8 August 2012)

Before: Mr Recorder H Wong, SC in Court

Date of Hearing :18 March 2013

Dates of Further Written Submissions: 21 March 2013 & 28 March 2013

Date of Decision : 7 March 2014

____________________

DECISION ON COSTS

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INTRODUCTION

1. Towards the end of the trial of this action (on Day 8), the Defendant made an application to amend its Amended Defence and Counterclaim, and also to amend the Re-Amended Rejoinder (“the Amendment Application”). By a decision notified to the parties on 22 October 2012, I granted leave to the Defendant to amend various paragraphs of the Amended Defence and Counterclaim, and also paragraph 11A of the Re-Amended Rejoinder. I refused the other proposed amendments sought by the Defendant. On 16 November 2012, Reasons for Decision in respect of the Amendment Application was handed down. This Decision on Costs should be read together with the Reasons for Decision, in which I gave my reasons for determining the Amendment Application in the way I did. In this Decision on Costs, I shall adopt, unless otherwise indicated, the same abbreviations and expressions as defined and used in the Reasons for Decision.

2. It should be clear from the Reasons for Decision that the only amendments that I allowed were “the Responsive Amendments” and “the Miscellaneous Amendments”, as respectively defined in paragraph 24(a) and (c) of the Reasons for Decision, which were not contentious. The proposed amendments that I disallowed are what I called “the Illegality Amendments” in the Reasons for Decision. The Illegality Amendments were wholly rejected by the Court after hearing arguments.

3. At the time when I made my decision on the Amendment Application, the trial had not yet completed. I adjourned the argument on costs relating to the Amendment Application to be dealt with at closing. In the event, the Plaintiff made an application that the Defendant pay his costs of and occasioned by the Amendment Application on an indemnity basis.

4. Part of the proposed amendments subject of the Amendment Application related to the Counterclaim (as previously amended). It is clear that if those proposed amendments were allowed, they would have been quite inconsistent with the claims originally made in the Counterclaim. The Defendant confirmed to the Court, in the course of arguing the Amendment Application, that it would not pursue the original Counterclaim in any event, i.e. if the Court were to refuse the amendments proposed to be made to the Counterclaim (as previously amended), the Defendant would abandon the Counterclaim altogether. In the event, I refused to allow the proposed amendments to the Counterclaim. The Plaintiff sought an order that the Counterclaim (as previously amended) be formally dismissed, and the costs of the Counterclaim be paid by the Defendant on an indemnity basis.

5. I gave judgment in this action on 10 February 2014, in favour of the Plaintiff.

6. Separate written submissions have been filed by the parties to address the issues of costs mentioned above. This is my determination on those costs issues.

COSTS OF THE AMENDMENT APPLICATION

7. As the Defendant has failed in all the contentious amendments proposed to be made by it in the Amendment Application, it is not in dispute that the Defendant should be ordered to pay the costs of and occasioned by the Amendment Application. What is in dispute between the parties is whether the Defendant should pay the costs on an indemnity basis.

Principles to be applied

8. The Court has full power to determine by whom and to what extent costs are to be paid (s.52A of the High Court Ordinance). It is also not in dispute between the parties that in awarding costs the Court “may in any case in which it thinks fit to do so order or direct that the costs shall be taxed … on the indemnity basis”: see, O.62 r.28(3) of the Rules of High Court.

9. The usual order for costs is, however, on the party and party basis. That is usually the fair order to make unless there is some feature in the litigation such as to make it fair for the losing party to indemnify the other party’s costs, it is normally fair that he should only bear costs on the party and party basis.

10. But the Court’s discretion on costs is broad, and it has been repeatedly emphasized that such discretion should not be unduly fettered. The Court of Final Appeal, in the case of Town Planning Board v. Society for Protection of the Harbour Ltd (No.2) (2004) 7 HKCFAR 114, was at pains to re-iterate this. Citing the cases of Macmillan Inc v Bishopgate Investment Trust Plc (unrep., 10 December 1993, per Millett J), Sung Foo Kee Ltd v Pak Lik Co. ([1996] 3 HKC 570 at pp575E-576F. per Godfrey JA), Choy Yee Chun v Bond Star Development Ltd ([1997] HKLRD 1327 at pp.1334G-1335I, per Stock J), the Court of Final Appeal held at para.17 of its judgment on costs:

“In these and other cases, courts have emphasised the undesirability of attempting to define the circumstances in which orders for indemnity costs are to be made. It has been said that:

… the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.”

11. Accordingly, the Court’s discretion to order costs on an indemnity basis is not fettered beyond the requirement of appropriateness. The epithet of “appropriate” connotes fairness. It is difficult to imagine how a costs order (on whatever basis) can be appropriate if it not fair having regard to the circumstances. Subject to this, the Court’s discretion is unfettered.

12. In particular, the Court’s discretion to order costs on an indemnity basis is not confined only to cases where the Court finds the losing party to be guilty of some deception or underhand conduct, or that the case or application has been brought with some ulterior motive or for an improper purpose (see para 16 of the Society for Protection of the Harbour case (supra)). The Court’s discretion to order indemnity costs is not confined to cases where the Court finds “special circumstances”, such as those mentioned above. If fairness in the circumstances of the case requires the making of such an order, then in my judgment, it is “appropriate” for the Court to make it.

13. What is appropriate or fair must depend on the circumstances of each case. Relevant circumstances include “all matters relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further”: see para. 18 of the Court of Final Appeal judgment in the Society for Protection of the Harbour case (supra).

14. As pointed out above, it is usually fair to make costs orders on the party and party basis. But the circumstances of the case, which may include consideration of the attributes of the parties (see para. 18 of the Society for Protection of the Harbour case (supra)), their conduct, and the nature of the proceedings itself, may make it fair or appropriate to order costs on some other basis. For example, in proceedings involving arbitration awards, a losing party who has failed in his application to set aside or resist enforcement of an arbitration award would generally be ordered to pay costs on an indemnity basis unless he can show special circumstances why such an order should not be made: Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in liq) No.2 [2012] 4 HKLRD 569, at 573-574 (paras. 14-17, per Tang V-P, as he then was). The reason given for this is that the nature of such proceedings is such that it is generally fair to order the losing party to pay costs on an indemnity basis: see para 15 of the judgment, where Tang V-P expressed agreement with the observations of Reyes J (as he then was) in A v R (Arbitration: Enforcement) [2009] 3 HKLRD 389, whereby the learned judge remarked that “[a]pplications by a party to appeal against or set aside an award or for an Order refusing enforcement should be exceptional events. Where a party unsuccessfully makes such application, he should in principle expect to have to pay costs on a higher basis. This is because a party seeking to enforce an award should not have had to contend with such type of challenge.”

15. In 2008, O.62 r.5 of the Rules of High Court was amended. By r.5(1), the Court is required, in exercising its discretion as to costs, to take into account, to such extent (if any) as may be appropriate in the circumstances, inter alia, the underlying objectives set out in O.1A, rule 1 (para (aa)), the conduct of all the parties (para. (e)), and also “whether a party has succeeded on part of his case, even if he has not been wholly successful” (para.(f)). O.62 r.5(2), also introduced by the 2008 amendments, further provides that for the purpose of paragraph (1)(e), the conduct of the parties “includes” various matters set out therein.

16. The Society for Protection of the Harbour case was decided before the 2008 amendments, while the Pacific China Holdings case was decided after the 2008 amendments.

17. The amended O.62 r.5 now requires the Court to take into account various matters set out therein, including, inter alia, the underlying objectives set out in O.1A, r.1. However, the rule does not take away the Court’s otherwise unfettered discretion as to costs, as the Court is only required to take into account the matters “to such extent, if any, as may be appropriate in the circumstances”. The Court has full discretion to attach any weight – and indeed no weight at all – to any of those matters as it may consider appropriate. The matters set out in O.62 r.5(1) may be relevant to different extent in different cases, and it is for the Court to take account of them to any such extent as it considers appropriate in the circumstances. Moreover, O.62 r.5(2) is inclusive in nature: they are not purported to be exhaustive. Even without the 2008 amendments, the matters set out in r.5(2) would have been taken into account by the Court, to the extent as they may be relevant, in considering the conduct of the parties. This would have been the case even before the 2008 amendments.

18. The Court has an unfettered discretion as to costs. That was the position before the 2008 amendments, and continues to be the position now. The overriding requirement is simply to make an appropriate order that is fair in all the circumstances of the case. In this connection, I note that one of the express underlying objectives set out in O1A, r.1, for which the Court is required to take into account under O.62 r.5 (1)(aa), is to “ensure the fairness between the parties”: see, O.1A, r.1(d).

19. As pointed out above, the unfettered discretion of the Court is such that its discretion to order costs on an indemnity basis is not confined to cases of “special circumstances” (in the sense of circumstances that indicate bad faith, improper or oppressive conduct, underhandedness, or ulterior motive on the part of the losing party). An order for indemnity costs requires some “special or unusual feature” (see para. 16 of the Society for Protection of the Habour case) only in the sense that it is usually fair to order costs on a party and party basis in the absence of anything that makes it appropriate or fair to require the losing party to effectively “indemnify” the costs of the winning party except those which are of unreasonable amount or have been incurred unreasonably (c.f. O.62 r.28(4A)): see, paras. 13-15 of the Society for Protection of the Habour case.

20. That “special circumstances” are not required to be established before an order for indemnity costs may be made is best illustrated by the Pacific China Holdings case referred to above. There the Court of Appeal recognised that there were no “special circumstances” (in the sense mentioned above) to require the making of an order for indemnity costs, but justified the making of the same in that case on the basis that fairness required that a party who unsuccessfully sought to set aside or resist enforcement of an arbitration award should pay the costs of the other party on an indemnity basis. As Tang V-P remarked in para. 16 of his judgment:

“… It might be regarded as wrong in principle, if notwithstanding Civil Justice Reform and its implications, indemnity costs could only be awarded when special circumstances are established. However, I believe indemnity costs may be awarded under O.62 r.5(1) in an unsuccessful application to set aside an arbitral award or to resist enforcement to “ensure fairness between the parties”. Unless such practice is wrong in principle, we cannot interfere.”

21. Perhaps I may add this. The underlying objectives set out in Order 1A. r.1 embody, in express terms, the spirit of the Civil Justice Reform. It is to be noted that by virtue of Order 1A r.3, “the parties to any proceedings and their legal representatives shall assist the court to further the underlying objectives of these rules”. Hence it is not just the case that the Court is required to take into account the underlying objectives when exercising its discretion on costs, there is a positive duty imposed on the parties to assist the Court in the furtherance of the said underlying objectives.

Exercise of discretion

22. Mr Bartlett on behalf of the Plaintiff accused the Defendant for acting in bad faith and in an underhanded manner in making the Amendment Application. He argued that by making the application at such a late stage when all the grounds relied upon by the Defendant were known to the Defendant “from the outset of the dispute”, the Defendant had deliberately “kept the new point in hiding, despite its magnitude and potentially dire consequences, keeping its options open”. He accused the Defendant of “cynicism and opportunism”, and that the Amendment Application was “designed to derail the trial”.

23. I am not prepared to go as far as Mr Bartlett, despite my taking a dim view of the Amendment Application. I do not think that despite the extraordinary lateness of the application, and the absence of any satisfactory explanation for the delay, there is evidence or sufficient evidence to show bad faith, oppression, or some deliberate design to derail the trial on the part of the Defendant. The decision to make the Amendment Application might have been wrongly made by the Defendant or its legal representatives, but it is quite a different thing to say that the decision was made in bad faith. I reject Mr Bartlett’s submissions in this regard.

24. However, as I held above, it is not necessary, in order for this Court to make an order for indemnity costs, to hold that the Defendant was guilty of any bad faith or other deliberately oppressive or improper conduct. The overriding requirement is what is appropriate or fair in the circumstances.

25. One important consideration of fairness is that a party such as the Plaintiff in this case has a legitimate expectation that when the action is set down for trial, it would be tried on the issues as crystallised and pleaded by the parties, and that all interlocutory applications required to be made have already been completed. It is of course a common experience of lawyers that we do not live in a perfect world, that sometimes late applications may have to be made, and indeed may be justified even if made at a late stage. Litigation is not a business that can be entirely freed from surprises, despite all the safeguards by the rules and even the good intention of the parties. But the Amendment Application in the present case, made at such time and of such nature, is extraordinary by any measure. The Amendment Application was made only after all factual evidence had already finished; and by the Illegality Amendments the Defendant sought to allege that the very contract (namely the HOA) upon which the Plaintiff sued - the validity of which the Defendant had all along affirmed (indeed the Defendant found its original Counterclaim upon the same contract) – was illegal and unenforceable. The Illegality Amendment, if allowed, would have wholly changed the colours of the Defence, and would have entailed the re-pleading by the parties of their respective case, the introduction of new evidence, the filing of new witness statements etc. in order that the new issue of illegality may be properly investigated at trial. Of all the “legitimate” surprises that even an experienced litigant may come to expect in litigations, an application of such nature made at such late stage may still properly be described as a “bolt from the blue”. Such bolts from the blue are not only contrary to the letter and spirit of the Civil Justice Rules, they (adopting the submission of Mr Bartlett) “make a mockery of the processes such as information checklist, case management conferences and pre-trial review which are designed to identify and resolve last-minute procedural matters so that the trial can proceed efficiently”. In my judgment the Plaintiff was entitled to a legitimate expectation that there would not be such bolts from the blue at trial, and if he was successful in deflecting the bolt it is only fair that he should be able to recover his costs on a higher basis.

26. Mr Kat, Counsel for the Defendant, accepted that all the facts on which the Amendment Application was based were not new. They are matters which were well known to the Defendant from the time it executed the HOA (in 2006) and hence with the Defendant’s knowledge when this action was commenced in 2008. Mr Kat, however, argued that it was only after the Court had raised (for the first time on Day 1 of the trial) the question with Counsel whether the CSA Agreement was a sham (and was never intended by the parties to take effect on its terms), that the Defendant was alerted to the possible legal consequence of illegality. He pointed to the remarks by the Court that the point whether the CSA Agreement was a sham “might have some important legal consequences”. In particular, Mr Kat pointed to the following exchange between the Court and Mr Bartlett on Day 1 of the trial:

“Court: So nothing further was done by Dafni in order to provide the services purportedly required to be rendered under this consultancy services agreement?

Mr Bartlett: I believe that is an accurate statement, my lord, yes.

Court: If that is so, that goes a long way to showing that this consultancy agreement is nothing but a sham, it’s just a piece of paper, and if that is a correct view then it might have some impact on some of the other issues,like unjust enrichment, reflective loss – I don’t know. There might well be consequences affecting some of the issues here. I’m just putting this up at this stage for you to think about.” (underline added)

27. Mr Kat argued that notwithstanding that the Defendant has never pleaded any illegality, the Court raised the question whether the CSA agreement may have important legal consequences on the issues. Mr Kat also pointed out that in applying for the amendments, “counsel told the Court that the point was reluctantly taken and with some embarrassment, both to counsel and to [the Defendant], for having been overlooked and being brought so late”.

28. Inasmuch as Mr Kat honestly and gallantly accepted that the Amendment Application was made with some reluctance and embarrassment on his and his client’s part, I think Mr Kat has served his client’s interest well, for I would have been more inclined to accept Mr Barlett’s submissions on bad faith if it had been otherwise. However, if and insofar as Mr Kat seemed to suggest that it was only because the Court had raised query with Counsel on whether the CSA Agreement was a sham, that the Defendant was triggered into making the Amendment Application on Day 8 of the Trial, I would firmly reject that suggestion.

29. The query that the Court raised related to the CSA Agreement, not the HOA, and no question of illegality was ever raised by the Court. As I pointed out in the Reasons for Decision, the Plaintiff was not even a party to the CSA Agreement. The query was raised in the context of the issues as then pleaded by the parties, which included issues of unjust enrichment. Both the issues of unjust enrichment and reflective loss were in fact canvassed in Mr Kat’s Opening (see para 86 thereof), although both issues were subsequently abandoned by the Defendant when it decided not to pursue its original Counterclaim. When the Court asked counsel on Day 1 to consider the legal consequences that the CSA Agreement (being possibly a sham) might have on the issues of unjust enrichment and reflective loss, it was plainly in the context of the pleaded issues, which were still alive at that time. The query can hardly be taken as an invitation to Mr Kat or his client to raise an issue of illegality on the HOA, nor is it an acceptable explanation for the making of the Amendment Application after all the factual evidence had finished on Day 8.

30. In the Reasons for Decision, I have held that the factors that weigh against the exercise of my discretion in favour of the Amendment Application are overwhelming. I have set out those factors in para. 55 of the Reasons for Decision. In my judgment, these factors, when considered against the legitimate expectation that I mentioned above, clearly demonstrate how extraordinary and unwarranted this Amended Application was. An indemnity costs order should not be made merely because a party has lost his application. However, in the particular circumstances of the present case, I have no hesitation in holding that it is appropriate and fair to order costs of and occasioned by the Amendment Application be paid by the Defendant to the Plaintiff on an indemnity basis. And I so order.

COSTS OF THE DISMISSSAL OF THE COUNTERCLAIM

31. I formally order the dismissal of the Counterclaim (as previously amended).

32. As to the costs of the Counterclaim (including the costs of its dismissal), I accept the submission of Mr Bartlett that the present situation “is little different from a plaintiff forcing a defendant to endure a claim for several years of litigation only to throw its hands up at trial and abandon the claim with consequent waste of money, time and resources of the parties and of the Court.” Although, as a result of the abandonment of the Counterclaim, there is no final determination by the Court of its merits, the fact of its abandonment would justify the inference that the Defendant must have recognized that the Counterclaim was either bound to fail, or was not worth its while to pursue. In either case, the question arises as to why the Counterclaim was made in the first place and maintained until almost the end of the trial. No explanation has been proferred by the Defendant in this regard.

