Suityoursele, Ltd and Another v. Everfast Trading Co Ltd

HCA002248/1982

BETWEEN:-

Coram: The Honourable Mr. Justice Jackson-Lipkin in Court

Date: 21st June, 1983 at 3.53 p.m.

Appearances: Sammy Lee for the Plaintiffs. K.K. Pang for the Defendant.

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JUDGMENT

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1. In this action the Plaintiffs sue for breach of a written contract made between the 2nd Plaintiff and the Defendant on 23rd March, 1981 for a thousand Chinese-made 100% silk blouses with Peter Pan collars, one thousand two hundred Chinese-made 100% silk blouses tied at the throat with two ribbons to form a bow tie, and nine hundred ladies' cardigans covered with beads - I think a better description would be women's cardigans!

2. The principal questions that arose for my decision are these: Was this a contract between Pacific Star Trading Co. Ltd. and Everfast Trading Co. Ltd. simpliciter, or was it a contract between Pacific Star Trading Co. Ltd. as agent for a disclosed principal, namely Suityourself Ltd., and with Everfast? To decide that lay not in the documents, but in the credibility of the witnesses whom I have seen, studied and heard.

3. That I was able to study the witnesses and hearken to the evidence was due to the generosity of the Registrar, who allowed me, a civil Judge, to have a shorthand writer! Otherwise I would have been reduced to a mere scribbler, unable to look at the witnesses, and handicapped in my assessment of credibility.

4. The second question that arose was: What was the true date for delivery?

5. The third question that arose depended on the second. Having regard to the fact that the blouses were not available for shipment until at least 15th December, 1981and the cardigans were not available for shipment until about 16th October, 1981, was there a breach of the contract which entitled a Plaintiff or the Plaintiffs to damages?

6. And then there was the question of what damages should be awarded. The amended Defence contains a Counterclaim, but Mr. Pang has, very properly, told me, with the propriety for which the whole of the conduct of this case is notable, that there is absolutely no evidence upon which I could find for the Defendant on the counterclaim. He is quite right.

7. The defence is at variance with the Defendant's witness at almost every point. The only witness for the defence was Mr. Wei Chun-yee, and what he told me contradicted practically every paragraph in the Defence. But that in itself does not mean that I must disregard his evidence, or hold it to be unworthy of credibility.

8. The first witness for the Plaintiffs was a Mr. Lawrence Kaffel. I should say once that I thought him a frank and truthful witness, albeit somebody who seemed quite incapable of distinguishing between fact and what other people had told him. In coming to my conclusion in this case, I have had to disregard very large portions of Mr. Kaffel's evidence, because he was merely reciting what he thought had happened, what somebody else had told him had happened, (and that somebody else had not been called to support those parts of the evidence). It is quite common with businessment:  there is nothing reprehensible about it; it just makes the Judge's task unenviable. But I wish to make it quite clear that I do realise that a large part of his evidence is of no weight because where he has said what A or B told him, A or B has not substantiated it, so I have disregarded those parts in coming to my conclusion. Otherwise I accept his evidence without hesitation.

9. A strange gentleman, Mr. William Foo, gave evidence. He seems to be a successful businessman, but, if he conducts his business in the way he gave evidence, I am not sure how he has managed to be so successful. One thing about him, however, shone clearly though everything he said, and that was that he was basically an honest, straightforward man, doing his best to give me the true facts. And, I unhesitatingly accept the factual parts of his evidence. Once again, I record that I disregard those parts of his evidence where he has said what somebody else told him and that has not been corroborates.

10. The third witness was Miss Ada Lee. I found her evidence most helpful. She was frank, straightforward, and careful, and I noted with particular care her reactions to questions, which assisted me to some extent in assessing the weight of waht she said. I gave it great weight.

11. Mr. Wei, on the other hand, was a person whose evidence I found it well-nigh impossible to accept, with the exception of a few phrases here and there which I have accepted, and I have indicated those in the course of Counsel's addresses to me. I will, however, mention one or two in a few moments.

