Gold Pond Ltd v. Shiu Chi Kai, Aman t/a Galant Engineering Co

HCA003103/1997

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 23 October 1997

Date of Delivery of Judgment: 23 October 1997

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JUDGMENT

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1. This is an appeal by the Defendant from the Order of the Master entering summary judgment against the Defendant. The Plaintiff's claim is simple, namely that the Plaintiff sold in November and December 1996 industrial diesel oil in the total value of $1,423,741.25 pursuant to two purchase orders of the Defendant and two invoices of the Plaintiff. According to the Plaintiff, the goods were delivered on the instruction of the Defendant to Dongguan factories in China. The Defendant did not pay and upon the Plaintiff pressing for payment, some 6 cheques were given to the Plaintiff by the Defendant (totally some $1,278,600). The Plaintiff however returned the 6 Cheques and sued for the total amount owing under the 2 Invoices.

2. There is no issue that the Plaintiff had delivered the diesel oil to Dongguan factories in China. What is at issue is whether the diesel oil delivered in China was diesel oil purchased by the Defendant from the Plaintiff pursuant to the Defendant's Purchase Orders or whether the diesel oil were those purchased by the Defendant from some one else but which the Defendant asked the Plaintiff to transport to Dongguan factories. I have no doubt that the story told by the Defendant is nonsense, wholly incapable of belief and that what happened was that the Defendant purchased the goods from the Plaintiff but simply did not want to pay and is now trying to find any excuse or reason to avoid payment.

3. The case of the Plaintiff is well supported by commercial reality and contemporaneous documents. The first and most important piece of evidence is the two Purchase Orders, prepared, chopped and signed by the Defendant asking for the purchase supply of the diesel oil in question and for the Plaintiff to deliver such diesel oil to Dongguan in quantities and on dates as clearly specified therein. There is no suggestion that these two Purchase Orders were cancelled or revoked by the Defendant.

4. The second important category of documents is the Delivery Orders issued by the Defendant to the Plaintiff directing the Plaintiff to deliver on specified dates specified quantities of diesel oil to the specified recipient in Dongguan which Delivery Orders were executed by the Plaintiff with the Delivery Order on each occasion being signed by the recipient of the delivery acknowledging receipt of such delivery. It is significant to note that there was no indication in the Delivery Order or in any other document produced by the Defendant as to when and where and from whom the Plaintiff was supposed to be collecting the diesel oil, which suggests that all the diesel oil, the subject of the large numbers of the relevant Delivery Orders were delivered pursuant to the sales by the Plaintiff to the Defendant rather than as transportation by the Plaintiff as carrier of goods, purchased by the Defendant from some third party.

5. The third important category of document is the Plaintiff's Invoices which were acknowledged to be received at the time by the Defendant from the Plaintiff. There is no evidence from the Defendant that upon receipt of the first Invoice or the second Invoice a month later, the Defendant took any step to protest against the receipt of the two Invoices or to ask the Plaintiff why the Invoices were issued as the Plaintiff had sold nothing to the Defendant if the Defendant story is correct. What is even more significant for me is that if the Plaintiff had not sold and delivered these diesel oil then how did it come about that the Plaintiff sent these 2 Invoices to the Defendant for payment.

6. The fourth important category of document, if the Defendant story has any substance, is the document relating to contract between the parties for the transportation of the goods. This category of document is missing. Surely there would be an agreement as to the how much the Defendant would pay for such transportation but there is simply no evidence put before the court on this. The absence of such evidence suggests to me that the transportation allegation has no substance.

7. The fifth important category of document is the demand letter from the Plaintiff's solicitors which was never answered. It does not make sense for the Plaintiff to be making a demand which it knew it was not entitled to make through its solicitors and it makes even less sense for the Defendant to do nothing about that solicitors demand letter.

8. Finally the last category of documents I place importance on is the 6 cheques. For me the evidence of the Plaintiff on the 6 Cheques makes sense and is believable. The story of the Defendant on the 6 Cheques defies belief. Further, why should there be 6 post-dated cheques in 6 amounts as opposed to only one cheque.

9. Notwithstanding the strong arguments advanced by Mr. Lee on behalf of the Defendant, the case of the Defendant as put before the Court is not capable of belief. For reasons stated above, I have no doubt that there is no bona fide defence to the claim of the Plaintiff. The Master was quite right in making the Order. The Appeal of the Defendant must be dismissed with costs.

Representation:

Mr. James Lee instructed by Messrs Joseph Chu, C.P. Cheung & Co. for the Defendant/Appellant

Mr. Alan Ng Man Sang instructed by Messrs Wong & Chu for the Plaintiff/Respondent