33. In these circumstances, I consider that it is appropriate and fair for the Defendant to pay for the costs of the Counterclaim (including the costs of its dismissal) on an indemnity basis, and I so order.

34. I make an order nisi that the costs of the present application (i.e. for costs of the Amendment Application and the Counterclaim be paid by the Defendant to the Plaintiff on an indemnity basis) be paid by the Defendant to the Plaintiff, to be taxed on the party and party basis, if not agreed.

	(H Wong, SC)
	Recorder of the Court of First Instance High Court

Mr Jeremy Bartlett, instructed by Boughton Peterson Yang Anderson, for the Plaintiff

Mr Nigel Kat, instructed by Herbert Smith Freehills, for the Defendant

91453-EN-2014-02-10

DAFNI IGAL v. CMA CGM SA

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HCA 1185/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1185 OF 2008

_____________

BETWEEN
	IGAL DAFNI	Plaintiff
	and
	CMA CGM SA	Defendant

_____________

And

HCA 1429/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1429 OF 2012

_____________

BETWEEN
	DAFNI IGAL	Plaintiff
	and
	CMA CGM SA	Defendant

_____________

(Consolidated pursuant to the Order of
Deputy High Court Judge Au-Yeung dated 8 August 2012)

Before: Mr Recorder H Wong, SC in Court

Date of Hearing :	3 -7 September 2012, 10 - 12 September 2012, 21 September 2012, 25 September 2012, 18 March 2013
Date of Judgment :	10 February 2014

_____________

JUDGMENT

_____________

INTRODUCTION

1. In HCA 1185/2008, the Plaintiff claims against the Defendant for breach of contract and for payment of his entitlements under a Heads of Agreement (“HOA”) signed between them on 21 November 2006, as referred to below. Out of an abundance of caution, the Plaintiff has also brought a claim in the labour tribunal, which claim is based on the identical facts in this action. The issues in HCA 1185/2008 and the labour tribunal claim are the same. The labour tribunal claim has been transferred to the High Court (HCA1429/2012) and has been consolidated with HCA 1185/2008. In this Judgment I shall refer to the consolidated action simply as “this Action”.

2. For the sake of completeness, this Judgment should be read together with the Reasons for Decision dated 16 November 2012 (“Reasons for Decision”) given by me in respect of an application by the Defendant to amend its Amended Defence and Counterclaim and the Re-Amended Rejoinder

3. In the Reasons for Decision mentioned above, I have summarized some of the background facts in this Action. Inasmuch as those background facts are also relevant to this Judgment, the same are repeated in the paragraphs below.

FACTUAL BACKGROUND

4. The Plaintiff is a Singaporean citizen and was born in Israel. The Defendant (“Defendant” or “CMA CGM”) is incorporated in France and is a very large international shipping company.

5. The Plaintiff’s working career has been spent in the shipping industry. He had previously worked in another shipping company called Zim Integrated Shipping Service Limited (“Zim”), which I understand is an Israeli national shipping line, and also its Hong Kong based subsidiary, a company called Gold Star Line Limited (“Gold Star”). The Plaintiff resigned from Zim in about May 2006.

6. After resigning from Zim the Plaintiff entered into negotiation with one Mr Farid Salem (“Salem”) of the Defendant, who was interested in engaging the Plaintiff to work for one Cheng Lie Navigation Co. Ltd. (“CNC”), a Taiwanese shipping company which the Defendant was planning to acquire at the time. At all material times to this Action, Salem was the Group Executive Officer of the Defendant, and the “second in command” after Mr Jacques Saade (“Saade”), the founder, Chairman and CEO of the Defendant.

7. On 21 November 2006, the Plaintiff and the Defendant assigned the HOA, which provided for the Defendant to procure the employment of the Plaintiff by CNC (codenamed “Cristo” in the HOA) as its Managing Director. Salem signed the HOA on behalf of the Defendant. The HOA provided for the contract period to be “3 years with 6 months trial period for each party”, and that the employment was to commence “[a]s from the day CMA CGM make final irrevocable bid to Cristo shareholders”. I set out in full clauses 4, 5, 8, 10 and 13 of the HOA, which are relevant to the issues considered in this Judgment:

“4. Cancellation Indemnity
If after the 6 months trial period, CMA CGM or Cristo terminates the contract for any reason whatsoever, CMA CGM will pay the balance of the period remaining in installments of 3 months each, except if the termination is for reasons of willful misconduct or fraud on behalf of [the Plaintiff], or two consecutive years of losses.
Should [the Plaintiff] decide to leave before the end of the contract period, there will be non competition clause equal to six months.
5. Remuneration
350,000 USD gross per year payable over 14 months in equal installments.
Part of this amount will be paid in Taipei and part will be paid to [the Plaintiff] in a foreign account, by Cristo.
8. Profit Sharing
2.5% of net profit after tax for each fiscal year of Cristo, capped at USD1 million per year. If listing, the parties may consider to substitute the profit sharing scheme by a stock option at terms to be agreed later.
10. Temporary
The parties agree that [the Plaintiff] will dedicate his time as from November 21, 2006 to CMA CGM, in CMA CGM office in Hong Kong, for preparation of the bid to acquire Cristo or any other business CMA CGM may ask.
[The Plaintiff] will be remunerated a lump sum amount of USD30,000 payable for each month.
13.Subject to employment contract being drawn, agreed and signed.”

8. Pursuant to Clause 10 of the HOA, the Plaintiff was in fact temporarily employed to work in the Defendant’s offices in Hong Kong and an employment contract dated 21 November 2006 (“Temporary Employment Contract”) was entered into between CGM & ANL (Hong Kong) Shipping Agencies Ltd (“CMA Hong Kong”) and the Plaintiff. During the time when the Plaintiff was employed by CMA Hong Kong, the Plaintiff acted as its “Special Project Manager” and received payment of a monthly salary from CMA Hong Kong in the sum of HK$77,800 (US$10,000). That amount, however, was only part of the Plaintiff’s total monthly remuneration of US$30,000 as evidenced by a memorandum dated 7 December 2006 of the Defendant, where it was provided that the balance of US$20,000 per month was to be paid by the Defendant to the Plaintiff by direct transfer to the Plaintiff’s bank account in Singapore. That memorandum was signed by the Salem on behalf of the Defendant.

9. In regard to the payment of US$20,000 per month made by the Defendant, the Defendant had signed a consultancy agreement with one Charter Shipping Agencies (S) PTE Ltd (“CSA”) dated 21 November 2006 (“CSA Consultancy Agreement”), under which CSA would purportedly provide certain services to the Defendant in consideration of a monthly payment of US$20,000. Although it is plain from the evidence that no such services were in fact provided by CSA to the Defendant, CSA would invoice the Defendant every month for the sum of US$20,000. The Defendant, however, never in fact paid CSA on its invoices. The only US$20,000 paid by the Defendant every month was not paid to CSA, but to the Plaintiff (by direct transfer of the sum to his Singapore bank account).

10. The Plaintiff’s temporary employment with CMA Hong Kong lasted until 30 April 2007 when the Temporary Employment Contract was terminated, following the successful acquisition by the Defendant of CNC in March 2007. An employment contract dated 12 April 2007 (“CNC Employment Contract”) was entered into between the Plaintiff and CNC. The Plaintiff was employed as the Managing Director and CEO of CNC. The CNC Employment Contract provides for very broad duties for the Plaintiff, as follows:

“(1) To execute [CNC’s] business plan and policy, and carry out all of the conclusions of Board of Director and Shareholders.
(2) According to the above, to plan, organize, lead, employ, and manage all affairs related to [CNC’s] business, operation, logistics and administration and overseas agencies.
(3) To achieve the annual budget and profit goals of [CNC], to make decisions and to solve problems;
(4) To upgrade [CNC].
(5) Any others (sic.) business that is for [CNC’s] benefits.”

11. The CNC Employment Contract provided, inter alia, that the agreement “shall commence on April 12, 2007 and shall have a term of three (3) years duration” and that the “salary to be paid the Employee shall be US$10,000 per month. Taiwan Tax shall be paid by the Employee”.

12. In accordance with the terms of the CNC Employment Contract, CNC paid a monthly salary of US$10,000 to the Plaintiff in Taiwan. The Plaintiff continued to receive payment of US$20,000 from the Defendant through direct transfer to his bank account in Singapore.

13. In December 2007 Zim commenced proceedings in Singapore against the Plaintiff and others making some serious allegations against the Plaintiff for breach of fiduciary duties (“the Zim litigation”). The Zim litigation was ultimately resolved in favour of the Plaintiff by a judgment of the Singapore High Court, which dismissed all the claims of Zim. But that was more than 2 years later as the Singapore judgment was only delivered in January 2010.

14. In the meantime, the Plaintiff’s employment with CNC was brought to a premature end in March 2008. The circumstances of the termination of the Plaintiff’s employment are very much in dispute. It is the Defendant’s case that the Plaintiff voluntarily resigned from his employment and that he tendered his resignation - initially orally - to the Chairman of the Defendant, Saade, at a meeting held in the midnight of 12 March 2008 at a room in the Evergreen Hotel Taipei (“the Meeting”). On the other hand, it is the Plaintiff’s case at that Meeting, it was Saade who informed the Plaintiff that, in the light of the adverse publicity generated by the Zim litigation and the embarrassment it caused to the Defendant, the Plaintiff’s employment with CNC would have to be terminated.Saade also indicated that, for the benefit of all, the termination could be dressed up as a resignation by the Plaintiff, but the Plaintiff would be paid in full all his contractual entitlements under the HOA. It is the Plaintiff’s case that it was upon such assurance by Saade that he agreed to sign various resignation letters on 14 March 2008. The resignation letters were prepared by a Mr Jean-Marie Mazars (“Mazars”) for the Plaintiff to sign. Mr Mazars was CNC’s Treasury Finance and Accounting Manager, and formerly the Finance and Administration Director of the Defendant.

15. I pause here to add that according to the evidence at trial, the Meeting was attended by Saade, the Plaintiff, Salem, a Mr Nicolas Sartini (“Sartini”, who was the Senior Vice President of the Defendant in charge of Asian European Trades), a Mr Frank Lu (“Frank Lu” who was the Chairman of CNC from June 2007 to mid-2008), and also an unidentified lady.

16. The termination of the Plaintiff’s employment and directorship was to take immediate effect of the date of the resignation letters, i.e. 14 March 2008. Those resignation letters purported to state that the Plaintiff was resigning for “personal reasons”, and that the Plaintiff confirmed that he had “no claim against the Company in respect of remuneration, fees or otherwise, compensation for loss of office or any accounts whatsoever”.

17. Despite what was purportedly stated in the resignation letters, there are contemporaneous documents which appear to tell another story. On the part of the Defendant, there was an email dated 13 March 2008 by Salem to one Thierry Billion (“Billion”, who was the Director and Senior Vice President of Human Resources of the Defendant) and Georges Sioufi (“Sioufi”, the Secretary General and Senior Vice President of the Defendant). There is also evidence that Soufi was also the legal counsel of the Defendant instructing them as follows:

“Mr Igal Dafni is no longer occupying his position at CNC. He is leaving the Group for good, with effect 14/03/2008.
Please do attend the termination of his servicesas per the employment contract. Thierry Billion has in his hands, in a rapid manner so that final settlement is made within 10 days.” (underline added for emphasis)
The email was copied to Sartini and the Plaintiff. In evidence given during the trial of this Action, Salem told me that when he referred to “the employment contract” in the said email, he was referring to the HOA.

18. On the part of the Plaintiff, he also wrote an email on 14 March 2008 to Billion and Sioufi (copied to Salem), in which he referred to Salem’s email and stated that there were 2 major issues to be finalised, being his entitlement to profit-sharing at 2.5% of net profit after tax, and what is described as the “Golden Parachute”, namely his entitlement to be paid his salaries for the remainder of his 3 years contract period if his employment was terminated after the 6 months trial period. In his email, the Plaintiff actually quantified the amounts of profits that he claimed he was entitled to share, and also the amount of the Golden Parachute that he claimed he was entitled.

19. By an email to the Plaintiff dated 31 March 2008, Sioufi replied to the Plaintiff stating that given the amount the Plaintiff was claiming, the Defendant could not give him “rapidly an answer without considering in details the grounds of each and every item”. Sioufi then continued:

“This being said, I note from the documents we received that you have resigned for your CNC’s offices and that you have confirmed ‘that you have no claim against CNC in respect of remuneration, fees or otherwise, compensation for loss of office or on any accounts whatsoever’.” (italics in original)

20. The Plaintiff replied to Sioufi’s email immediately on the next day. He informed Sioufi as follows:

“plse be advised that I have not resigned, but was force to resign by mr saade, this after his assurance that I will receive all my entitlement as per contract.” (bold in original)

21. On 20 March 2008, the Defendant terminated the CSA Consultancy Agreement.

22. Plaintiff’s litigation with Zim dragged on for some 3 years, with the Singapore Court ruling in favour of the Plaintiff and dismissing Zim’s claim. In December 2010, the Singapore Court of Appeal affirmed the decision and dismissed Zim’s appeal.

23. In this action the Plaintiff claims against the Defendant for his alleged entitlements under the HOA, including his unpaid remuneration for the period from 1 March to 13 March 2008, and the Cancellation Indemnity provided in Clause 4 of the HOA. The amounts claimed are set out in a Revised Quantum Schedule submitted by the Plaintiff, a copy of which is annexed to this Judgment.

DEFENDANT’S CASE

24. As pointed out above, it is the Defendant’s case that the Plaintiff had truly resigned on his own volition. As Clause 4 only provides for payment of the “balance of the period remaining” only in the event of the Defendant terminating the contract, the Plaintiff is not entitled to claim under the “Cancellation Indemnity” provided in Clause 4 when it was he who “decide[d] to leave before the end of the contract period”.

25. It is the Defendant’s alternative case that even if it was the Defendant which terminated the HOA, the termination was “for reasons of wilful misconduct” of the Plaintiff, and accordingly the Defendant is not liable to pay the Plaintiff the Cancellation Indemnity provided in Clause 4. The bases for alleging wilful misconduct on the part of the Plaintiff are as follows:

(a) It is alleged that the Plaintiff owed fiduciary duties to the Defendant and CNC.

(b) The Plaintiff had acted in breach of his fiduciary duties. It is alleged that the Plaintiff had acted in breach of instructions of the Defendant regarding the conduct of the Defendant’s and CNC’s agency business (including instructions regarding the adoption of the Defendant’s standard forms, migration of agents etc.).

(c) The Plaintiff had wrongfully, in breach of his fiduciary duties, appointed Star Navigation Sdn Bhn (“Star Navigation”) to sell CNC’s services as a principal, thus enabling Star Navigation to make a “secret profit”. Star Navigation was a Malaysian company that belonged to the Starship group of companies, which was a group comprising of companies in Malaysia, Singapore, Thailand, Indonesia, China, Vietnam and India. The Starship group carried on business in, inter alia, shipping agencies business, freight forwarding and also “NVOCC” (short form for a “Non Vessel Operating Common Carrier”). It is further alleged that the Plaintiff had acted in breach of fiduciary duties by failing to investigate, monitor or report the prices charged by Star Navigation for CNC’s services.

(d) Mr Benedict Ng (“Ng”) was a director and shareholder of Star Navigation and Mr Derek Ong (“Ong”) was a former director and general manager of Star Navigation. It is alleged that the Plaintiff had “connection” with Ng and Ong, which he had failed to disclose to the Defendant in breach of his fiduciary duties.

(e) In further breach of his fiduciary duties, the Plaintiff had failed to disclose the breaches to the Defendant or to CNC’s board of directors.

26. It is the Defendant’s case that it has only acquired knowledge of the information or facts that allegedly revealed that the Plaintiff had acted in breach of his fiduciary duties after the employment of the Plaintiff was terminated.

27. Relying on Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch.D. 339, the Defendant submits that “when an employee brings an action against his employer alleging that he has been wrongfully dismissed, the employer can rely on information acquiredafter the dismissal when seeking to justify the dismissal”. Mr Nigel Kat, acting for the Defendant, submits that Boston Deep Sea Fishing is authority for the application, in an employment context, of the well-established principle that a party who has given a wrong or inadequate reason (or no reason at all) for refusing to perform his contractual obligations, may nonetheless be entitled to justify his refusal “if there were at the time facts in existence which would have provided a good reason even he did not know of them at the time of his refusal”: Chitty on Contracts (30^th edition) Vol. 1 at para. 24-014.

28. The Defendant also disputes quantum in the event that the Court holds against it on liability. In this regard, the Defendant raises four issues:

(1) It is submitted by the Defendant that by Clause 10 of the HOA, the Plaintiff was to “dedicate his time as from 21 November 2006 to CMA CGM office in Hong Kong…”. Accordingly, the Defendant submits that the obligations between the Plaintiff and the Defendant began on that date and were to terminate 3 years from that date. The “period remaining” for which “the balance” is to be paid under Clause 9 would accordingly expire on 20 November 2009 (and not 11 April 2010, being 3 years counting from 12 April 2007, the date when the Plaintiff commenced his employment with CNC).

