Essex Monitor (HK) Co. Ltd.V. Hecny Shipping Ltd.
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DCCJ011403/2000 DCCJ11403/2000 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 11403 OF 2000 -----------------------
---------------------- Coram: H.H. Judge Li in chambers Date of Hearing: 7 March 2001 Date of Handing Down Judgment: 24 April 2001 ________________ Judgment ________________ On 7 March 2001, I gave judgment for the Plaintiff on its Order 14 summons. I said detailed reasons for my decision would be given on request. In fact in my view the Defendant's case was patently untenable ab initio and those representing the Defendant would have realized that had they considered their client's case with the barest objectivity. Anyway, there being a request made on 16 March 2001 on behalf of the Defendant in this regard, here are my reasons. 2.The facts of the case averred by the Defendant in its Defence are as follow:-
3.It is immediately apparent that, as admitted by the Defendant, $90,370.80 was received by the Defendant from the Plaintiff as deposit for the potential extra costs involved for return of the container of goods. The $90,370.80 was not meant to pay the Defendant's own service charges but rather to cover the Defendant's disbursements to be incurred. Obviously, the $90,370.80 must be refunded if no extra costs have been incurred. 4.The Defendant pleads in the Counterclaim that :-
5.It is common ground that the container of goods had been detained in Brazil and never left Brazil for return to Hong Kong. Because Brazilian customs never released the container, it defies common sense to believe that charge for customs release (US$450) and charge of pick up ($60) had been incurred. The defendant does not explain what for or why the broker handling charge (US$150), storage (US$4,100) and demurrage (US$4,641) were incurred. It does not appear that these last three items of alleged expenses were incurred before Brazilian customs made the decision to detain the container of goods. Since the Brazilian customs never released the container of goods, there is absolutely no reason to believe that, for example, demurrage (which is a shipping charge for delay) was payable or incurable. 6.In fact, the truth about the extra costs allegedly incurred is revealed in two emails produced by the Defendant (hence all the time in the possession and knowledge of the Defendant) which are reproduced below:-
7.Because of the time difference and that part of email(i) is missing, it is not clear which of the two emails preceded the other. However, it is abundantly clear in the Defendant's email that full refund may be made. The extra charges alleged by the Defendant to have been incurred appear from email(i) to be based on a breakdown by the Defendant's agent in Brazil. But the items in the breakdown, as I have said, are highly questionable. It is incredible that demurrage would be incurred for delaying a ship when Brazilian customs refused to release the container which apparently was already on land (also at the same time incurring storage charge). In any event, the amounts for storage and demurrage as stated by the agent do not tally with the Defendant's counterclaim. The Defendant can be gullible or charitable towards its agent's claim, but not at the expense of the Plaintiff. In a nutshell, there was no credible evidence before me to support the Defendant's Defence and Counterclaim that extra costs had been incurred. 8.The Defendant's own evidence says that the $90,370.80 was an advance, a deposit. There bring no valid or lawful reason at all for the Defendant to hold on to this sum any more, the Plaintiff was hence entitled to judgment for full refund (with interest and legal costs) of course.
Representation: Mr. Bernard Mak instructed by Messrs Gallant Y.T. Ho & Co. for the Plaintiff. Miss Josephine Chow instructed by Messrs H.H. Lau & Co. for the Defendant. |
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