Edward Wong & Co Ltd v. Shing Fook Woollen Sweaters Knitting Factory (A Firm)
Read the full judgment text of HCA 1948/1973 on BabelCite. This High Court CFI judgment.
1. This is an assessment of damages pursuant to Interlocutory Judgment entered on the 7th August 1973 in default of appearance.
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HCA001948/1973
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Silke in Chambers. Date of Judgment: 16th October, 1973. ----------------- DECISION ----------------- 1. This is an assessment of damages pursuant to Interlocutory Judgment entered on the 7th August 1973 in default of appearance. 2. The plaintiff is Edward Wong & Co. Ltd. (called hereafter the plaintiff company) and the defendant Shing Fook Woollen Sweaters Knitting Factory (called hereafter the "defendant firm"). 3. The parties entered into a contract - the first amended contract - on the 16th March 1973 for the delivery by the defendant firm to the plaintiff company of 50,000 1bs of 2/32 SMM 100% Acrylic yarn, Raw White in Hank at a price of USO.91 cents per 1b C.I.F. Hong Kong. The shipments were to be 20,000 1bs in March 1973 and 30,000 1bs in April 1973. 4. A letter ...(illegible) credit was opened in respect of this and all charges were to plaintiff company's account. 5. It should be explained at this point that I use the word "amended" in relation to the contract as there was apparently an earlier contract in January 1973 which was superseded by the contract dated 16th March 1973 and headed "Sale note S-73-1 amend". This also applies to what I term the "second amended contract". 6. Under the first contract there was delivered only 20,000 1bs of the yarn leaving a shortfall of 30,000 1bs. 7. There was a further contract - the second amended contract - also dated 16th March 1973 for the delivery by the defendant firm of 60,000 1bs of the same yarn to the plaintiff company. There were to be three shipments at varying prices
8. Again the plaintiff company was to open a letter of credit with all charges being to the plaintiff company's account. Under this second contract the only delivery made was the 20,000 1bs at US$1.24. There was therefore a shortfall of 40,000 1bs. 9. In the statement of claim the contract price for the shortfall of the first contract was $139,230 based on a rate of exchange of US$1.00 = HK$5.10. The market price of such goods is stated to be HK$5.75 per 1b giving a total of $172,500.00. The loss under this contract is stated to be $33,270.00. 10. Similarly the contract price for the shortfall of the second contract: (a) was stated to be $134,946. The market price of such goods is stated to be $172,500 at $5.75 per 1b. giving a total of loss claimed at $37,554.00. (b) was stated to be $48,450.00 - the market price $57,500 at $5.75 per 1b. giving a total loss claimed as $9,050.00. Total loss claimed under the second contract $46,604.00. 11. At the hearing of the assessment the consequential loss of the charges in respect of the opening of the letters of credit were also claimed. In respect of the first amended contract two letters of credit were opened one for 20,000 1bs which were delivered and one for 20,000 1bs undelivered. In respect of the latter the charges were $246.35. No letter was opened for the further undelivered 10,000 1bs. the price of which was to be paid against delivery. 12. In respect of the second amended contract the charges for the ...(illegible) relating to three lots of poundage. 13. As the plaintiff claimed in the alternative damages to be assessed by the Registrar it is argued that these are properly claimed now. 14. It was further stated in evidence, I have not had the benefit of any argument on this, that the total claim for losses excluding the letter of credit charges, should be now $125,254.00. This was on the basis of a price of $6.80 per 1b. for the undelivered portion of the contract. The witness, William En-Hon Kao, said in evidence that the market price mentioned in the pleading was in fact the market price at the time but that few people either bought or sold at this price. I am not therefore clear as to what was intended by the phrase "market price". His company approached the two other firms in Hong Kong selling such yarn and received from Kian Dai Wools Co. Ltd. on the 15th June 1973 a quote for the yarn, but dyed in hanks at $7.20 per 1b ex godown and again on the 20th July 1973 a quote of $8.00 per 1b. also dyed in hank. 15. On the 28th June 1973 the plaintiff company bought from Man Cheong Knitting Factory Ltd. 29,600 1bs. of the yarn, of similar type to that ordered from the defendant firm, at a price of $5.85 H.K. a total of $173,160.00. He tells me that to dye the yarn costs approximately $1.20 per 1b. which amount should be deducted from the dyed prices quoted from Kian Dai Wools. 16. Bearing in mind that the latest date for delivery under the first and second amended contracts was May the market price quoted in the pleading, and confirmed to an extent by the evidence, seems to me fair and reasonable. 17. Now what in fact is the quantum of loss? I accept that the letter of credit charges on the undelivered goods are damages which flow directly from the breach and I would allow them at a total of $943.22. For the rest the defendant company is clearly in breach of its ...(illegible) has made no effort to supply the shortfall. They did not appear though notice of the assessment was served upon them. I am not prepared to go further than the $5.75 price per 1b. and therefore assess the damages at $79,874.00 together with $943.22 giving a total of $80,817.22 and the costs of this action and of the assessment. 18. Dated this the 16th day of October, 1973.
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