(2) The Defendant further submits that the profit-sharing entitlement under Clause 8 of the HOA is a free-standing entitlement, and is not covered by the Cancellation Indemnity provided in Clause 4. Even if that is not so, it is further contended that Clause 8 is intended to give the Plaintiff a share in the profits only when he has served past a year end, but the Plaintiff had not completed an entire year and is therefore not entitled to any profit-sharing.

(3) The Defendant further contends that as the HOA is a contract between the Plaintiff and the Defendant, the parties must have contemplated that any share of the net profit after tax of CNC would be of the net profit after tax that the Defendant would recognise. The significance of this is that at the group level of the Defendant, the Defendant adopted the International Financial Reporting Standard (“IFRS”) in the recognition of CNC’s reported net profits, which was different from reporting standard adopted by CNC’s Taiwan auditors, namely, the Generally Accepted Accounting Principles (“Taiwan GAAP”). The net profits after tax reported by following IFRS were less than those reported by following the Taiwan GAAP. The Defendant’s case is that it is the net profits after tax recognised by the Defendant, following the reporting standard adopted by the CMA CGM group (i.e. IFRS), that should be used in the computation of the Plaintiff’s profit-sharing entitlement (which the Defendant denies).

(4) It is further contended by the Defendant that the Plaintiff has failed to mitigate his loss.

ISSUES

29. The principal issues in this case are as follows:

(1) Did the Plaintiff resign or was his employment terminated? Associated with this issue is whether the Plaintiff “resigned” in reliance on the Defendant’s assurances that his “resignation” would be with the full entitlements under the HOA.

(2) If the Plaintiff’s employment was in fact terminated, whether such termination could be retrospectively justified on ground of “wilful misconduct” on the part of the Plaintiff such that the Defendant is not liable to pay to the Plaintiff the Cancellation Indemnity provided under Clause 4 of the HOA. Associated with this issue are the following issues:

(a)   Did the Plaintiff owe fiduciary duties to the Defendant as alleged?
(b)   If so, whether those duties were breached by the Plaintiff in the circumstances alleged by the Defendant?
(c)   If so, whether the breach of duties amounted to “wilful misconduct” within the meaning of Clause 4 of the HOA?
(d)   If so, whether the Defendant is entitled to rely on such breach of duties to retrospectively justify the termination of the Plaintiff’s employment?

(3) Quantum issues being (a) whether the period of 3 years should be counted from 21 November 2006 or 12 April 2007; (b) whether the Cancellation Indemnity includes the entitlement to profits-sharing provided under Clause 8 of the HOA; (c) how the net profits after tax are to be recognised for the purpose of computing the Plaintiff’s profits-sharing entitlement; and (d) whether the Plaintiff was under any duty to mitigate his loss, and if so, whether he had failed to do so.

30. I would add, for the sake of completeness, that the Defendant had originally included a Counterclaim against the Plaintiff, seeking, inter alia, a right to claw back remuneration paid for the Plaintiff’s employment with CNC. The Counterclaim was however abandoned by the Defendant in the course of the trial, and no issue according arises from the Counterclaim which is not pursued.

WITNESSES

31. The Plaintiff gave evidence at trial and called no other factual witness. The Defendant called Salem, Mazars, a Mr Danny Wang I-Hsiang (“Danny Wang”, who was the former Chief Financial Officer and director of CNC), and a Mr Walid Khairallah (“Khairallah”, a senior cost controller of Merit Corporation, a company incorporated in Beruit and the controlling shareholder of the Defendant). Saade and Sartini, who had provided witness statements in this Action, were not eventually called by the Plaintiff.

32. I will comment on the testimony of the witnesses, where relevant, when I discuss the issues below. As a general comment, I would point out that I have found the Plaintiff to be an impressive witness. He has come across as an honest witness – smart but honest – and there is no doubt in my mind that he was speaking the truth when he gave his testimony. He is no doubt a man of strong character, tenacious and determined, and very experienced in the shipping industry. I have closely observed the witnesses’ demeanour in Court: the Plaintiff appears to me to be a fair person, and very straightforward in his evidence. His response to questions was quick and to the point, and he did not evade questions. On the other hand, I do not hold the same favourable view of the Defendant’s witnesses. In particular, the Defendant’s main witnesses, Salem and Mazars, appear to me to be evasive witnesses, and I have reservations as to the reliability of their evidence. I have no hesitation in preferring the Plaintiff’s evidence to those of the Defendant’s witnesses where their evidence conflict.

33. Both parties have called experts (Mr Lim Siew Cheng on behalf of the Plaintiff and Mr Alfred Lo on behalf of the Defendant) who gave evidence on the types and characteristics of the various forms of shipping agencies. The experts have helpfully produced a joint report. The differences between the experts are small, and I do not find those differences to have any material impact on my judgment in this case.

DISCUSSION OF THE ISSUES

Did the Plaintiff truly resign or was his employment terminated?

34. Resolution of this issue depends largely on the oral evidence regarding what happened at the Meeting held at midnight of 12 March 2008, although my conclusion on the issue is fortified by what I consider to be contemporaneous documents, particularly the email of Salem dated 13 March 2008.

35. Although there were a number of persons present at the Meeting, only 2 persons spoke – Saade, the “big boss”, and the Plaintiff. Saade did not attend Court to give evidence in support of the Defendant’s case, nor did Sartini. If necessary, I am prepared to draw adverse inference against the Defendant’s case on the ground that material witnesses – in fact the most material witness, namely Saade, was not called when he should have been called. I do not accept the explanation given for his absence – the mere fact that Saade is a busy man is not a sufficient reason for his failure to give evidence in support of the Defendant’s case.

36. But there is little need for such adverse inference as I take the view that evidence is overwhelming in support of the Plaintiff’s case that he did not resign, but was forced to “resign” upon the assurance by Saade that he would be paid in full of his entitlements under the HOA. The Plaintiff was, in truth, sacked. The sacking was dressed up as a “resignation” as Saade considered that this was better for the Defendant’s reputation, and also the Plaintiff’s. In the words of Mr Bartlett, counsel for the Plaintiff, the Plaintiff took the fig leaf as he had no other choice.

37. As pointed out above, I believe in the Plaintiff’s evidence in this regard. Indeed, Salem, who did give evidence on behalf of the Defendant, confirmed that the suggestion of “resignation” came from Saade himself.

38. Moreover, the circumstantial evidence strongly support the Plaintiff’s case:

(a) The timing of the Meeting at midnight strongly suggests that it was a meeting summoned by Saade. Saade is the big boss (the Chairman) of the Defendant (Mr Kat has described him as an “autocrat” at trial), and it is difficult to imagine that he would allow himself to be summoned by its subordinate at midnight to accept a resignation. It is plainly much more likely that the Meeting was summoned by Saade and the Plaintiff was asked to attend the Meeting to take what he had decided;

(b) The Meeting took place on the eve of the opening of CNC’s new offices, and the Plaintiff had been working very hard on the event. It was, as Mr Bartlett put it, the Plaintiff’s “moment in the sun” – a moment of acknowledgement before many VIP guests attending the occasion of the result of his work in expanding CNC’s business. It is unlikely – with the Plaintiff all set to bask in the limelight, as it were – that he was privately planning his own resignation to be announced on the eve of the occasion of the opening of the new offices (and even more unlikely for him to summon his boss to receive the news at midnight). There is no evidence to suggest any circumstances or reason for the Plaintiff to resign at such time and in such (strange) manner.

(c) The Meeting took place at Saade’s suite and the fact that the other persons were already present when the Plaintiff was summoned to the suite strongly suggest that there had been a private meeting before the Plaintiff was asked to attend to receive the news of what had been decided beforehand. This is supported by the fact that on the evidence the Meeting was very short and was finished quickly. The Plaintiff was simply summoned up to take delivery of what Mr Bartlett aptly described as “short sharp coup de grace”. The fact that no one else (including Salem) spoke at the Meeting further supports the inference it was not the Plaintiff who suddenly announced his resignation at the Meeting, for if that was what happened, it would be difficult to imagine that Salem, who was instrumental in bringing the Plaintiff to CNC, would have remained silent and did not even utter a word of protest. On the other hand, if it was Saade who announced the decision that the Plaintiff was to leave CNC, it would not be surprising that the people present would not say anything, particularly if there had been a private meeting held beforehand and what was going to be announced by Saade was already well-known to the other attendees.

39. The Defendant suggests that the reason why the Plaintiff chose to voluntarily resign was that he wanted to focus his attention on fighting Zim’s claim in Singapore. I do not find this suggestion convincing at all. Resigning would mean that the Plaintiff had to surrender his entitlements under the HOA, lose his job, while having to meet the costs of the Zim litigation. It is most unlikely that the Plaintiff would choose to do this. The Plaintiff, in my view, is a mature, rational and determined character. It is unlikely for him to have become so disturbed by the Zim litigation to think that he needed to quit his job to deal with it full time. The Plaintiff had had experience in litigation while he was working in Zim, he had instructed lawyers in Singapore to defend himself and had only gone to Singapore three times only, while communicating with his Singapore lawyers mostly by email. While naturally the Plaintiff would have been concerned with the Zim litigation, he regarded the claim as wholly unfounded (and he was ultimately vindicated in the Singapore court), and I do not think that he would allow the Zim litigation to upset his life and work, to the point of resigning and surrendering all the benefits under the HOA.

40. On the other hand, the evidence strongly suggests that Saade had found the publicity of the Zim litigation very embarrassing to him and the Defendant. Zim is the national shipping line of Israel and the Plaintiff is an Israeli by birth. On the other hand, the Defendant is an Arab-owned French shipping company. The Defendant had been known to support the Arabian cause: it was, according to the Plaintiff, the only shipping line who did not call at an Israel port, and Saade was a signatory of “the Arab boycott” against dealing with Israeli companies. Salem himself, while denying that Saade was a signatory to the Arab boycott, has given evidence on the Defendant’s sensitivity to the Arab-Israeli issues, and told me that while as the Defendant, as a French company, could call on an Israeli port, it “stands, however, to lose its senior position in all Arab countries of shipping”. The Defendant had a concession for operating the container port in Latakia in Syria and was listed no. 2 in the entire container trade in Syria. For that reason, the Defendant had to be very careful that it would not “tempt authorities in Arabian countries” to target the Defendant as the Defendant would stand to “lose a very serious position”.

41. The Zim litigation had generated extensive press coverage of the fact that the Plaintiff, who had previously worked for Zim for many years, was the CEO of CNC, an indirect subsidiary of the Defendant. There was a media photograph showing a Defendant’s ship carrying Zim’s containers prominently bearing the Israeli Star of David on the containers. Saade must have found these media exposure of his company’s connection with the Plaintiff and Zim very embarrassing, and indeed this was a constant theme in some of the witness statements filed on behalf of the Defendant (although at trial the Defendant wanted to downplay this theme). That Saade had found the Zim litigation embarrassing is most clearly demonstrated by the fact that while previously (i.e. before the Zim litigation) he had attended the Box Club Meeting (a meeting of major participants in the containers shipping trade) in Marseille with the Plaintiff, he was not willing to be accompanied by the Plaintiff to attend the Box Club Meeting in Singapore in March 2008: Sartini in an email to the Plaintiff dated 6 March 2008 stated that Saade was “not comfortable to be in Singapore in the Box Club hotel with [the Plaintiff] and Zim”, and “would prefer that [the Plaintiff] not come to Singapore but prepare for the meeting in Taipei”. I hold that the decision by Saade to terminate the Plaintiff’s employment was probably motivated by Saade’s wish to avoid the embarrassment generated by the Zim litigation.

42. All these matters show quite clearly to me that the Meeting at midnight of 12/13 March 2008 was held for Saade to announce his decision to fire the Plaintiff, and to dress up the sacking as a resignation of the Plaintiff by having the Plaintiff agreeing to the same with an assurance that he would be paid in full all his benefits under the HOA. The contemporaneous documents, including in particular Salem’s email to Billion and Sioufi on 13 March 2008 and Plaintiff’s own email to these 2 gentlemen support my conclusion in this regard. The Defendant’s response to this is to say that Salem’s email was merely a directive for payment of the Plaintiff’s outstanding entitlement under the CNC Employment Contract, not the HOA. This was contradicted by the evidence of Salem himself (as pointed out above, Salem told me that when he referred to “the employment contract” in the said email, he was referring to the HOA). Moreover, the Plaintiff was paid his outstanding accrued entitlements under the CNC Employment Contract at the time when he signed the resignation letters. I do not see why Salem would have written the email to Billion and Souffi if he was not then thinking of the Plaintiff’s entitlements under the HOA – and he would not be thinking of the Plaintiff’s HOA entitlements if the Plaintiff had truly resigned. At the time the Plaintiff must also have understood the position in the same way – his email of 14 March 2008 speaks for itself.

43. I have already mentioned Soufi’s email to the Plaintiff on 31 March 2008 and the Plaintiff’s immediate response thereto. By a letter dated 21 April 2008, Souffi wrote to the Plaintiff effectively denying the existence of the HOA (by alleging that “having reviewed the documentation of [the Plaintiff’s] employment”, there is “no evidence of any contract signed by [the Plaintiff] and [the Defendant] other than the temporary agreement referenced in Mr Salem’s telefax of December 7 2006”. In this Action, the Defendant does not dispute the existence of the HOA, and Salem claimed that he had not seen the letter. That Souffi would deny the existence of the HOA shows that either he was hopelessly ignorant of the matter or that he had chosen, for whatever reason, to distort the position by making up an excuse for paying the Plaintiff.

44. In these circumstances, I have no hesitation in holding that the Plaintiff’s employment was terminated by the Defendant at the Meeting; that the resignation was merely a dress-up; and further that the Plaintiff agreed to such dress-up upon the assurance of Saade (representing the Defendant) that he would be paid his entitlements under the HOA. I further hold that the termination of the Plaintiff’s employment at the Meeting was not for any specified cause (although it was probably motivated by Saade’s wish to avoid being further embarrassed by the publicity of the Zim litigation). Accordingly, subject to the other defences of the Defendant (discussed below), the Plaintiff is entitled to payment under Clause 4 of the HOA.

The “Boston Deep Sea” Defence

45. I have held above that at the time when the Defendant terminated the Plaintiff’s employment, the termination was not made with any specified cause. More specifically, the Plaintiff was not terminated on ground of any misconduct, let alone wilful misconduct, on his part. As pointed out above, the Defendant now seeks to say that there in fact existed grounds at the time of the termination that would have entitled the Defendant to terminate the Plaintiff’s employment with cause – more specifically, on ground of wilful misconduct. Such retrospective justification of the termination is, according to the Defendant, firmly grounded upon the authority of Boston Deep Sea Fishingand Ice Company v Ansell (supra). For convenience, I shall call this defence the “Boston Deep Sea Defence”. In fact, the Boston Deep Sea Defence was the principal defence of the Defendant at trial, and most of the arguments of Mr Kat were focused on this defence.

46. It is the Defendant’s case that the alleged “wilful misconduct” of the Plaintiff was only discovered by it after the termination. If it were otherwise, there would be great difficulty for the Defendant to run the Boston Deep Sea Defence, as there would then be a very strong case of estoppel, argued by the Plaintiff, against the Defendant. The fact is that, on my finding, at the time of the termination of the employment, the Defendant did assure the Plaintiff that he would be paid his entitlements under the HOA if he agreed to have the termination. If the Defendant had been aware of these grounds of alleged wilful misconduct, and yet chose not to rely on them but went on to assure the Plaintiff that if he agreed to dress up the termination as a resignation, he would be paid the HOA’s entitlement; and the Plaintiff then proceeded to sign the resignation letter in reliance on the assurance; a classic case of promissory estoppel would be made out against the Defendant on the facts of the present case (and the authority of Boston Deep Sea Fishing would be readily distinguishable on its very different facts) even if there had been such alleged wilful misconduct.

47. The nature of promissory estoppel or equitable estoppel is well-known. As Lord Goff observed in Motor Oil Hellas (Corinth) Refineries SA v Shipping Corp of India (The Kanchenjunga) [1990] 1 Lloyd’s Rep. 391 at 399:

“… equitable estoppel requires an unequivocal representation by one party that he will not insist upon his legal rights against the other party, and such reliance by the representee as will render it inequitable for the representor to go back upon his representation… The party to an equitable estoppel is representing that he will not in future enforce his legal rights. His representation is therefore in the nature of a promise which, though unsupported by consideration, can have legal consequences; hence it is sometimes referred to as promissory estoppel.”

48. I would hold, if the Defendant had been aware of these alleged wilful misconduct, and yet proceeded to give the assurance; and the Plaintiff proceeded to rely upon it to sign the resignation letters and leave CNC immediately; it would indeed be inequitable for the Defendant to go back on the assurance.

49. Accordingly, whether the Defendant is entitled to rely on the Boston Deep Sea Defence depends, in part, on whether it was aware of the alleged wilful misconduct before it terminated the Plaintiff’s employment at that midnight meeting held in Saade’s hotel suite in Taipei. Mr Kat accepts that the Defendant bears the burden of proving the alleged wilful misconduct and that the Defendant “did not know of one or more [of the] ‘justifying’ breaches prior to termination”.

Did the Plaintiff owe fiduciary duties to the Defendant?

50. The Plaintiff was not employed by the Defendant but by CNC. It was a director of CNC, not a director of the Defendant. But the Defendant says that the Plaintiff owed to it fiduciary duties co-extensive to, and as if, he were the Defendant’s employee and director.

