Read the full judgment text of HCCT 19/2013 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 12 December 2016 before Mr Recorder Anthony Houghton SC.
Property law — conversion — construction contract — hire and sale of plant and equipment — retention of title clause — oral agreements and cancellations — contractual restrictions on plant — liability of employee in tort — quantum of damages. The plaintiff, a Japanese company, supplied special double walled steel casings used for pile removal to a subcontractor SNE engaged by the 1st defendant on an MTRC project in Hong Kong. The defendants used casings retained on site after termination of SNE’s subcontract without plaintiff’s consent. The court found on balance that a sale agreement existed between plaintiff and SNE including a retention of title clause not fully performed, later orally cancelled reverting to rental. The plaintiff failed to prove 8 casings remained on site at termination; 4 casings remained and were converted by defendants. Contractual provisions under main and subcontract did not extinguish plaintiff’s right to possession. The 2nd defendant, a project manager, was held personally liable for conversion due to active participation in the wrongful retention. The defendants’ counterclaim for storage costs failed. Damages for lost rental and service payments were awarded but aggravated/exemplary damages were denied. Interest and costs were granted in favour of the plaintiff.
Legal issues: Retention of title clause · Cancellation of the sale · Number of casings on site at termination · Liability for casings lost underground · Conversion of casings · Effect of subcontract and main contract on possession rights · Application of section 27(2) Sale of Goods Ordinance · Liability of the 2nd defendant
Outcome: The plaintiff’s claim for conversion and detention succeeded in respect of 4 casings; the 2nd defendant held liable personally. The defendants’ counterclaim was dismissed. No aggravated or exemplary damages awarded.
Cited by 1 case