Winco Paper Products Co Ltd v. Leung Tat

HCA000273/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 273 OF 1973

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Coram: Trainor, J.

Date of Judgment: 28th March, 1974.

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JUDGMENT

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1. The plaintiffs in these proceedings claim sums of money alleged to be due by the defendant for goods sold and delivered on various dates in the year 1972 to a total of $29,879.96. The details are set out in the plaintiffs' statement of claim and are indicated by reference to seven invoice numbers. The defendant entered a Defence in which he alleged that part of the goods had been paid for, and that another part, the principal part of the claim, was subject to a counterclaim by reason of the goods supplied by the plaintiffs being of an inferior quality, unmerchantable and unfit for the purposes for which they were acquired.

2. There was no denial by the defendant that he had received the goods the subject of the various invoices, but he maintained. that he had paid for those the subject of first three invoices. Initially he gave a cheque which when presented was dishonoured but, the defendant pleaded he redeemed the dishonoured cheque by cash payments to the plaintiffs at their factory.

3. He further alleged in his Defence that other goods to the value of $1,508 were not supplied him at all but to a firm by the name of Messrs. Tin Lee Paper Product Company of which he and a Madam Cheung Chun are partners. The plaintiffs in their reply alleged that this lady is in fact the wife of the defendant.

4. A further item, for which the plaintiffs claimed the amount of $4,104.41, was admitted by the defendant in his Defence as being due to the plaintiff.

5. The case came on for hearing this morning and the defendant did not appear. It was pointed out to the court that the defendant had, on the 22nd of March of this year, dispensed with the services of his legal advisers and had notified the court to that effect on that date. A copy of the warning list was furnished to the defendant's legal advisers on or about the 20th of March but there is nothing before the court to indicate as to whether or not they notified their former client. However, the plaintiffs, on being informed yesterday afternoon that the case was to appear before me this morning did everything that they could to inform the defendant. I have an affirmation before me that a notice informing him of this morning's hearing was posted on the door of a house, the address of which he had given in his notice dispensing with his solicitor as being the address for service.

6. I decided to proceed with these proceedings in the absence of the defendant. This of course does not prevent him from making an application to set aside the judgment should he so wish.

7. Mr. Lee, of Counsel, who appeared for the plaintiffs submitted that all that remained for the plaintiff to establish to obtain judgment was one item of their but which he alleged he had redeemed. claim: the item in respect of which the defendant had given the cheque which was dishonoured With respect to the other items, he pointed cut that the defendant had admitted receiving the goods but pleaded various grounds on which his liability to pay for them had ceased. Mr. Lee submitted the admission shifted the onus to the defendant and in his absence the plaintiffs were entitled to judgment as claimed. In this respect I agreed with the submission of counsel.

8. There was one item in the plaintiffs' claim which was waived on their behalf.

9. Evidence was given before me from which I am satisfied that the goods alleged to have been paid for firstly by the dishonoured cheque, the first three items claimed for, and then by cash redeeming it have not in fact been paid for. I therefore order judgment for the plaintiff for the value of those goods, $3,350.

10. With regard to the other claims, I order judgment for the plaintiffs with regard to the fifth, sixth and seventh items claimed. There is a credit in favour of the defendant of $3,045 and that credit together with the sum waived in respect of the fourth item claimed, $1,020, results in a balance in favour of the plaintiffs in the sum of $25,814.96 and judgment for this amount is awarded to the plaintiffs accordingly. I have been asked to award interest at the rate of 8% from the date of is sue of the writ. The plaintiffs are entitled to this and are awarded it. They are also entitled to their costs. As the defendant has not appeared to pursue his counterclaim, the counterclaim is dismissed and with costs.

Representation:

Martin Lee (Maurice Lee & Co.) for Plaintiff.

Defendant absent.