51. Although CNC was an indirect (and not wholly-owned) subsidiary of the Defendant, the Defendant was not a direct shareholder of CNC: the Defendant acquired CNC through a Taiwan subsidiary called CMA CGM Overseas Taiwan Investment Co. Ltd (“CMA Taiwan”). The Defendant was hence only a shareholder of the shareholder of CNC. By 6 March 2007, CMA Taiwan owned about 59% shares of CNC.

52. That the Defendant was not a shareholder of CNC is important because Mr Kat relies on the CNC Employment Contract, which provides, inter alia, in Clause 2(1) that:

“It is the present intention of [CNC] that the duties of the employee shall include the following:

(1) To execute [CNC]’s business plan and policy, and carry out all of the conclusions of Board of Director and Shareholders.” (underline added for emphasis)

53. I do not think that this clause, per se, helps Mr Kat at all. The fact that the Defendant is not a shareholder of CNC means that whatever is the scope of Clause 2(1), it does not impose duties on the Plaintiff to carry out instructions from the Defendant.

54. Of greater force is Mr Kat’s argument that by the HOA, the Plaintiff agreed to take up employment at the nomination or direction of the Defendant, and each party to the HOA agreed to undertake obligations towards each other. The Defendant was obliged to pay the Plaintiff in accordance with the HOA, including the Cancellation Indemnity provided under Clause 4. The Plaintiff accepts (see paragraph 9A of his Re-re-re-Amended Reply and Defence to Counterclaim) that correspondingly the Defendant retains the power to terminate the HOA for wilful misconduct or fraud and on terms as to his remuneration undertaken as an obligation by the Defendant in clauses 5 to 8 of the HOA. The obligations are mutual.

55. Mr Kat further argues that the Plaintiff had, under the HOA, agreed to be entrusted by the Defendant to take up the position and duties as the managing director and CEO of CNC once the Defendant successfully acquired the majority shareholding of CNC (although eventually only indirectly through CMA Taiwan) and could procure his appointment.

56. I see the force of Mr Kat’s arguments. Mr Kat’s arguments are amplified by the fact that the Plaintiff did, as a matter of fact, take instructions from the Defendant during the period of his employment with CNC, and realistically recognised that the Defendant was the ultimate majority owner of CNC. Fiduciary duties are, as rightly pointed out by Mr Kat, imposed as a matter of law. Fiduciary relationship may arise where the circumstances shows that a person has undertaken to act for or on behalf of another in circumstances which gives rise to a relationship of trust and confidence, or which gives rise to a legitimate expectation that the fiduciary will not utilize his or her position in such a way which is adverse to the interest of the principal. It is a defining feature of fiduciary duties that the fiduciary assumes a duty of loyalty by subordinating his own position to that of the other party. As Millett LJ (as he then was) observed in Bristol and West Building Society v Mothew [1988] 1 Ch 1 at 18:

“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr Finn pointed out in his classic work Fiduciary Obligations (1977), p.2, he is not subject to fiduciary obligations because he is a fiduciary, it is because he is subject to them that he is a fiduciary.”

57. In Arklow Investments Ltd v Maclean [2000] 1 WLR 594 at 598, the Privy Council held, in reference to the duty of loyalty of a fiduciary that:

“… the concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal. An example of the obligation relevant to the present case is not to exploit or take advantage of the position of fiduciary at the expense of the principal. The existence and the extent of the duty will be governed by the particular circumstances…”

58. In the special circumstances of the present case, I think it is very arguable that the Plaintiff did owe a duty of loyalty to the Defendant, and that the Plaintiff did repose trust and confidence in him. I think Mr Kat was correct in his submission that under the HOA, the Plaintiff agreed to be entrusted by the Defendant with the position of managing director and CEO of CNC, which, as contemplated by the parties, would be acquired by the Defendant. The Defendant had, independently of CNC, agreed to pay the Plaintiff on terms of HOA, and the Plaintiff agreed that the Defendant may terminate his employment on grounds of wilful misconduct or fraud and free itself of the payment obligations under Clause 4 of the HOA. This being the case, there is in the present case an evidentiary basis (unlike the case of Arklow Investments referred to above) for holding that by reason of the HOA, the Plaintiff had assumed a duty of loyalty towards the Defendant, thereby becoming a fiduciary.

59. Accordingly, in this Judgment, I will proceed on the basis that the Plaintiff did owe fiduciary duties to the Defendant. That said, as rightly pointed out by Mr Bartlett, the categories of fiduciary relationship are infinitely varied and the duties of a fiduciary vary with the particular circumstances that generate the relationship. As pointed out in the Arklow Investments case cited above, the existence and extent of the duties are governed by the particular circumstances (see also, Hospital Products Ltd v United States Surgical Corporation [1984] 156 CLR 41, at paras. 84,89). While I am prepared to hold that the Plaintiff owed a duty of loyalty by reason of the HOA, I am not prepared to hold that he owed fiduciary obligations to the Defendant as if he were the Defendant’s employee and director.

60. In any event, as will be noted from the latter part of this Judgment, I do not find the Defendant guilty of any breach of duties – let alone any wilful misconduct – which would justify a retrospective justification of the termination of his employment. Moreover, I hold that the matters relied upon by the Defendant as constituting the alleged breach of duties was well known to the Defendant before the termination. I would therefore hold that even if there were any wilful misconduct (which I have found none), the Defendant would be estopped from relying on the same, for reasons that I have mentioned earlier.

The alleged breach of duties

61. The Defendant relies on a number of matters in alleging that the Defendant had acted in breach of fiduciary duties. In my judgment, none of these allegations has any substance.

(1) Adoption of Defendant’s standard forms

62. The first complaint by the Defendant was that the Plaintiff had failed or delayed in complying with the Defendant’s instruction to adopt the Defendant’s standard forms for the appointment and termination of general agents (“GA”). I do not find any substance in this complaint. The first time that those standard forms were sent by the Defendant to CNC was in October 2007. Those standard forms were indeed adopted by CNC where possible (e.g. in November 2007 when there was a name change of the Thailand GA, the opportunity was taken to update the terms of the GA Agency Agreement by using the Defendant’s standard forms). For other GAs, there was a planned agent migration (more below) that was being held up by the implementation of a computer system called LARA. The implementation of the LARA system was not complete until well after the termination of the Plaintiff’s employment. There is, in my judgment, no question of the Plaintiff not acting in good faith or in breach of any fiduciary duties.

(2) Agency Migration

63. The second complaint was that the Plaintiff had failed to, or had delayed in implementing the Defendant’s instruction or directive to migrate CNC’s agents. Hitherto CNC had been using third party agents. After CNC was acquired, the Defendant planned to terminate the existing agencies, and the Defendant (or its subsidiary companies) would become the agents of CNC in all countries including China. In some jurisdictions (e.g. Hong Kong), the plan was to ask the local agent to become a minority partner with the Defendant.

64. The problem with the implementation of the intended agency migration was that CNC lacked the necessary computer system to store and monitor information of its agents and customers. This is because hitherto CNC’s practice was to leave it to its agents to keep the relevant information and CNC simply did not have the necessary computer infrastructure to properly handle the agency migration and its attendant effect. The Plaintiff had therefore advised the Defendant that the proposed agency migration be not pressed too hastily, and that existing agency arrangements be retained until after the new computer system, i.e. LARA, was ready. In my judgment, this was plainly sensible advice, and rather than acting in breach of his fiduciary duties, the Plaintiff was acting in the best interests of both CNC and the Defendant.

65. Apart from the problem caused by the lack of a proper computer system, there was an additional tax problem for changing the agents in China and Hong Kong. The problem was detailed in an email dated 22 May 2007 sent by the Plaintiff to Salem. In that email, the Plaintiff also recorded that Salem had indicated that he had “no intention to change agencies for at least one year”. The Plaintiff further wrote:

“… further more due to [lack] of computerized system the agencies today control all freight recognition and even [worse] all cost recognition and control, we have no records of clients and changing agents at this stage might be disastrous. I suggest to stick to our original plan and maintain CNC agents for at least one year, we are installing new I.T. system which will enable us to take over the cost control, we will have customers [management] system which will allow us better grip of our clients at the various destinations, only then can we start speaking of a change. Until then I strongly recommend to maintain current status quo, the last thing we want at this stage is this kind of shake up which can cause us huge damages…”

66. It is the Plaintiff’s evidence, which I accept, that the Defendant accepted the Plaintiff’s recommendation that the agency migration be deferred until the LARA system was ready, so as not to risk substantial damage to CNC’s business. By an email of Salem dated 23 May 2007 to the Plaintiff, referring to the Plaintiff’s email the day before, Salem informed the Plaintiff that CNC would “maintain [its] Agents as is for the time being”. Danny Wang, who replaced the Plaintiff as the managing director of CNC after the Plaintiff’s employment was terminated, also confirmed in cross-examination that he did not implement the agency migration until after the LARA system had been installed.

67. As things turned out, attempts to interface the new LARA system with the existing computer system (the Sealink system) of CNC failed and a full replacement of the existing system with LARA was required. The replacement was not completed until sometime in June 2008, well after the termination of the Plaintiff’s employment in March 2008. The evidence shows that after the LARA system was installed, the first agent migration took place, with subsequent agent migrations continuing through to April 2009. There is no reason to think that if the LARA system had been available earlier (i.e. before the Plaintiff left CNC), the Plaintiff would have failed to implement the agency migrations proposed by the Defendant.

68. There is no substance in this complaint. I do not find the Plaintiff to have acted in any breach of fiduciary duty.

(3) Rumoured kickbacks (Thailand and Hong Kong GAs)

69. In an email dated 10 October 2007 from Salem to the Plaintiff and Frank Lu, Salem wrote:

“We have concrete information that agents of CNC in Thailand and Hong Kong are receiving kick backs for services performed by CNC such as tugs and stevedoring…
I have told you when visited Marseille that we have now to take control of these 2 agencies by either buying the equity or cancelling the agency agreement.
Please proceed soonest.
Meantime, Jean Yves Schapiro is preparing for an audit in Hong Kong and Thailand.”

70. It is alleged by the Defendant that the Plaintiff had, in breach of his duties, failed to follow Salem’s instructions to terminate the GA in Thailand (the Defendant has abandoned the complaint as regards the Hong Kong agent during trial).

71. As is clear from the email of 10 October 2007 itself, the Defendant had sent an audit team (Jean Yves Schapiro was the former Chief Financial Officer of the Defendant and a director of CNC) to the Gas to investigate if the alleged kickbacks were substantiated. The audit was conducted by the Defendant itself and did not involve CNC. The outcome of the audit was not even made known to CNC or the Plaintiff. As far as the Plaintiff was concerned, the matter had been taken out of the hands of CNC and was handled by the Defendant itself. No further complaint was made by the Defendant thereafter. In my judgment, it was only natural that the Plaintiff would assume that the investigation by the Defendant’s audit team had not revealed anything that required follow-up by CNC. Otherwise, one would expect Salem or the Defendant to have written further to the Plaintiff on the results of the audit and required the Plaintiff to take whatever follow-up action consequential thereon.

72. At trial, I asked Salem specifically what was the “concrete information” mentioned in his email dated 10 October 2007 that he had for saying that the Thai and Hong Kong GAs were receiving kickbacks. He told me that he could not recall. Upon cross-examination by Mr Bartlett, Salem said that he could not recall “the results of the audit or what was done later on with it”. I must say that I find this rather surprising. If the Defendant considers that the Plaintiff had been in breach of his duties in not terminating the Thai GA immediately on ground of kick-backs, there must have been an urgency which made the Defendant believe that the kick-backs allegation was true or substantiated. Salem’s professed ignorance or inability to recollect the basis for such urgency seems to me to be extremely odd. It also makes the whole allegation very unreal, particularly in the light of the fact that CNC and the Plaintiff was not told of the result of the audit and received no further instruction to take any further action after the audit was performed by the Defendant.

73. I reject the Defendant’s allegation in this regard and find that the Plaintiff has not breached any fiduciary duty.

(4) Reporting to the Defendant

74. It is further alleged by the Defendant that the Plaintiff had failed to properly report to it on the affairs of CNC. I find this allegation baseless. Salem gave evidence that until about July 2007 (although he was rather vague about the date), the Plaintiff had been reporting to him on a weekly basis. Thereafter, at the Defendant’s request (as Salem was very busy), the Plaintiff regularly reported to Sartini “daily or every three days”. I see no basis for the Defendant’s allegation in this regard. There are in any event no reporting requirements to the Defendant and I see no basis for any complaint that the Plaintiff had in any way failed in any duties in this regard.

(5) Failing to obtain board approval on operational matters

75. It is alleged that the Plaintiff had failed to obtain the approval of the Board on various operational matters (such as appointing agents, opening new services etc.). But the evidence shows that it had always been the practice of CNC, from the time before it was acquired by the Defendant until after the Plaintiff became its managing director and CEO, for there to be very few board meetings. Board meetings were not held to consider operational matters but to deal with legal and administration matters. That was always the practice, which was continued post-acquisition without any complaint by the Defendant. When Salem himself was a director of CNC, CNC had opened new services without having approval by the Board.

76. The allegation has a ring of unreality in it. Salem agreed with Mr Bartlett’s suggestion in cross-examination that the Defendant was “not concerned that business and marketing matters of CNC were not put to the Board of CNC for approval”. Indeed none of the Defendant’s French directors were ever physically present at any board meeting of CNC (save on one occasion in June 2007 when a Mr Hans Meurs attended the Board meeting of CNC). The Plaintiff told me, and I accept, that he was the representative of the Defendant on CNC’s Board and that the other French directors provided him with proxies to act on their behalves.

77. In any event, if there were any failure to hold Board meetings or to include operational matters in the agenda of Board meetings, I fail to see why the Plaintiff should alone be blamed. It is a collective failing by all of CNC’s directors and I do not think that it is right to categorise such collective failing as a breach of fiduciary duty on the Plaintiff’s part. I reject this allegation.

(6) Appointment of Star Navigation and associated complaints

78. There are 2 main types of container shipping, namely “Carrier’s Own Containers” (“COC”) and “Shippers’ Own Containers” (“SOC”). In the case of COC, the carrier or shipping line provides the containers for carrying the goods. In SOC, it is the shipper who provides the containers. A feeder operator (and CNC is one such operator) is one who “feeds” or transports containers between a main port and a smaller hub port. In the case of SOC business operated by a feeder operator, the feeder operator carries shippers own containers from a main satellite port to a hub port.

79. At all material times, CNC had its own GAs (i.e. general agents) in Thailand, Malaysia and Indonesia (collectively as “the Territories”). These GAs were the booking agents of CNC and were agent in the true sense of the word – they represented and acted as agents for their principal, namely CNC (as the carrier), and earned commission from CNC for providing their agency service. Unlike a NVOCC, the GAs did not issue any House Bill of Lading of their own, but issued their principal’s bills of lading to their customers/shippers.

80. In contrast to GAs, an NVOCC operates as principals themselves by purchasing container space from a carrier, much like a freight forwarder. Unlike a freight forwarder, however, an NVOCC issues its own House Bill of Lading and assumes responsibility for the shipments, thereby functioning as a carrier although it does not own a vessel (hence the name “Non Vessel Operating Common Carrier”). The shipping line issues its Master Bill of Lading to the NVOCC, naming the NVOCC as shipper. As said, the NVOCC issues its own House Bill of Lading to its clients (naming the clients as shippers in its House Bill), and passes on the shipping line’s Master Bill. Also unlike the freight forwarder, an NVOCC will provide its own containers assets (either of its own or by having leased the same). The shipping line from whom the NVOCC purchases container space will accordingly carry the cargo shipped by the NVOCC as SOC.

81. As the NVOCC acts as a principal and not as agent, it charges its own price to its clients. It is quite entitled to, and does, mark up the shipping line’s charge to earn its profit margin. The experts are agreed on this.

82. In August 2007, the Plaintiff agreed with Ong to appoint Star Navigation as CNC’s sole and exclusive booking agent for CNC’s SOC in the Territories. On or about 27 August 2007, the Plaintiff gave notified CNC’s GAs in the Territories that CNC had “decided to split its COC and SOC division into 2 separate arms” and while the COC activity would be carried on by CNC itself, the SOC activity would be subcontracted on exclusive basis to Star Navigation. The GAs were notified that Ong of Star Navigation would approach them directly to sign a booking agent agreement. Star Navigation would be responsible for the collection of freight payments from customers, and would remit the freight to the GAs who would in return remit the same to CNC. The GAs were also notified that a 45 days credit had been given to Star Navigation between shipment date and remittance date to the GAs.

83. As pointed out above, Star Navigation Malaysian company that belonged to the Starship group of companies (“Starship Group”). Starship Agencies Sdn Bhd (“Starship Agencies”), a Malaysian company of the Starship Group had been engaged by Zim as its general agent for container feeder services in Malaysia for many years (since 1997). Ng was a director and shareholder of Starship Agencies, as well as a director and a 50% shareholder of Star Navigation. Ong was also a director of Star Navigation. Moreover Ng was also director and shareholder of CSA – it may be recalled that CSA made the CSA Consultancy Agreement with the Defendant, mentioned in paragraph 9 above. The Defendant now complains that:

(1) The Plaintiff failed to disclose to CNC and the Defendant the agreement that he had caused CNC to make with Star Navigation, which was made without approval or authorization of CNC’s Board;

(2) the Plaintiff did not require Star Navigation to account to CNC for the charges to be made for SOC on CNC’s services, “thereby exposing CNC to the possibility of over charge, anti-competitive pricing and secret profit by Star Navigation”; and

(3) failed to monitor or report to CNC or the Defendant the rates at which CNC’s space was sold by the GAs;

(4) the notification and instruction to the GAs given under the Plaintiff’s email dated 27 August 2007 were given by the Plaintiff allegedly contrary to the Defendant’s instructions, and without disclosure to, and approval or authorisation of, the CNC’s Board;

(5) the Plaintiff did not disclose to CNC’s Board or to the Defendant his “connection” with Star Navigation through Ng (and his own “close business personal relationship” with Ng), who was related to Starship Agencies and CSA, as mentioned above.

