Companion Building Material Co Ltd v. Lee Lai Ha t/a Great China Building Material Co

Case No.HCA 1327/1974

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA001327/1974

IN THE SUPREME COURT OF HONG KONG

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Original Jurisdiction

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1974 No. 1327

Between:	COMPANION BUILDING MATERIAL COMPANY LIMITED	Plaintiff,
	and
	LEE LAI HA TRADING AS GREAT CHINA BUILDING MATERIAL COMPANY	Defendant.

Coram: Mr. Registrar Barnes.

Date of Judgment: 28th day of August, 1974.

(Mr. J. Chang, Philip K.H. Wong & Co., Solicitors for the Plaintiff; Defendant in person unrepresented).

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ORDER 14 SUMMONS

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DECISION:

1. The Plaintiff's claim against the Defendant is for $22,500.00 being the price of goods sold and delivered. The Defendant entered an appearance on 8th June, 1974 and the Plaintiff took out a summons applying for judgment under Order 14, R.S.C. The Defendant, after being served with the summons and verifying affidavit, filed an affirmation on 2nd July, 1974 in which she alleges a breach of warranty on the part of the Plaintiff and claims damages for loss of profits to the extent of $8,100.00.

2. The Plaintiff, by answering affidavits, has attacked the factual basis of the Defendant's defence and has attempted to show that the Defendant's acceptance of the goods negates the Defendant's defence. In this connection section 55 of the Sale of Goods Ordinance (Cap. 26) is relevant. That section (insofar as it is material for present purposes) provides as follows:-

"55.

(1)

Where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not, by reason only of such breach of warranty, entitled to reject the goods; but he may -

	(a)	set up against the seller the breach of warranty in diminution or extinction of the price; or
	(b)	maintain an action against the seller for damages for the breach of warranty.

(4)

"The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage."

3. On the face of it, therefore, the Defendant has pleaded a good defence by way of set-off and counterclaim. Her affidavit is not completely satisfactory in the sense that it does not descend to particulars as to the extent of the set-off but it does appear that she is claiming a set-off in extinction of the price. It may well be that the Plaintiff can demonstrate that her defence has no foundation in fact. But, no matter how strongly the Court may anticipate on an Order 14 application that the matter will be decided in the Plaintiff's favour, once a triable issue appears, "it must order a trial". (vide Powszechay Bank etc. v. Paros, [1932] 2 K.B. 353, per Greer, L.J., at p. 359).

4. In the circumstances, therefore, I must give the Defendant unconditional leave to defend.

Accordingly, I order as follows:-

	The Defendant may defend the action.
	Defence to be filed within 14 days from the date hereof.
	Reply, if any, to be filed within 14 days thereafter.
	Mutual discover on oath within 14 days after close of pleadings.
	Inspection 7 days thereafter.
	To be set down for trial before a judge without a jury 30 days after inspection.
	Estimated time for trial 2 dup
	Costs in the cause.
	Dated this the 28th day of August, 1974.

	(E.C. Barnes)
	Acting Assistant Registrar

Representation:

(Mr. J. Chang, Philip K.H. Wong & Co., Solicitors for the Plaintiff; Defendant in person unrepresented).