Poosaala Ram Prasad and Another v. Yuen Kwok Kit and Another

HCA001278/2001

HCA 1278/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1278 OF 2001

Coram: Hon Sakhrani J in Chambers

Date of Hearing: 30 September 2003

Date of Judgment: 30 September 2003

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J U D G M E N T

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1.This is an appeal from the order of Master Levy given on 6 May 2003 whereby she ordered, inter alia, that the statement of claim and the amended reply be struck out as disclosing no reasonable cause of action. She also ordered that the action be dismissed and that the costs of the action including the application be to the 1st and the 2nd defendants.

2.The plaintiffs are Mr. Poosaala Ram Prasad and Mr. Mohamed Rashid Al.Kiyumi. They sued the defendants for breach of contract. As the pleadings show and as is discerned from the lengthy document called the amended reply, there was an agency agreement between Oman Sea Products Co. LLC and the 2nd defendant whereby dry abalone was sold to the 2nd defendant as agent. The statement of claim claims the sum of US$109,695 plus return of 26 kilograms of dry abalone or the equivalent amount in US$13,780. There is also a claim for interest and expenses which are particularised in the statement of claim.

3.The short point taken by the defendants is that there is no contractual relationship between the 2nd defendant and the plaintiffs. The contract is one between the 2nd defendant and Oman Sea Products Co. LLC. Mr. Yip has submitted that this shows clearly that the contract was between the limited company of Oman Sea Products Co. LLC, which I understand stands for limited liability company, and the 2nd defendant. The 1st plaintiff in his submissions has accepted that Oman Sea Products Co. LLC is a limited liability company. That being so, it seems to me that the master was correct to strike out the statement of claim as the proper party to sue is Oman Sea Products Co. LLC and not the individual plaintiffs. Furthermore, there is no pleaded cause of action on a contract against the 1st defendant. The agency agreement was one between Oman Sea Products Co. LLC and the 2nd defendant. In the circumstances, in my view, the master was correct to strike out the statement of claim and the amended reply and to dismiss the action with costs.

4.The appeal is dismissed. On the application for costs, it seems to me that costs should follow the event. As the appeal has been dismissed, costs of the appeal should be paid by the 1st plaintiff to the defendants, such costs to be taxed if not agreed.

Representation:

1st plaintiff, in person, present

Mr. Arthur C.H. Yip instructed by Messrs Nie & Company for the 1st and 2nd defendants