84. These complaints now constitute the major thrust of Mr Kat’s arguments for the Boston Deep Sea Defence. I find, however, the complaints rather contrived, and out of touch of the realty.

85. As the Plaintiff pointed out in his evidence (which I accept), when he took up his position as CEO of CNC, CNC’s own shipping line operations were losing money (although as a whole CNC was making a profit from its chartering to other companies of vessels owned by its subsidiaries). One of the Plaintiff’s mandate under its employment contract with CNC was to “upgrade CNC”. This the Plaintiff set out to do after taking up his position in CNC, and one of the things that he did was to increase CNC’s SOC business, i.e. carrying other shipping line’s containers from what was then 5% of CNC’s business to about 30%. As the Plaintiff pointed out (in paragraph 35 of his witness statement), this “would improve the utilisation of CNC vessels without the need to increase the container fleet and consequently costs”. Space that CNC could not fill up with its COC trade could be profitably used for carrying SOC.

86. Moreover, the Defendant had proposed to transfer to CNC its FAS feeder service business “on a case by case basis in situations where CNC brings substantial additional volumes” of its own “at less or no costs” (see Salem’s Memorandum dated 10 April 2007 to the Plaintiff. When it was put to Salem that in order to achieve or acquire such additional volumes, he agreed that “the growing of the SOC business was a reasonable approach”.

87. Plainly the Plaintiff was instructed to work on the growth of the SOC business and Salem conceded that he had adopted a reasonable approach in that regard. In my judgment, it can hardly be said that taking a reasonable approach in working on the growth of the SOC business was a breach of instruction on the Plaintiff’s part. Quite to the contrary.

88. It should also be pointed out that the proposed transfer of the Defendant’s FAS feeder service, while it may increase CNC’s business volume, would not be profitable from CNC’s point of view, as it was to be done specifically on the basis of less or no costs, thus effectively requiring CNC to cross-subsidise the Defendant. In order to lift CNC’s profits on the SOC business, the Plaintiff would have to seek to expand the SOC business without having to reduce or discount its tariff rates.

89. As explained by the Plaintiff, the major problem that the Plaintiff faced with increasing the SOC business for CNC was that the main shipping line operators (“MLOs”) would be reluctant to give SOC business to CNC, as CNC was owned by the Defendant, which was one of the MLO’s competitors. The MLOs would naturally be apprehensive of the Defendant obtaining details (through CNC) of the MLO’s cargoes. The Plaintiff said in his evidence that he had experienced similar problem before when he was the managing director of Gold Star in Hong Kong. The existing GAs of CNC would have problem in obtaining SOC business from the MLOs – at the very least it would take much time for the GAs to try to penetrate that market, and CNC’s tariffs might have to be reduced in order to attract the SOC business.

90. The Plaintiff saw a way of solving this problem, namely by appointing an “independent booking agent” to handle the booking of SOC business into CNC’s vessels, the MLOs would not have to disclose to CNC that they were booking cargo onto CNC’s vessels, or what that cargo was. The independent booking agent would be able to ship the MLO’s containers in its own name, and would only be required to disclose to CNC the number of containers being shipped and the name of its agent at the destination port. An independent booking agent would therefore be able to attract SOC business for CNC from the MLOs (see paragraph 78 of the Plaintiff’s witness statement).

91. An NVOCC would fit the bill of this solution, functioning, for all practical purposes, as an independent booking agent (and not as an exclusive shipping agent for the shipping line). An NVOCC is like a freight forwarder but issues its own House bill of lading. It is an independent booking agent. Star Navigation was an NVOCC and had a good reputation. Although the Plaintiff had no previous dealings with Star Navigation before, he considered it a good choice as it was a company based in Malaysia and would be able to attract business from the MLOs, as the MLOs bid for the carriage of their SOC business. There is, as rightly pointed out by Mr Bartlett, nothing in the evidence to contradict the soundness and legitimacy of these reasons given by the Plaintiff for appointing Star Navigation as part of the Plaintiff’s initiative to grow CNC’s SOC business as quickly as possible.

92. In accepting the appointment to act as CNC’s sole agent to handle its SOC business, Star Navigation undertook “to perform to the requirements of principal [i.e. CNC] with regards to SOC bookings and target to achieve 300 teus weekly on both [northbound] and [southbound] for TMX, TMJ and MJX [which stands for Thailand-Malaysia Express, Thailand-Malaysia-Jakarta, and Malaysia-Jakarta Express respectively] by next two weeks and thereafter 500 teus both directions weekly in four weeks time”. Hence there were concrete performance criteria to be met by Star Navigation and the promised exclusivity would not hold if Star Navigation’s performance was found “not satisfactory” (see, email from the Plaintiff to Ong dated 22 August 2007). There is no evidence before me to suggest that Star Navigation had failed to perform in the manner agreed, or was not satisfactory.

93. In my judgment, the Plaintiff was clearly acting in good faith in agreeing with Star Navigation to appoint it to handle CNC’s SOC business. The Plaintiff was acting in the interests of CNC, to upgrade it as mandated by his employment contract, and to grow its SOC business by taking what in the circumstances a most “reasonable approach”. There is no question of breach of instructions or breach of fiduciary duty in this regard.

94. It is clear that after the Plaintiff had taken up his position in CNC, he had been working hard to expand the business and profits of CNC, and with much success. I note from the CEO Report dated 19 November 2007 submitted by the Plaintiff to the CNC’s Board that it was recorded that as at the time of the Report, CNC had completed suspension of 8 services with low profitability and launched 12 new services since July 2007. Moreover, compared with April 2007, monthly loaded containers (revenue generating) throughput had increased some 60% (from 40,000 teus per month to 63,840 teus per month), and by December 2007, monthly loaded containers had increased by nearly 75% (70,000 teus per month). Revenue per teu was also increasing: compared to April 2007, the revenue per teu had increased by 3% (to USD 425/teu). I have no doubt that the Plaintiff was working hard to advance CNC’s business interests, with much success, and any accusation against him for not acting in the interests of CNC would be quite unfair.

95. What has caused me to hesitate a little is not any doubt that I have on the Plaintiff’s good faith in acting as he did, but to ponder on the reasons behind the fact that the Booking Agency Agreements as eventually signed by Star Navigation and the GAs did not actually reflect the agreement that the Plaintiff reached with Ong on behalf of Star Navigation (the Booking Agency Agreements as signed between them contained elements which suggested that Star Navigation was not acting as an independent NVOCC, but as a true agent in the legal sense), which was clearly evidenced in the email exchange on the matter. Having considered the evidence, I accept Mr Bartlett’s submissionsin this regard, which are set out in paragraphs 102 -108 of his written Closing Submissions. I would not set out those submissions in detail. Suffice for me to repeat the following points made by Mr Bartlett (in paragraph 102 of his written Closing), which I accept:

(a) The Plaintiff was not involved in the execution of the Booking Agency Agreements which were signed in Malaysia, Indonesia and Thailand respectively by the relevant GAs;

(b) Final drafts of the Booking Agency Agreements were not sent by the GAs to CNC for approval;

(c) The Plaintiff had not seen the drafts of the Booking Agency Agreements again following upon his communication to Star Navigation of 25 August 2007 that their draft was unacceptable and that a simple agreement should be drafted;

(d) The Plaintiff believed that a fresh draft would be prepared in accordance with his request. Danny Wang recalled that he had taken responsibility for preparing this and sending it to Star Navigation and that that was his intention expressed in an email of 20 August 2007, but for reasons which he did not explain, he failed to do so and thus it appears that the Star Navigation’s draft continued to be used with the only modification being to change the name of the party from CNC to the GAs;

(e) The Plaintiff acknowledges that he did not follow up personally on whether the Booking Agency Agreement contained the terms that he had agreed with Star Navigation. He believed that an executed copy was sent to and filed by Danny Wang. He did not see it.

(f) In any event, the Plaintiff’s focus was to get the essential terms understood between himself and Star Navigation (which he did via email), following which his concern, as CEO, was to see if Star Navigation could perform its side of the bargain and achieve the volumes it promised. And Star Navigation did indeed perform the volumes it had promised to CNC’s satisfaction.

96. I accept that the “mess-up” in the Booking Agency Agreement as signed between the GAs and Star Navigation had nothing to do with the Plaintiff. If anyone was at fault in failing to follow the matter of drafting through (to ensure that they correctly reflected the terms agreed between the Plaintiff and Ong in emails), it was Danny Wang and not the Plaintiff. I do not think that there was any breach of fiduciary duties on the part of the Plaintiff in this regard.

97. As the experts agree, an NVOCC is an independent party and is entitled to mark up prices to its customer and remit only the freight to the carrier. An NVOCC (such as Star Navigation in the present case) is acting as a principal and does not earn commission from the carrier or shipping line. It is not the business for the carrier to know the mark-ups of the NVOCC and there is no obligation on the part of Star Navigation, as NVOCC, to account to CNC the prices it chose to charge its clients. Neither is there any question of CNC “monitoring” the prices charged by Star Navigation. CNC would receive the freight charges in accordance with its tariff rates and it was no business of it to inquire, monitor or request Star Navigation to account for any mark-ups that it might choose to charge to its own clients. Accordingly, if the Plaintiff had committed no wrong (as I so hold) in appointing Star Navigation as the NVOCC to handle exclusively CNC’s SOC business, there is no ground for the Defendant to complain that NVOCC had charged marked-up prices to its clients (which was something to be expected) and did not account to CNC for the mark-ups.

98. At trial, I have heard evidence of Khairallah and have also considered the Schedule of mark-ups submitted by the Defendant. The Schedule appears to comprise the SOC of Star Navigation placed with CNC, and includes voyages other than those intra the Territories. I do not find such evidence helpful and in any event I find the precise extent of the mark-ups entirely irrelevant as it was within the right of Star Navigation to charge its clients whatever price it thought fit; and so long as Star Navigation fulfilled its performance pledge (and there is nothing to suggest that it had failed to do so) and remitted the freight collected to CNC, CNC could have no cause for complaint.

99. As regards the alleged lack of knowledge of CNC’s board and the Defendant of the appointment of Star Navigation, I find the allegation wholly unreal. The evidence clearly shows that (1) Danny Wang (then director of CNC and its Chief Financial Officer), Chris Li (Head of Planning and Business Development), Ainge Chan (Head of Marketing and Sales), had taken part in the discussions leading to the in-principle agreement to appoint Star Navigation; (2) Danny Wang attended a meeting with Star Navigation’s representatives, and as already pointed out above, he took charge of preparing the revised draft of the Booking Agency Agreement, and received and filed copies of the executed agreements; (3) Mazars, who was appointed by the Defendant as CNC’s Treasury Finance and Accounting Manager, also participated in the discussions for the appointment and the splitting of the SOC and COC business, and also the relevant accounting treatment and setting up monitoring codes for the share of the Container Handling Fees between the GAs and Star Navigation. Hence Star Navigation’s SOC account was being monitored in CNC’s accounting system with special codes and treatment.

100. There is hence no question of any secrecy in the appointment of Star Navigation, and the segregation of the COC and SOC business within CNC. The GAs themselves obviously knew of the appointment and the segregation, and also the fact that Star Navigation was acting as NVOCC (in the Master Bills of Lading, Star Navigation was named as shipper of all the SOC cargo irrespective of the type of cargo, and it must be apparent to everyone involved that Star Navigation was not the ultimate customer of the cargo, and its being named a shipper in the Master Bills could only be because it was an NVOCC or freight forwarder).

101. Given the fact that Mazars regularly reported to Jean Francois Vingre (former Chief Financial Officer of the Defendant’s Asian regional office), Schapiro or Salem, the special accounting system set up by Mazars to deal with Star Navigation’s account and the shared Containers Handling Fees, and the significant increase in the SOC volumes after the appointment of Star Navigation, I find it wholly unreal for the Defendant to suggest that it did not have knowledge of the new arrangement. There must have been review by the Defendant of the financial and performance data of CNC reported by Mazars, and Mazars acknowleged in his evidence that CNC’s performance figures were important information for the Defendant to know. Given that Mazars himself must know about the appointment, it is incredible that he would not have reported to his superiors in the Defendant as plainly this is a matter that is important for him to report. Salem also acknowledged that Mazars would have reported CNC agency matters to Stephane Mazain (“Mazain”, who was the Vice President and the person responsible for the Defendant’s agency matters in Asia), and Mazain would have in turn reported to him. Insofar as Mazars and Salem (particularly in their evidence given in examination in chief) sought to deny knowledge on the part of the Defendant, I reject their evidence. During cross-examination, Salem told me that while he did not know about the details of Star Navigation, other executives in the Defendant who were involved in agency matters “would have known, possibly”.

102. I find that the Defendant was well aware of the appointment of Star Navigation soon after the appointment was made, and well before the Plaintiff’s employment was terminated. There was no reason for the Plaintiff to think that the Defendant was not aware of the decision to segregate CNC’s SOC and COC business, and the appointment of Star Navigation. There is accordingly no question of any failure to disclose.

103. Mr Bartlett has made other points to support his contention that inference must be drawn that the Defendant had knowledge of the matter, and he further submitted that the knowledge of the GAs must, as a matter of law, be attributed to CNC and the Defendant (relying on the knowledge attribution rules as discussed in the case of Moulin Global Eyecare Trading Ltd (in liq) v Commissioner of Inland Revenue [2012] 2 HKLRD 911. I do not find it necessary to deal with these points, and prefer not to express any opinion on them as they are not necessary to my conclusion above.

104. As to the lack of formal approval by CNC’s Board, the appointment of Star Navigation was an operational matter and I have already dealt with this issue of requirement for Board approval on operational matters above. I have pointed out above that it had been the practice of CNC to hold few Board meetings and, when Board meetings were held, they were held to deal with legal and administration matters, not operational matters. I hold that the Plaintiff was not in breach of any fiduciary duties in following this practice. In any event, on my findings above, plainly CNC and the Defendant were aware of the appointment of Star Navigation and that there was no formal Board approval for the same. They were well aware of this prior to the termination of the Plaintiff’s employment, and had never raised any complaint or issue on the same.

105. It is submitted by the Defendant that as the Plaintiff was aware that another company in the Starship group, namely Starship Agencies, were engaged in providing agency services to Zim, and Zim was a competitor of the Defendant, the appointment of Star Navigation was a breach of fiduciary duty on the Plaintiff’s part.

106. I do not quite see why that is so, and again I find this submission rather unreal. The fact that Zim was a competitor of the Defendant had certainly not prevented the two companies from working together if there were profits to be made – the evidence shows that the Defendant previously had a vessel sharing arrangement with Zim (while the Plaintiff was working with Zim; and CNC had previously operated a joint service with Zim’s Gold Star line (indeed that was how the Plaintiff knew Danny Wang in the first place, well before the Plaintiff was employed by CNC).

107. And I find it unreal for the Defendant to contend that because Zim was its competitor, and another Starship company had been providing service to Zim, it was a breach of fidelity and good faith for the Plaintiff to appoint Star Navigation. The Plaintiff himself had worked for Zim for many years and this did not prevent Salem to get the Plaintiff to work for CNC, and before that, CMA Hong Kong. Moreover, Salem must have been aware that Starship agencies had been acting for Zim – he must be aware of this because, as said, the Defendant itself had a joint venture or vessel sharing arrangement with Zim, with Starship Agencies acting as the GA. In the Zim litigation, the fact that Starship Agencies was the GA of Zim was pleaded in the Writ and Salem had asked for a copy of the Writ to be obtained. Indeed the Zim litigation must have put the Defendant in focus (as pointed out above, Saade and the Defendant were concerned with the media publicity of the Zim litigation) of the various allegations made therein, including the connection of Starship Agencies to Zim as its GA, the connection of the Plaintiff with Ng, who was also a defendant in the Zim litigation.

108. There is also evidence that shows that in September 2007, Star Navigation had acted as NVOCC for the Defendant’s SOC carried by the Gold Star Line out of Malaysia, with Starship Agencies acting as the GA of the carrier. Accordingly, at all material times, the Defendant must have known of the “connection” between Starship Agencies and Zim. If indeed the Defendant had any complaint against Star Navigation’s appointment on the ground that Starship Agencies was the GA of Zim, I would have thought that the Defendant would have raised the issue much earlier and well before the termination of the Plaintiff’s employment in March 2008. And if the Defendant had indeed considered this as involving a serious breach of fiduciary duty on the part of the Plaintiff, there is no reason why it would have failed to raise it as a ground for termination at the time when it terminated the Plaintiff’s employment. Indeed after the Zim litigation was commenced, in February the Defendant had expressed support of the Plaintiff. There is no reason why it should have done so if it had considered that the Plaintiff was in breach of his fiduciary duties in appointing Star Navigation to handle CNC’s SOC business in the Territories, on the ground that Star Navigation was part of the Starship group.

