Rockshing Industrial Ltd v. Au Yeung Cheung t/a Lead Guide Printing Co

DCCJ002952/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2952 OF 1981

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BETWEEN

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Coram: H.H. Judge Cruden in Chambers

Date: 21 May 1982

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JUDGMENT

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1. In this action the plaintiff claimed damages and other relief arising from an alleged overpayment on the delivery of only 3,000 boxes under a contract for the supply of 10,000 boxes and in failing to deliver a fu ther 10,000 boxes under a subsequent contract. The defendant denied these allegations alleging that all 10,000 boxes under the first contract had been delivered but only 3,000 were accepted while under the second contract all 10,000 boxes had wrongly been rejected. The defendant further counterclaimed for $5,500 being the price for the boxes under the second contract; he having been paid in full for the 10,000 boxes under the first contract.

2. In my judgment in the action delivered on 19th February, 1982 I held that all 20,000 boxes had been delivered in tems of the contracts to the plaintiff and judgment was given on the claim in favour of the defendant. The defendant also obtained judgment on the counterclaim for the $5,500. I also found as a fact that after the non-acceptance of the boxes the defendant stored them for a time but later some were either dumped or destroyed.

3. The plaintiff now applies pursuant to Section 53 of the District Court Ordinance, Cap.336 for a review of my judgment to enable in particular fresh evidence to be taken "from the defendant."

4. If the application were granted there is no certainty that fresh evidence "from the defendant'' would be taken. For the application is the plaintiff's and the plaintiff can neither call the defendant nor compel the defendant to give fresh evidence. However, I am prepared to treat the application as one simply to call fresh evidence and not dispose of it on the narrow ground that the plaintiff, as a matter of law, could not call the defendant as a witness.

5. Section 53 expressly provides that one of the statutory purposes in allowing a case to be reopened, is to enable fresh evidence to be taken. So clearly there is jurisdiction to allow fresh evidence to be taken.

6. From the affidavit in support of the application and the plaintiff's submissions on the application it appears that after judgment the plaintiff paid the $5,500 in satisfaction of the sum due on the counterclaim. Thereafter the plaintiff sought delivery of the remaining boxes but has only been able to obtain 6,700 thereof. From correspondence exhibited to the plaintiff's affidavit I note that the defendant through his solicitors informed the plaintiff that the balance of 7,000 boxes from the first order had been thrown away because of storage problems.  As to the remaining 10,000 under the second order 3,000 were still stored in another factory and 5 days were given to the plaintiff to take delivery. Apparently it was from this source that 6,700 boxes have been recovered.

7. It is on the basis of these post-judgment events that the plaintiff wishes to call fresh evidence. The relevance of the fresh evidence, according to the plaintiff, would be that it supports the plaintiff 's evidence at the hearing that the boxes were never manufactured still less delivered.

8. It is obvious at once that the fresh evidence sought to be adduced is not of the kind which is usually particularised by an applicant wishing to bring fresh evidence. For the evidence would solely relate to events which occurred after judgment. So this is not a case where the fresh evidence existed at the date of the hearing but was not adduced because it was not then known to the plaintiff or, if known, for then other good cause was not adduced.

9. Where the fresh evidence existed at the date of the hearing the position is clear and well settled. I accept that the principles to be followed are those collected in "The Supreme Court Practice 1979 - Part 1", 59/10/6 at page 896 and in particular the judgment of Lord Loreburn L.C. in Brown v. Dean (1910) A C. 373. But on this application the fresh evidence sought to be adduced simply did not exist at the date of the hearing. It could not therefore have been called and Brown v. Dean is of no direct assistance.

10. I have not previously had an application under Section 53 based on post-judgment developments and I therefore asked Counsel for both parties if they knew of any authority where fresh evidence, which had not existed at the date of the hearing, could be adduced after a case was reopened under Section 53. Neither Counsel could cite any such authority. There is however, some analogy between a review and an appeal. Both involve a reconsideration of a prior judgment. On an appeal consideration may be given in terms of Rules of Supreme Court, Order 59, Rule 10(2) to "evidence as to matters which have occurred after the date of the trial or hearing." However, this exceptional power has always been exercised with restraint. To refer again to "The Supreme Court Practice 1979" Part 1 at page 898, 59/10/8:

"But, in order not to disturb the principle that there should be finality in litigation the change must substantially affect a basic assumption made at the trial; the matter is one of degree."

11. The delivery dates for the two lots of boxes were in April and August 1980. It was agreed at the trial that delivery of 3,000 of the 10,000 boxes in the first order was made and accepted. In relation to the second order of 10,000 boxes I found at the trial that delivery had been tendered but rejected. Before coming to those findings at the trial, which took place on 18th February 1982, I had heard evidence that while the unaccepted 17,000 boxes were for a period stored by the defendant some had sinoebeen thrown out or otherwise disposed of after they had not been accepted by the plaintiff. So I had come to a finding that all 20,000 boxes had been manufactured, before arriving at my final judgment. There was no allegation that the unaccepted balance of 17,000 were still in the possession of the defendant at the date of the hearing. For the purpose of this application I accept that prima facie only 6,700 have been uplifted by the plaintiff since judgment and that it is unable to obtain the remaining balance.

12. That fact, in my view, does not substantially affect my basic finding at the hearing that the 20,000 boxes had been manufactured. Accordingly the fresh evidence, sought to be adduced, is not sufficient to outweigh the competing principle that there should be a finality to litigation.

13. The application to reopen the hearing under Section 53 is therefore refused. If necessary I shall hear Counsel as to costs on the application.

DATED this 21st day of May, 1982.