Wo on Metal Co Ltd v. Wah Tai Lung Iron Works Engineering Co Ltd

HCA008074/1993

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Coram: The Hon. Mr Justice WAUNG in Court

Date of hearing: 23 April 1997

Date of delivery of Judgment: 23 April 1997

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JUDGMENT

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1. This is a claim for goods sold and delivered made by the Plaintiff Wo On Metal Company Limited against the Defendant Wah Tai Lung Iron Works Engineering Company Limited. The Defendant is absent today at the trial despite the efforts made by the solicitors for the Plaintiff to serve the letter on the Defendant's office yesterday afternoon, and despite efforts made by both the Plaintiff's solicitors and my clerk to notify the Defendant of the hearing today by several telephone calls made yesterday and this morning.

2. The case of the Plaintiff is simple, namely that of the 56 invoices pleaded in the Statement of Claim that there remained outstanding and unpaid the sum of $247,596.60. Three defences have been raised by the Defendant in its defence.

3. The first defence is a defence that in respect of eight invoices, there were short deliveries thereby causing the Defendant to lose some $10,000-odd in total.

4. I am satisfied from the evidence adduced by Miss Miranda Chan and the documentary evidence, that it is quite clear the Defendant had signed the appropriate satisfactory receipts in relation to seven invoices. In relation to one invoice although there was no signed receipt produced I am satisfied that the correct quantities have been delivered and therefore there is no substance in the defence of short delivery.

5. The second defence is a defence of an agreement made in October whereby the Plaintiff is alleged to have agreed to a 10 per cent reduction for all goods supplied to the Defendant destined for the Chinese customer. There is neither documentary nor oral evidence, nor even sufficient material put before the Court to substantiate such a defence. I just cannot believe, if there was such a discount globally agreed as early as October, that the subsequent conduct of the Defendant can reconcile with this or can possibly explain why no steps had been taken to pursue that 10 per cent discount agreement.

6. The main time taken at the trial today was spent on the issue of 4 mm defective goods covered by four invoices. The explanation and the evidence that was given by Miss Chan before me today satisfied me that the defence is not a valid defence.

7. I accept the evidence of Miss Chan. She appears to me a business-like, well organised, efficient and reliable witness. She said that after delivery of the first lot on the 29th October, there was a complaint and she went the next day to Shenzhen with the Defendant. They looked at the goods together and then the next day when they were back in Hong Kong they all went to the Plaintiff's supplier and there and then it was agreed by the supplier of the Plaintiff to give the Plaintiff a discount. She, in turn, on behalf of the Plaintiff also granted the appropriate discount to the Defendant, and therefore the invoice shown on page 56 of the bundle reflects this discount which had been agreed and given, and the price was in fact reduced from what would have been the then market price of $2,650 per ton to $2,550 per ton which translates into the price per piece stated in the invoice. That is her evidence on the first lot.

8. In relation to the subsequent lots that are covered by invoices at page 81 dated 3rd November 1992, invoice at page 92 dated 13th November 1992 and invoice at page 179 dated the 3rd December 1992, her evidence, which I accept is that all the 4 mm goods sold under those invoices were sub-standard goods and therefore the prices reflect these substandard goods and that the Defendant knew that very well and he came back again and again for further orders of these goods at below market prices. There is therefore no substance to this allegation of defective goods which had caused loss. They were repeatedly ordered and used. I accept her evidence and there is really no reliable evidence to the contrary.

9. I am therefore satisfied on the totality of the evidence that the claim of the Plaintiff succeeds. Accordingly judgment must be given in favour of the Plaintiff in the sum of $247,596.60 with interest thereon from the date of the Writ until judgment at prime plus 2 per cent. The Counterclaim is dismissed. The Plaintiff shall also have the costs of the action.

Representation:

Mr. Don M.L.So instructed by Messrs Chu, Chan & Tsu for the Plaintiff

The Defendant in person (absent)