109. The Defendant also complains that the Plaintiff had failed to disclose his business and personal relationship with Ng and/or Ong, and their connection to the Starship group, Starship Agencies and CSA.

110. As with other complaints made as part of the Boston Deep Sea Defence, I find this complaint contrived. The evidence shows that CNC had had longstanding connections with Ng and his companies. For example, in November 2002, SAR East Asia SDN Bhd, the predecessor of Starship Agencies, was appointed by CNC to be its GA in Malaysia. Between 2002 and June 2007, Starship Agencies had acted as general agent for CNC at various times. In November 2002, CSA was appointed GA of CNC in Singapore. Subsequently in October 2004, Starship Agencies (Mal) Pte Ltd., another company in the Starship group, was appointed as CNC’s GA in Singapore.

111. The Starship group accordingly had long historical connection with CNC, and Danny Wang, who was the managing director of CNC before the Plaintiff joined CNC, was responsible for the appointment of the various companies of the Starship group as CNC’s GAs. Given the importance of GAs, it is in my judgment quite incredible CNC was not aware of the owners and individuals who controlled the GAs acting for CNC, and I find as a fact that CNC was well aware of the connections between Ng and Ong and the Starship group. I am fortified in my conclusion when Danny Wang acknowledged that when he met Ng and Ong of Star Navigation at a meeting in August 2007, he realised that he had probably met them before. Danny Wang confirmed when Star Navigation was appointed, he realised that it was a company in the Starship group, and that he had no difficulty in having another company of the Starship group to handle CNC’s SOC, “as long as they are bringing cargo to [CNC]”. Danny Wang also acknowledged that he knew that the Starship group “used to be, or may still be Zim’s agency”, and that he had discussed with Ng about his relationship with the Plaintiff and he remembered that Ng had told him that he and the Plaintiff had known each other for a long time and “used to work together at Zim or Gold Star”.

112. Given the historical and longstanding relationship between CNC and the Starship group, and CNC’s obvious knowledge of the people who owned and controlled the Starship group, I find it quite incredible for the Defendant to suggest that it did not know of these connections. If anything, as part of the due diligence process performed before the Defendant completed its acquisition of CNC, the Defendant must have obtained these information regarding CNC’s GAs which were companies of the Starship group. Salem was at pains to emphasise in his evidence that GAs were very important, and accordingly the Defendant must have reviewed the details of CNC’s GAs – who were the people behind them etc. – when they performed the due diligence. Salem acknowledged that CNC had provided the Defendant with all documentations regarding its GAs as part of its due diligence exercise. He further acknowledged that at the time of the acquisition of CNC, he “knew who all the CNC agents were as a result of the due diligence process”, and also “the details of those agents” as it was important for the Defendant to know them”.

113. And as far as CSA was concerned, the Defendant plainly knew this company as it had signed the CSA Consultancy Agreement with it. I cannot imagine how the Defendant would be prepared to sign the agreement with CSA if it did not know what this company was, who was behind it etc. The Defendant was a very substantial company and had the benefit of in house legal counsel, and I consider that I am justified to infer that the Defendant would not sign such an agreement blindly without having knowledge of who the counter-party was. Salem told me that the agreement was drafted by the Defendant’s legal counsel, possibly by Sioufi. Apart from Salem, who made the decision to enter into the CSA Consultancy Agreement (and subsequently terminating it after the Plaintiff left CNC), various other senior executives of the Defendant were involved, including Hans meurs (Regional Manager for Asia and a director of CNC), Billion, and Simon Assaf, the Senior Vice President of Administration and Regional Offices of the Defendant.

114. It must have been clear to the Defendant, from the very fact that the CSA Consultancy Agreement was signed to facilitate payment to the Plaintiff outside Taiwan, that the Plaintiff had connection with CSA, Ng and Mr Benny Suppiah (“Suppiah”, who was also the director and shareholder of CSA and Starship Agencies).

115. As pointed out above, Salem had instructed the Defendant to obtain a copy of the Zim’s writ (in January 2008), which had mentioned the connections between Ng and Suppiah with Starship Agencies. The Writ would have been reviewed by the Defendant’s management, and if the Defendant had truly considered that the Plaintiff was in breach of his fiduciary duties by failing to disclose such connections, it is difficult to see why the Defendant would have issued the letter of support for the Plaintiff in February 2008. The letter of support could not have been issued by the Defendant blindly, particularly after Zim had made serious allegations against the Plaintiff in the Writ filed in the Zim litigation.

116. I find that at all material times the Defendant was aware of the Plaintiff’s connection with the Starship group, and his relationship with Ng, Ong and Suppiah. On the evidence the Starship group had a strong presence in the industry and had had connection with both CNC and the Defendant before. The Plaintiff had had substantial experience in the shipping industry, had worked with Zim for a long time, and it rings hollow for the Defendant to complain about the Plaintiff’s connection with the Starship group and its owners and controllers. Indeed, in my judgment, the very reason why Salem was interested in getting the Plaintiff to take up the position of CEO of CNC was to tap his connections and experience in the industry, and those connections and experience were matters well known to the Defendant. I have no hesitation in rejecting this complaint. It seems to me that the complaint was only an afterthought put up to justify the Defendant’s failure or refusal to perform Clause 4 of the HOA.

117. There is no evidence – indeed no suggestion – that the Plaintiff has made any secret profits for himself. There is no question of any self-dealing, as the Plaintiff did not have any personal interest in Star Navigation, nor any interest in the transactions in question. There is also no conflict of interest, and no recognizable interests have been identified by the Defendant that could be said to be in conflict or potential conflict. The highest, as Mr Bartlett rightly pointed out, that the Defendant may put its case is that the Plaintiff had favoured his friends (Ng and Ong), but that, without more, is not enough to found a claim for conflict of interest. In any event, on my finding, the appointment of Star Navigation was made by the Plaintiff in the best interest of the Defendant as part of his initiative to increase CNC’s SOC business. The appointment was not made to favour Ng and Ong or their company (i.e. Star Navigation). Any allegation for conflict of interest in these circumstances cannot in my view get off the ground.

Wilful Misconduct

118. Having come to the conclusion that none of the allegations for breach of fiduciary duties levelled against the Plaintiff has been made out, I reject the Boston Deep Sea Defence.

119. I would add, for the sake of completeness, that in order for the Defendant to escape liability under Clause 4 of the HOA, it would not suffice for the Defendant merely to prove breach of duties by the Plaintiff. Clause 4 of the HOA requires the Defendant to establish “wilful misconduct” (no allegation of fraud is ever suggested by the Defendant) on the part of the Plaintiff.

120. “Wilful misconduct” entails the person accused of the same to have done something which he knew to be wrong, or he was aware that loss might result from his act and yet did not care whether loss would result or not. Sheer negligence – even gross or culpable negligence – is not wilful misconduct. “…[A] person wilfully misconduct himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail, or to omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure, omission regardless of the consequences”: see, TNT Global SPA v Denfleet International Ltd [2008] 1 All ER (Comm) 97.

121. Hence in order to prove wilful misconduct, not only must the Defendant prove that the Plaintiff had committed a wrong (such as a breach of fiduciary duties), it must also prove that the Plaintiff committed the wrong either intentionally or recklessly. Otherwise, the misconduct cannot be said to be “wilful”.

122. On my findings, the Plaintiff had not committed any wrong or engaged in any misconduct. Even if I am wrong on this, and contrary to my findings it has been shown that the Plaintiff had been in breach of some duties, there is in my judgment no sufficient proof that the Plaintiff committed the breach either intentionally or recklessly. There is accordingly no “wilful misconduct” proved against the Plaintiff.

Estoppel

123. I further hold, for reasons set out above, that before the Defendant terminated the Plaintiff’s employment, it was fully aware of the matters that it now relies upon in support of the Boston Deep Sea Defence. If and insofar as it is necessary, I hold that the Defendant is estopped from relying upon those matters to retrospectively justify the termination of the Plaintiff’s employment.

Quantum

124. The issues of quantum may be disposed of quickly.

125. On the issue whether the period of 3 years should be counted from 21 November 2006 or 12 April 2007, the answer, in my judgment, is clear: plainly the 3 years period should count from the date of the commencement of the Plaintiff’s employment by CNC, i.e. 12 April 2007, and the period would accordingly expire on 11 April 2010. The contention that the period should commence on 21 November (time of execution of the HOA) is illogical. As rightly noted by Mr Bartlett, the temporary employment with CMA Hong Kong might never have given rise to the employment by CNC if the acquisition had not succeeded. It could not have been the parties’ intention, on a fair construction of Clause 4 of the HOA, to have the amount of Cancellation Indemnity (being the compensation payable for early termination other than for cause of wilful misconduct or fraud) calculated by reference to a 3-year period that commenced before the CNC employment had even started.

126. On the issue whether the Cancellation Indemnity includes the Plaintiff’s entitlement to profit-sharing provided in Clause 8 of the HOA, the answer is also plain. The profit-sharing is an entitlement integral to the Plaintiff’s remuneration package. The evidence is also clear that the Plaintiff would not have accepted the offer of employment if the profit-sharing was not included as part of his remuneration package. I see no reason why Clause 4 should be construed as leaving out the profit-sharing entitlement as part of “the balance of the period remaining” payable under Clause 4. I accordingly hold that the Plaintiff is entitled to be paid his profit-sharing entitlement for the years 2007 to 2010. In this connection, I also accept the Plaintiff’s submission that the HOA makes no provision for pro rata attribution per month of annual profit.

127. On the issue as to how the net profits after tax are to be recognised for the purpose of computing the Plaintiff’s profits-sharing entitlement, I have no hesitation in holding that the net profits after tax is to be recognised by following the reporting standards under the Taiwan GAAP, and not those under the IFRS. As we are concerned with the net profits after tax of CNC, which is a Taiwan company, in my judgment the net profits after tax must be recognised applying the recognised Taiwan standard. CNC is subject to Taiwan law. There is no reason why its net profits after tax should be subject to adjustments under some reporting standards that are not recognised or applied in Taiwan.

128. On the issue of mitigation, I consider that it is an entire red herring. The amount payable by way of Cancellation Indemnity under Clause 4 is a liquidated sum. There is simply no room for the duty of mitigation to apply.

129. The Plaintiff’s solicitors have submitted a Revised Quantum Schedule dated 14 September 2012 setting out the quantum calculations for the Plaintiff’s claim. A copy of the Revised Quantum Schedule is attached to this Judgment. I accept the calculations set out therein are correct.

ORDER

130. I order that judgment be entered for the Plaintiff against the Defendant for the amounts set out in the Revised Quantum Schedule, in the total sum of US$2,289,025.22. I further order interest be paid at half judgment rate from the date of the Writ in this Action to the date of judgment, thereafter at judgment rate until payment.

131. I will make a costs order nisi for costs of this action to be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

132. It remains for me to thank both counsel for their helpful assistance to the Court.

	(H Wong, SC)
	Recorder of the Court of First Instance
	High Court

Mr Jeremy Bartlett, instructed by Boughton Peterson Yang Anderson, for the Plaintiff

Mr Nigel Kat, instructed by Herbert Smith Freehills, for the Defendant

PLAINTIFF’S REVISED QUANTUM SCHEDULE

(Revised following the production of the Plaintiff’s Re-Amended Writ of Summons and Statement of Claim pursuant to the Order of Recorder Horace Wong SC dated 3 September 2012 and the provision by the Defendant on 7 September 2012 of Cheng Lie Navigation Co. Ltd’s’s Financial Statements for the years ending 31 December 2009 and 31 December 2010)

1.	Remuneration for period 01/03/2008 to 13/03/2008
	Proportion of the monthly payment of US$20,000 accrued and due to the Plaintiff from the Defendant pursuant to clause 5 of the Head of Agreement (“HOA”) for the period 01/03/2008 to 13/03/2008 (paragraph 17(a) RASOC)
	13/31 days x US$20,000	US$8,387.10
2.	Remuneration for period 14/03/2008 to 11/04/2010
	Cancellation Indemnity due to the Plaintiff from the Defendant pursuant to clauses 4 and 5 of the HOA for the period 14/03/2008 (first day post termination) to 11/04/2010 (three years calculated from start of CNC employment on 12/04/2007), being the balance of the Contract Period specified in clause 3 of the HOA (paragraph 17(b) RASOC)
	24.95 months x US$29,166.66	US$727,708.17

3.	Profit share
	2.5% of net profit after tax for each fiscal year of CNC, capped at US$1 million per year, due to the Plaintiff from the Defendant pursuant to clauses 4 and 8 of the HOA (paragraphs 17(c) and 18 RASOC) being for the year 2007 already accrued and due and also the balance of the Contract Period specified in clause 3 of the HOA.

(i)	Year ending 31 December 2007
	Net profit of NT$421,421,000[1]
	2.5% of NT$421,421,000 equivalent to US$346,837.14	= NT$10,535,525	US$346,837.14
	(US$1 = NT$30.376*)
			Sub-total:	US$1,082,932.41
(ii)	Year ending 31 December 2008
	Net profit of NT$76,533,000[2]
		= NT$1,913,325
	2.5% of NT$76,533,000
	equivalent to US$62,988.05		US$62,988.05
	(US$1 = NT$30.376*)
(iii)	Year ending 31 December 2009
	Net profit of NT$428,811,000[3]
	2.5% of NT$428,811,000	= NT$10,720,275	US$352,919.25
	equivalent to US$352,919.25
	(US$1 = NT$30.376*)
(iv)	Year ending 31 December 2010
	Net profit of NT$960,107,000[4]
	2.5% of NT$960,107,000	= NT$24,002,675	US$790,185.51
	equivalent to US$790,185.51
	(US$1 = NT$30.376*)

	(*Exchange rate as at 27 June 2008, date of issue of Writ)
			TOTAL:	US$2,289,025.22
14 September 2012
BOUGHTON PETERSON YANG ANDERSON
Solicitors for the Plaintiff

[1] Trial Bundle Vol.C5/190/1399

[2] Trial Bundle Vol.C5/212/1525

[3] Trial Bundle Vol.C7/240-5/1769A-102

[4] Trial Bundle Vol.C7/240-6/1769A-158

85550-EN-2012-11-16

DAFNI IGAL v. CMA CGM SA

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HCA 1185/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1185 OF 2008

_____________

BETWEEN
	IGAL DAFNI	Plaintiff
and
	CMA CGM SA	Defendant

________________________

And

HCA 1429/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1429 OF 2012

________________________

BETWEEN
	DAFNI IGAL	Plaintiff
and
	CMA CGM SA	Defendant

_____________

(Consolidated pursuant to the Order of
Deputy High Court Judge Au-Yeung dated 8 August 2012)

Before: Mr Recorder H Wong SC in Chambers

Date of Hearing: 11 October 2012

Date of Decision: 22 October 2012

Date of Reasons for Decision: 16 November 2012

__________________________________

REASONS FOR DECISION

__________________________________

INTRODUCTION

1. On Day 8 of the trial the Defendant made an application to amend its Amended Defence and Counterclaim, and also to amend the Re-Amended Rejoinder. Although Defendant’s Counsel, Mr Nigel Kat, had mentioned on Day 6 of the trial that he intended to apply to make an application to amend, the amendments were not in fact provided to the Court until the morning of Day 8 of the trial. By that time, all the evidence of the factual witnesses of both parties had already been completed.

2. The proposed amendments, as they turned out, were quite different from what was previously indicated by Mr Kat orally to this Court. In particular, for the first time in this litigation, an allegation of illegality was made in respect of the agreement (i.e. the HOA referred to below) upon which the Plaintiff sued in this action.

3. By a decision notified to the parties on 22 October 2012 (“the Decision”), I ordered, inter alia, as follows:

(1) Leave be granted to the Defendant to amend paragraphs 26(A)(2)(d), 26(A)(3), 26(A)(7), 26(A)(13), 30(1) and 30(3) of the Amended Defence and Counterclaim as per the draft Re-Amended Defence and Counterclaim submitted to Court;
(2) All other proposed amendments (namely, the proposed amendments to paragraphs 4(9), 6(4), 8A, 27, 28A, 33, 34 and the Prayers) to the Amended Defence and Counterclaim are refused;
(3) Leave be granted to the Defendant to amend paragraph 11A of the Re-Amended Rejoinder as per the draft Re-Re-Amended Rejoinder submitted to Court;
(4) The other proposed amendments (namely, the proposed amendments to paragraph 11B) to the Re-Amended Rejoinder are refused;
(5) Costs of and incidental to the application for amendments be reserved, and to be dealt with at the hearing of final submissions.

4. I now give my reasons for the Decision.

BACKGROUND FACTS

5. I am acutely aware that the Decision is only a decision on an interlocutory application for an amendment of the pleadings. Although I have heard wide-ranging submissions from counsel on the law of illegality with more than 60 authorities cited to me, I do not think that it is necessary for me, in order to fairly dispose of the application and giving reasons for my decision thereon, to deal with all the submissions and authorities cited in detail. This is, of course, without any disrespect to Counsel, for whose helpful assistance I am grateful.

6. For the purpose of giving my reasons for the Decision, it is not necessary for me to making any findings on the facts in dispute between the parties. I have heard evidence from witnesses during the trial and have been referred to many documents in the trial bundles, but I have not yet heard the closing submissions of the parties. I will, for the purpose of giving my reasons for the Decision, set out some of the background facts relevant only to the amendment application.

7. The Plaintiff is a Singaporean citizen and was born in Israel. The Defendant (“Defendant” or “CMA CGM”) is incorporated in France and is a very large international shipping company.

8. The Plaintiff’s working career has been spent in the shipping industry. He had previously worked in another shipping company called Zim Integrated Shipping Service Limited (“Zim”), which I understand is an Israeli national shipping line, and also its Hong Kong based subsidiary, a company called Gold Star Line Limited. The Plaintiff resigned from Zim in about May 2006.

9. After resigning from Zim the Plaintiff entered into negotiation with one Mr Farid Salem (“Salem”) of the Defendant, who was interested in engaging the Plaintiff to work for one Cheng Lie Navigation Co. Ltd. (“CNC”), a Taiwanese shipping company which the Defendant was planning to acquire at the time.

10. On 21 November 2006, the Plaintiff and the Defendant entered into a Heads of Agreement (“HOA”), which provided for the Defendant to procure the employment of the Plaintiff by CNC (codenamed “Cristo” in the HOA) as its Managing Director. Salem signed the HOA on behalf of the Defendant. The HOA provided for the contract period to be “3 years with 6 months trial period for each party”, and that the employment was to commence “[a]s from the day CMA CGM make final irrevocable bid to Cristo shareholders”. As Clauses 4, 5, 8, 10 and 13 are particularly relevant to the consideration of the present application (and also to the issues in the trial), I will set them out in full:

“4. Cancellation Indemnity
If after the 6 months trial period, CMA CGM or Cristo terminates the contract for any reason whatsoever, CMA CGM will pay the balance of the period remaining in installments of 3 months each, except if the termination is for reasons of willful misconduct or fraud on behalf of [the Plaintiff], or two consecutive years of losses.
Should [the Plaintiff] decide to leave before the end of the contract period, there will be non competition clause equal to six months.
5. Remuneration
350,000 USD gross per year payable over 14 months in equal installments.
Part of this amount will be paid in Taipei and part will be paid to [the Plaintiff] in a foreign account, by Cristo.
8. Profit Sharing
2.5% of net profit after tax for each fiscal year of Cristo, capped at USD1 million per year. If listing, the parties may consider to substitute the profit sharing scheme by a stock option at terms to be agreed later.
10. Temporary
The parties agree that [the Plaintiff] will dedicate his time as from November 21, 2006 to CMA CGM, in CMA CGM office in Hong Kong, for preparation of the bid to acquire Cristo or any other business CMA CGM may ask.
[The Plaintiff] will be remunerated a lump sum amount of USD30,000 payable for each month.
13. Subject to employment contract being drawn, agreed and signed.”

11. Pursuant to Clause 10 of the HOA, the Plaintiff was in fact temporarily employed to work in the Defendant’s offices in Hong Kong and an employment contract dated 21 November 2006 (“Temporary Employment Contract”) was entered into between CGM & ANL (Hong Kong) Shipping Agencies Ltd (“CMA Hong Kong”) and the Plaintiff. During the time when the Plaintiff was employed by CMA Hong Kong, the Plaintiff acted as its “Special Project Manager” and received payment of a monthly salary from CMA Hong Kong in the sum of HK$77,800 (US$10,000). That amount, however, was only part of the Plaintiff’s total monthly remuneration of US$30,000 as evidenced by a memorandum dated 7 December 2006 of the Defendant, where it was provided that the balance of US$20,000 per month was to be paid by the Defendant to the Plaintiff by direct transfer to the Plaintiff’s bank account in Singapore. That memorandum was signed by the Salem on behalf of the Defendant.

12. In regard to the payment of US$20,000 per month made by the Defendant, the Defendant had signed a consultancy agreement with one Charter Shipping Agencies (S) PTE Ltd (“CSA”) dated 21 November 2006 (“CSA Consultancy Agreement”), under which CSA would purportedly provide certain services to the Defendant in consideration of a monthly payment of US$20,000. Although it is plain from the evidence before me that no such services were in fact provided by CSA to the Defendant, CSA would invoice the Defendant every month for the sum of US$20,000. The Defendant, however, never in fact paid CSA on its invoices. The only US$20,000 paid by the Defendant every month was not paid by CSA, but to the Plaintiff (by direct transfer of the sum to his Singapore bank account). It is to be noted that the Plaintiff was not a party to the CSA Consultancy Agreement.

13. The Plaintiff’s temporary employment with CMA Hong Kong lasted until 30 April 2007 when the Temporary Employment Contract was terminated, following the successful acquisition by the Defendant of CNC in March 2007. An employment contract dated 12 April 2007 (“CNC Employment Contract”) was entered into between the Plaintiff and CNC. The CNC Employment Contract provided, inter alia, the agreement “shall commence on April 12, 2007 and shall have a term of three (3) years duration” and that the “salary to be paid to the Employee shall be US$10,000 per month. Taiwan Tax shall be paid by the Employee”.

14. In accordance with the terms of the CNC Employment Contract, CNC paid a monthly salary of US$10,000 to the Plaintiff in Taiwan. The Plaintiff continued to receive payment of US$20,000 from the Defendant through direct transfer to his bank account in Singapore.

15. In December 2007 Zim commenced proceedings in Singapore against the Plaintiff making some serious allegations against him for breach of fiduciary duties (“the Zim litigation”). The Zim litigation was ultimately resolved in favour of the Plaintiff by a judgment of the Singapore High Court, which dismissed all the claims of Zim. But that was more than 2 years later as the Singapore judgment was only delivered in January 2010.

16. In the meantime, the Plaintiff’s employment with CNC was brought to a pre-mature end in March 2008. The circumstances of the termination of the Plaintiff’s employment are very much in dispute. It is the Defendant’s case that the Plaintiff voluntarily resigned from his employment and that he tendered his resignation - initially orally - to the Chairman of the Defendant, Mr Saade (“Saade”), at a meeting held in the midnight of 12 March 2008 at a room in the Evergreen Hotel Taipei. On the other hand, it is the Plaintiff’s case that at that meeting, it was Saade who informed the Plaintiff that, in the light of the adverse publicity generated by the Zim litigation and the embarrassment it caused to the Defendant, the Plaintiff’s employment with CNC would have to be terminated. Saade also indicated that, for the benefit of all, the termination could be dressed up as a resignation by the Plaintiff, but the Plaintiff would be paid in full all his contractual entitlements under the HOA.

17. It is not necessary for me, at this stage and for the purpose of giving reasons for the Decision, to resolve the dispute of facts between the parties, particularly as to what happened at the midnight meeting. As said, although I have heard evidence I have yet to hear the closing submissions of the parties, and I will no doubt make the necessary findings of fact when giving judgment in the action itself. Suffice to say that the Defendant subsequently refused to make payment to the Plaintiff as demanded by him and the Plaintiff commenced the present action to claim for what he alleged to be the entitlements payable to him in accordance with paragraph 4 of HOA. Such entitlements, according to the Plaintiff, include his accrued (but unpaid) remuneration (pursuant to Clause 5 of the HOA), and also the profit share provided for in Clause 8 of the HOA.

AMENDMENTS OF PLEADINGS: PRINCIPLES

18. The principles upon which the court proceed when faced with an application to amend the pleadings are stipulated in Order 20 of the Rules of the High Court. There is no dispute as to the applicable legal principles in relation to amendments. The Court may at any stage of the proceedings allow any party to amend their pleadings in any manner as may be just: O.20 r.5(1). The Court may also allow amendments to be made for the purpose of determining the real question in controversy between the parties: O.20 r.8(1). However, O.20 r.8(1A) provides for an overriding requirement that the Court shall not order a pleading to be amended unless it is of the opinion that the order “is necessary either for disposing fairly of the cause or matter or for saving costs.”

19. Generally speaking, the Court would allow amendments made for the purpose of determining the real question in controversy between the parties. Leave is readily granted to enable such amendments to be made before trial unless it can be shown that the new claim based on the proposed amendments is bound to fail: see, Natamon Protpakon v Citibank NA[2009] 1 HKLRD 455, 463. However, while amendment can be made at any stage of the proceedings, the later the stage the more scrutiny the application will be subject to. This was so before the Civil Justice Reform (“CJR”) but all the more so now, after the High Court Rules have been amended to expressly state that the underlying objectives of the Rules are, inter alia, “to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court”, “to ensure that a case is dealt with as expeditiously as is reasonably practicable”, and “to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings” (see O.1A r.1). Plainly, the later the application (particularly one that is made in the course, or towards the conclusion, of a trial, as in the present case), the greater the likelihood that it might delay the conclusion of the trial, and prejudice the underlying objectives of procedural economy, cost-effectiveness and expedition. This of course does not mean that all late applications for amendments must be rejected. It only means that the later the application, the greater the scrutiny that should be given.

20. There is also a clear difference between allowing amendments to clarify the issue in dispute and those that set up a new claim or defence for the first time. This difference is particularly important in respect of late amendments. An application made at trial that seeks to introduce a wholly new cause of action or defence at a late stage is more likely to cause prejudice, delay and wastage of costs. The courts will not readily accede to such an application especially when the new claim or defence could have been raised and the need for amendments was abundantly apparently before the trial began: Tang Kam Wah v Tang Ming Yat [2003] 1 HKC 532, at 541E – 542I per Stock JA (as he then was).

21. The addition of r.8(1A) to O.20 of the Rules of High Court (L.N. 152 of 2008), requiring the Court to refuse amendments that are not necessary either for the fair disposal of the cause or matter or for saving costs, is plainly consistent with the underlying objectives set out in r.1A of the Rules. The burden is upon the applicant to satisfy the Court that the amendments are indeed necessary for the fair disposal of the cause or matter, or for saving costs. In general, whether prejudice (not compensatable by costs) is likely to be caused by allowing the amendments is an important consideration in the exercise of the Court’s discretion, as the presence of such prejudice is directly related to the question of “fairness” by which the Court disposes of a cause or matter. But the mere absence of prejudice (in the sense of prejudice not compensatable by costs) does not mean that the amendments must be allowed. For example, the prospect of costs wasted in having to adjourn a trial because of the amendments will militate against granting leave. As the editors of Hong Kong Civil Procedure 2012 rightly observed (at 20/8/12):

“It is not the practice today, as it was in the past, invariably to allow a defence which is different from that pleaded to be raised by amendment at the end of the trial even on terms that an adjournment is granted and that the defendant pays all the costs thrown away: the grant of an amendment by the trial judge is a matter for his discretion to assess where justice lies, having regard to many factors … since justice cannot always be measured by money.”

22. The editors further observed, at 20/8/11 of Hong Kong Civil Procedure 2012, that “[p]rior to the Civil Justice Reform, the court has power to allow the amendment or re-amendment of pleadings after the conclusion of the evidence and even after the closing speeches of counsel, where no injustice or prejudice would be occasioned to either party and where it is necessary to formulate the real issues between the parties which did not appear from the original pleadings (Smith v Baron, The Times, February 1, 1991, CA). However, with the implementation of the Civil Justice Reform and the introduction of r.8(1A), the court is to exercise this power sparingly”. Sparingly or not, granting leave to amend is ultimately an exercise of discretion by the Court, which discretion is to be exercised having regard to all the circumstances of the case but subject always to the overriding requirement stipulated under O.20 r.8(1A) of the Rules of High Court.

THE RESPONSIVE AND MISCELLANEOUS AMENDMENTS

23. Mr Kat has provided me with a draft Re-Amended Defence and Counterclaim and a draft Re-Re-Amended Rejoinder in which the amendments sought are set out (collectively “the Amendments”).

24. The Amendments may be broadly classified into 3 categories:

(a) those amendments (“the Responsive Amendments”) which are purely responsive to the amendments made by the Plaintiff to his pleadings (for which leave was earlier granted by me at the beginning of the trial). The Responsive Amendments relate to the amendments sought to be made to paragraphs 30(1), 30(3) of the draft Re-Amended Defence and Counterclaim and paragraph 11A of the draft Re-Re- Amended Rejoinder;
(b) those amendments which have the effect of introducing a new defence based on illegality (“the Illegality Amendments”). The Illegality Amendments relate to paragraphs 4(9), 6(4), 8A, 27, 28A, 33, 34 and the Prayers to the draft Re-Amended Defence and Counterclaim, and paragraph 11B of the draft Re-Re-Amended Rejoinder;
(c) various miscellaneous amendments (“the Miscellaneous Amendments”) that seek to tidy-up the Defendant’s pleadings and clarify issues, including matters which have been explored (without objection by the Plaintiff) in the evidence but which are technically not pleaded in the draft Re-Amended Defence and Counterclaim. The Miscellaneous Amendments relate to paragraphs 26(A)(2)(d), 26(A)(3), 26(A)(7), and 26(A)(13) of the draft Re-Amended Defence and Counterclaim.

25. The Plaintiff rightly did not take any objection on the Responsive Amendments. I can see no reason why I should not allow them.

26. As to the Miscellaneous Amendments, although Mr Bartlett, counsel for the Plaintiff, indicated that he objected to them, in neither his written or oral submissions has he made any serious attempt to maintain his objection. The subject-matters of these amendments have been explored in the evidence (most of them are in fact covered by the witness statements) without any objection by Mr Bartlett, and the Plaintiff cannot really (nor has he) complain as having been taken by surprise, despite the lateness of the application. The Miscellaneous Amendments merely seek to clarify the issues and to tidy up the Amended Defence and Counterclaim inasmuch as the same have omitted to expressly plead the matters before. While a lack of prejudice is not conclusive of the exercise of discretion in favour of the applicant for amendment, in the present case I am satisfied that allowing the Miscellaneous Amendments is necessary for the fair disposal of the cause or matter in this action in that it would facilitate the determination of the real controversy of the issues in this case without causing any prejudice to the Plaintiff, and without causing any disproportionate increase or wastage of costs. I have therefore allowed the Miscellaneous Amendments.

THE ILLEGALITY AMENDMENTS

27. The amendments that Mr Bartlett opposed with much more vigor are the Illegality Amendments. The Defendant wished to plead, by way of amendments, that the provisions (in clause 5 of the HOA) for payment of part of the agreed remuneration in a foreign account and the arrangements made in respect of the CSA Consultancy Agreement were agreed at the Plaintiff’s request “in order to avoid the incidence of Hong Kong and Taiwan tax” on payments made to him pursuant to clause 5 of the HOA. For that reason, the HOA was either an illegal contract, or alternatively a contract void and/or unenforceable for reasons of public policy. The Defendant also wants to say that by reason of the illegality of the HOA, if (which the Defendant denies) the Plaintiff has any entitlement in law or equity to remuneration or other payments, such entitlement is limited to a claim for quantum meruit in respect of the work done by him for the Defendant during the period of his actual service only.

28. The Defendant also, by way of amendments, seeks to abandon its original counterclaim and replace in its stead a claim in restitution to recover money paid under the HOA which was alleged to be void by reasons of illegality. I note for the record that Mr Kat has confirmed to me in the course of his submissions on the amendment application that irrespective of the success (or otherwise) of his application, the original counterclaim would be abandoned by the Defendant.

The alleged duty of the Court to carry out investigation on unpleaded illegality

29. Before I give the reasons for the exercise of my discretion, I would deal with a matter raised by Mr Kat which, if correct, may have a significant impact upon the exercise of my discretion.

30. Mr Kat argues that where an issue of illegality is properly brought to the Court’s attention, the Court is duty-bound to investigate into the illegality whether the same is pleaded or not. He relies on North Western Salt Company Ltd v Electrolytic Alkaline Company Ltd [1914] AC 461 in support of this argument. Mr Kat submits that as a prima facie issue of illegality has now been raised, it is this Court’s duty to allow investigation into the issue even if illegality has not been pleaded. If Mr Kat is right in this contention, it would have a significant bearing on the exercise of my discretion; for there is no reason why – if the issue of illegality would have to be dealt with in this action anyway – I should refuse to allow the Defendant to plead the issue properly to enable the investigation to be carried out in a more structured manner by reference to the pleadings. In other words, if the issue of illegality would have to be dealt with even without pleadings, there is no reason why the Court should refuse an offer by the Defendant to properly plead the same.

31. I cannot accept Mr Kat’s arguments. In my judgment, the authorities are clear that it is only in the case where the relevant contract is ex facie illegal – or if it is not, the Court is nonetheless satisfied that all the relevant facts and circumstances bearing on the question of illegality are fully known to it – that the Court becomes entitled to decide that the contract is unenforceable by reason of illegality even though the issue of illegality has not been pleaded by either party. As Lord Moulton pointed out in the case of North Western Salt Company Ltd v Electrolytic Alkaline Company Ltd (supra, at p.476), the position:

“…… may be shortly put as follows: if the contract and its setting be fully before the Court it must pronounce on the legality of the transaction. But it may not do so if the contract be not ex facie illegal, and it has before it only a part of the setting, which it is not entitled to take, as against the plaintiffs, as fairly representing the whole setting.”

32. The proper approach which the court should adopt in a case where evidence of illegality is before the court but has not been relied on in the pleaded defence is that set out in the judgment of Devlin J inEdler v Auerbach[1950] 1 QB 359, 371, cited by Potter LJ in the case of Pickering v McConville [2003] EWCA Civ 554, at §18, as follows:

“First that, where a contract is ex facie illegal, the court will not enforce it whether the illegality is pleaded or not. Secondly, that where, as here, the contract is not ex facie illegal, evidence of extraneous circumstances tending to show that it has an illegal object should not be admitted unless the circumstances relied on are pleaded. Thirdly, that where unpleaded facts, which taken by themselves show an illegal object, have been revealed in evidence (because perhaps no objection was raised or because they are adduced for some other purpose) the court should not act on them unless it is satisfied that the whole of the relevant circumstances are before it but, fourthly, that where the court is satisfied that all the relevant facts are before it and it can see clearly from them that the contract had an illegal object, it may not enforce the contract whether the facts are pleaded or not.”

33. It is hence clear that unless a contract is ex facie illegal, evidence of its illegality is not admissible unless the circumstances or facts relied on have been pleaded. In situations where unpleaded facts are revealed or become known to the Court (for example, through evidence admitted for some other purpose) which tend to show illegality, the Court is only entitled to act on them if it is satisfied that all the relevant facts bearing on the perceived illegality are known to it. No finding of illegality should be made on unpleaded facts unless the Court is sure that it has all the relevant facts before it to enable it to see clearly that the contract is in fact tainted with illegality. The following reminder of Devlin J, given in the Auerbach case (at p.371) in regard to the danger for making a finding of illegality on unpleaded facts is worth repeating:

“… the court must be satisfied of the illegality of the transaction; that means that it must be satisfied that it knows all the relevant facts. On any issue which is raised on the pleadings the court may safely assume that the relevant facts will be brought before it by one side or the other: where notice or the issue is not given on the pleadings, there is a danger that that assumption may break down, and the decision in North Western Salt Company Ltd v Electrolytic Alkaline Company Ltdis a warning against overlooking that danger.”

34. As is often pointed out, in our adversarial system the Court is not on an “independent truth-finding mission” (to use the words of Mr Bartlett in his submissions) but is there to resolve the dispute between the parties in accordance with justice and procedural fairness. Our rules of pleadings provide an important means for safeguarding procedural fairness. I accept Mr Bartlett’s submission that it cannot be the case that merely because a party has raised an allegation of illegality the Court’s function is thereby radically altered to that of an inquisitorial tribunal as opposed to one that resolve disputes following the normal adversarial procedure. Where the contract concerned is ex facie illegal, the illegality concerned, as Lord Moulton pointed out in the Electrolytic Alkaline Companycase (see p. 475 of the judgment of Lord Moulton), is a question of law and the Court may safely conclude on the face of the contract that it is unenforceable for being illegal or in contravention of public policy. Where the contract is not ex facie illegal, and the Court is not satisfied that it has all the relevant facts bearing on an allegation of illegality before it, it is highly dangerous for the Court to make findings of illegality; and in my judgment it is equally dangerous for it to abdicate its function as a Court of adjudication working within an adversarial system and take on the role of an independent investigator by embarking on an investigation based on unpleaded facts. Illegality and breach of public policy are (except in cases where the contract concerned is ex facie illegal) issues that are often facts-sensitive, and the relevant facts have to be pleaded to enable proper findings of facts to be made (c.f. Chao San San v WorldportIndustrial Limited (unrep.) CACV 158/2002, 21 March 2003, at §9 per Yuen JA).

35. For reasons above, I am unable to accept Mr Kat’s contention. Far from having a duty to carry out an investigation, this Court should not allow evidence to be adduced for the purpose of showing that the contract in question is unenforceable by reason of illegality unless the alleged illegality – and the facts in support of the same – have been pleaded. Accordingly it is wrong for Mr Kat to suggest that as the Court is bound to investigate into the question of illegality in any event, it should readily exercise its discretion to allow the pleading of the same, however late are the amendments.

No evidence of illegality in the present case

36. In the present case, the HOA is not ex facie illegal. Clause 5 of the HOA merely provides for an arrangement whereby part of the Plaintiff’s remuneration was to be paid in Taipei and part to his overseas account. There is nothing ex facie unlawful for such an arrangement. It is not illegal per se to split the remuneration in such a way that part of it is payable in one jurisdiction and part in another. No authority has been produced by Mr Kat to show that such an arrangement is, without more, unlawful.

37. Insofar as it is argued that the performance of the HOA is unlawful, there is nothing in the evidence to show any such illegal performance. There is no evidence at all to show, for example, that any tax evasion has occurred in Taiwan. Merely because part of the Plaintiff’s remuneration was paid in Singapore does not mean that any illegality in terms of tax evasion has taken place, whether in Taiwan or in any other jurisdiction. There is no evidence of any breach of Taiwan tax law. Indeed the tax returns of the Plaintiff are not in evidence and there is nothing at all before me to show the tax treatment of the Plaintiff’s income in Taiwan, or in other jurisdictions. This is not surprising, as until the present application was made (by which time all the factual evidence had been completed), the issue of illegality was never raised and the Plaintiff had obviously prepared the case without this issue in mind. If the allegation of illegality had been pleaded before trial, the Plaintiff could have, depending on the facts pleaded in support of the alleged illegality, called witnesses or adduce evidence to address the allegation. One would expect that the line of cross-examination of the Defendant’s witnesses, particularly Salem (who was the person who negotiated the HOA with the Plaintiff, including his remuneration package), may have been quite different. As it were, Mr Bartlett had not explored this issue with the Defendant’s witnesses, and by the time the application for amendments was made by Mr Kat, these witnesses had finished their evidence and were gone.

38. The Illegality Amendments sought to allege that the arrangement provided for in Clause 5 of the HOA (by virtue of which part of the Plaintiff’s remuneration was to be paid in Taiwan and part to his overseas account) and the arrangements in relation to the CSA Consultancy Agreement were agreed in order to avoid the incidence of Hong Kong and Taiwan tax.

39. The reference to the CSA Consultancy Agreement may be shortly disposed of. The evidence at trial was quite clear that the CSA Consultancy Agreement was never intended to take effect in accordance with its terms – in particular it was never intended that CSA would provide the services purportedly stipulated in that agreement to the Defendant, and it was never intended that the Defendant would pay for any such services. So it might be argued that the CSA Consultancy Agreement was in fact a sham. However, merely because the CSA Consultancy Agreement might be a sham would not take the matter of illegality any further. The agreement itself is not ex facie illegal and being a sham is not necessarily the equivalent of illegality. What is more important, however, is that the Plaintiff himself was not a party to the CSA Consultancy Agreement – it was an agreement made between the Defendant and CSA. The Plaintiff does not, and has no need to, rely upon the CSA Consultancy Agreement to make his claims in the present case. As the Plaintiff has no need to rely upon the CSA Consultancy Agreement to make his present claim, on the well-known authority of Tinsley v Milligan [1994] 1 AC 340, his right to claim is not in any way affected by the illegality or otherwise of the CSA Consultancy Agreement.

40. Tinsley v Milligan is a House of Lords decision and is widely recognized as the leading case on illegality, and as Mr Bartlett rightly pointed out, it is a case that may be viewed as providing a unifying theory for illegality based on the “reliance principle” – if a claimant does not have to rely on the illegality in order to make his claim, his claim may be entertained. Although the case has not been universally followed in some common law jurisdictions (notably in Australia where the High Court of Australia has not followed the House of Lords decision in Nelson v Nelson (1995) 184 CLR 538), the majority judgment of Tinsley v Milligan has been followed in Hong Kong by our Court of Appeal in Lau Kwai Kiu v Bian Xintian [2012] 2 HKLRD 954.

41. Insofar as it is alleged that the provisions of the HOA, or the performance thereof, were in contravention of Taiwan law, Mr Kat faces the added difficulty that there is no evidence at all of any Taiwan law, the breach of which may supply the illegality that Mr Kat requires for his new plea of illegality. Foreign laws are facts and have to be proved by evidence. Mr Kat, however, prays in aid of the presumption that in the absence of evidence, foreign law is presumed to be the same as Hong Kong law.

Should Taiwan law be presumed the same as Hong Kong law?

42. Although the precise juridical basis of the presumption has been questioned by judges and commentators alike (i.e. on whether the content of foreign law is presumed to be the same as domestic law or that the court is simply applying the law of the forum), it is undeniable that there exists such a presumption. The court, however, need not apply the presumption in every case: Dicey, Morris & Collins (14^th Ed), at 9-002.

43. Mr Kat relies upon the case of Balmoral Group Ltd v Borealis UK Ltd [2006] 2 CLC 220. In that case, it was held (at 347E-F) that the presumption may not be applicable where:

(1) it is not in the interests of justice to apply the same;
(2) the foreign law is not based on the common law;
(3) the domestic law alters the common law;
(4) it is inherently improbable that foreign law is the same; and
(5) fairness requires it.

44. Mr Kat submits that the present case is an appropriate case to apply the presumption on the criteria set out in Balmoral. In my judgment, however, it is quite possible that Taiwan, being a civil law jurisdiction, may have tax laws which are quite different from Hong Kong: see Shaker v Al-Bedrawi [2003] Ch 350, at 373C. I am also quite satisfied that it is inherently improbable that Taiwan tax law is the same as Hong Kong tax law given (i) the jurisprudential difference of the two jurisdictions and (ii) the highly specific nature of taxation law: see Damberg v Damberg (2001) 52 NSWLR 492, where Heydon JA held in the New Zealand Court of Appeal (at §162 ) that “Taxation law cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system.”

45. It has also been held that in order for the presumption to apply, the domestic legislation concerned must have some degree of universality. In Shaker v Al-Bedrawi[2003] Ch 350, the English Court of Appeal held that certain accounting provisions under the Companies Act were not applicable to a Pennsylvanian company because (i) the Companies Act only applies to companies incorporated under it and (ii) it cannot be expected of the Pennsylvanian company to comply with the accounting provisions under the Companies Act. Peter Gibson LJ thus said, at 372G-H:

“The starting point must be that not every English statute is to be applied to a transaction because a party has either chosen not to prove or failed to prove the law which is otherwise applicable. On the face of it, Part VIII is inapplicable to a company not registered under the Companies Act. Thus the judge was correct to seek to satisfy himself that that Part VIII did not represent some merely domestic rule of English law.”

46. Similar sentiment was also expressed by the Federal Court of Canada in The Ship “Mercury Bell” v Amosin (1986) 27 DLR (4^th) 641, at §10, where the Federal Court said:

“What has appeared constant to me, however, in reading the cases, is the reluctance of the judges to dispose of litigation involving foreign people and foreign law on the basis of provisions of our legislation peculiar to local situations or linked to local conditions or establishing regulatory requirements. Such reluctance recognizes a distinction between substantive provisions of a general character and others of a localized or regulatory character … This English jurisprudential rule that, in the absence of proof of the foreign law governing the case, the judge will apply the law of the forum should not and cannot be seen, it seems to me, as a pure abandonment of the rule of conflict, as if a rule of conflict was so unimportant that its application could be left to the whim of the parties. In fact, it is not a genuine rule of conflict; the situation is in no way comparable to that which exists in the case of renvoi when the foreign law refers back to the law of the forum. It is a rule strictly related to the incidence of evidence. The court does not repudiate the premise that the case is governed by and has to be decided on the basis of the foreign law, but simply says that in so far as it is formally aware the foreign law is similar to its own law. It is … a pure rule of convenience, and one which, it seems to me, can be rationally acceptable only when limited to provisions of the law potentially having some degree of universality.” (emphasis added)

47. In my judgment, tax statutes are not the type of laws that one could rationally assume to have any significant degree of universality. Tax statutes, being specific laws enacted for the purpose of taxation, are generally not grounded upon universal principles. They are laws which are likely to vary significantly according to local economic, financial, and societal conditions. There is no rational basis to assume that the specific tax statutes of one country are the same as another, particularly where the legal systems of the two countries are based upon widely different jurisprudential philosophies (such as that marked the difference between common law and civil law jurisdictions).

48. In my judgment, the presumption that foreign law is the same as Hong Kong law does not apply in the present context where one is concerned with the question whether there is any evidence of Taiwan tax law that have been breached to give rise to the illegality alleged.

49. This being the case, there is presently no evidence at all to support a defence based on illegality arising from breach of Taiwan tax law.

50. Mr Kat further argues, referring to the period when the Plaintiff was temporarily employed by CMA Hong Kong, that there must have been a breach of Hong Kong tax law during that period of employment as part of the Plaintiff’s salary income was paid to him outside Hong Kong. In the absence of any evidence of the tax treatment of the Plaintiff’s income during that time I am not sure that that must be the case but in my judgment this is in any event quite irrelevant. Nothing in this action turns on the temporary employment by CMA Hong Kong and the Plaintiff does not need to rely on that employment, or on Clause 10 of the HOA (or the performance thereof), to make his claim in this action. By virtue of the reliance principle of Tinsley v Milligan (supra), whatever illegality there was in relation to the Plaintiff’s temporary employment with CMA Hong Kong, it cannot affect the Plaintiff’s right to pursue his claim in the present case. I therefore reject Mr Kat’s argument in this regard as well.

51. By reason of the matters mentioned above, I am of the view that there is presently no evidence, or no sufficient evidence, to support a prima facie case of illegality. The factual evidence had already been completed by the time the application was made. Unless the evidence is to be re-opened and witnesses recalled, the present state of evidence is such that the defence of illegality cannot even get off the ground.

Prejudice to the Plaintiff

52. I am satisfied that there will be serious prejudice caused to the Plaintiff if the Illegality Amendments are permitted at this stage of the trial. In the context of the allegations made in the Illegality Amendments, the issue of illegality, if allowed to be pleaded now, may raise many issues of facts that have not hitherto been explored in the evidence. The Plaintiff will have to amend its Reply and Defence to Counterclaim to raise these issues of facts, but it is likely that the following matters, which have not been the subject of close attention (or any attention at all) by the parties when they prepared their evidence for the trial, may become the focus of their evidence:

(1) the full circumstances surrounding the negotiation and discussions between the Plaintiff and Salem on Clause 5 of the HOA;
(2) the full circumstances surrounding the negotiation and discussions between the Plaintiff and Salem concerning the $20,000 tax free arrangement;
(3) the full circumstances surrounding the negotiation and discussions between the Defendant and CSA concerning the CSA Consultancy Agreement;
(4) the circumstances surrounding the payment by the Defendant directed to the Plaintiff (hence bypassing CSA and the CSA Consultancy Agreement);
(5) what did the Plaintiff declare to the tax authorities in the various jurisdictions, including in particular Hong Kong and Taiwan?
(6) what did the Defendant declare to the tax authorities?
(7) what is the relevant tax and employment law in the relevant jurisdictions?
(8) by the law of which jurisdiction is the alleged illegality to be assessed?
(9) if indeed there was illegality, whether the parties were in pari delicto?

53. Plainly, to allow the Plaintiff to address these issues properly without causing injustice to him would mean that he must be given a fair opportunity to amend his own pleadings, file new witness statements, and if necessary seek discovery, administer interrogatories, and seek further and better particulars on the allegations made by the Defendant. Witnesses who have given evidence at the trial may have to be recalled and cross-examined afresh. There is even the possibility for new witnesses to be called or even subpoenaed (e.g. Mr Asaf who handled the negotiations under Salem’s supervision). Expert evidence is likely to be required for foreign tax laws relating to the alleged illegality. The trial, which was about to be concluded, will have to be adjourned with much delay, costs, time and expenses. This is the kind of consequences that do not sit well with the underlying objectives set out in O.1A r.1 (and I am required by O.1A r.2 to give effect to those underlying objectives in the exercise of my power or discretion in granting leave).

54. The Plaintiff has a legitimate expectation in seeing that the trial, which he has prepared on the basis of the existing pleadings, will be completed expeditiously without delay. The stress of the Damocles’ sword of an unfinished or impending litigation hanging over one’s head is not measurable in monetary terms – and the stress of a prolonged litigation is no less for a plaintiff as for a defendant.

Exercise of Discretion

55. In the exercise of my discretion, I have taken the following into account:

(1) The lateness with which this application was brought is extraordinary and essentially after the close of the evidence;
(2) The absence of any or any satisfactory explanation for the delay in the making of the application. The allegation of illegality requires no new information that only came to light at the trial;
(3) The Illegality Amendments sought to introduce a brand new case based on illegality rather than merely to clear up issues already before the court. In fact the original counterclaim of the Defendant alleges a breach of an implied term of the contract now alleges to be illegal and unenforceable;
(4) The amendment of the counterclaim involves, in effect, the withdrawal by the Defendant of its admission that the HOA was a valid contract between the parties, and that a good and convincing explanation for such a withdrawal has not been provided by the Defendant;
(5) The HOA is not ex facie illegal, and there is presently no evidence or no sufficient evidence to support even a prima facie case of illegality;
(6) If the Illegality Amendments are to be allowed at this stage, it is likely that the trial will have to be adjourned, possibly for a lengthy period, with the inevitable consequences of increased costs, time and expenses;
(7) There will undoubtedly be serious prejudice to the Plaintiff in allowing the amendments which cannot be fully compensated by an award for costs; and
(8) The fact that the Plaintiff has a legitimate expectation that this litigation, which has been hanging over his head for a long time, would be completed as scheduled and with reasonable expedition. Even if the Plaintiff’s prejudice is otherwise compensatable by costs, it is not just to impose on the Plaintiff the stress of a possibly prolonged trial and the spectre of a lengthy delay.

56. In the circumstances, I am of the view that the factors that weigh against the exercise of my discretion in the Defendant’s favor are overwhelming and I have accordingly exercised my discretion to disallow the Illegality Amendments.

57. I thank counsel for the comprehensive and helpful submissions and their assistance rendered to the Court.

	(H Wong, SC)
	Recorder of the Court of First Instance High Court

Mr Jeremy Bartlett, instructed by Boughton Peterson Yang Anderson, for the Plaintiff

Mr Nigel Kat, instructed by Herbert Smith Freehills, for the Defendant