12. I wish to make it quite clear that I am not branding Mr. Wei as an untruthful man, save in relation to the events of 1980, and, even there, it may well be that he is not an untruthful man; it is just that he has a large number of customers, a large number of customers from England, possibly from Britain and from Europe, and he really can not remember what happened back in 1980, and was in reality trying to guess that out of Exhibits 5, 6 and 9. The point where I think - and in my judgment hold - that he is quite wrong, (that is not saying that he is necessarily a liar), is where he has said that he had had no dealings with Mr. Kaffel or with the Plaintiff company in 1980.

13. I have tried to explain as best I can how he could have made the mistake, but I may be wrong, he may in fact be lying about that; I do not have to find that. I do find - it is all I need - that he is wrong. In other words, at all points where his evidence conflicts with that of Mr. Kaffel, Miss Lee and Mr. Foo as to what happened, and when and where, in 1980, I prefer the evidence of Mr. Kaffel, Mr. Foo, and Miss Lee. It follows that I hold that he did in fact meet Mr. Kaffel in 1980, that he was shewn the advertisements of 1980, that he knew that Mr. Kaffel ran a business under the name of Suityourself Ltd., that Mr. Kaffel advertised, and that, for Mr. Kaffel, delivery dates were the be-all and end-all of his trading with Hong Kong.

14. His dealings, as I hold, with the 1st Plaintiff were not only in March but also in September of 1980, and when again, the 1st Plaintiff came to deal with him in March of 1981, in my judgment, quite apart from the actual dealings involved, the Defendant company was saddled with the knowledge that it was dealing with the 1st Plaintiff through the medium of the 2nd Plaintiff as its agent in Hong Kong. I am quite satisfied therefore that this contract, on the oral evidence given to me, was a contract between the Defendant and the 1st Plaintiff, with the 2nd Plaintiff merely being agent.

15. The contract says quite clearly that delivery was by the end of September, 1981.  Mr. Pang has conceded that for a contract of this kind time is of essence, and September 1981 meant September 1981. But even if that were not so, I hold, on the evidence I have heard, that it was made abundantly clear to Mr. Wei before he signed the contract that time was of the essence and September was the delivery date.

16. He made one or two revealing statements in incautious moments and one of them was this: "Yes, I did say that after the month of September, if they wanted to take delivery of the goods, I would be responsible for the air freight of the goods ..... . That answer bears out everything that I have said already -''... if they wanted" - at that time he knew, therefore, that, unless there were an extension of the delivery date, September was the delivery date. That answer and a similar one a little later makes nonsense of his suggestion that he had made it clear to Ada Lee, before he signed the contract, that delivery time would be seven to ten months from the placing of the orders with the Chinese manufacturers.

17. I have little doubt that something was said about seven to ten months, because Mr. Kaffel produced from his  briefcase a contemporaneous document which formed part of the negotiations leading to the contract, which bore, in the Defendant's own hand, some reference to seven to ten months, but, then, those negotiations were entirely superseded by the written contract, and were superseded by the written contract in such a way that the Defendant himself made it clear to me in his evidence twice today, that, as far as he was concerned, there would be no obligation on the Plaintiffs to take delivery after September.

18. He said to me that he had said to Miss Ada Lee: ''If the goods arrive after September you are not obliged to take them."  He then put a gloss on that saying that she answered,  "Oh no, no, no, as soon as they arrived let me know, but you've got to pay the air freight." So much for the question to time and the original delivery date.

19. It is common ground that there was an extension until the end of October, although the oral evidence on it is not very clear. It is a little confused, but it is accepted by Mr. Lee, and I accept that there was an extension to the end of October. But, as Mr. Pang has conceded in this case, very properly, this was an indivisible contract; there was no question of obliging the Plaintiffs to accept the blouses without the cardigans, or the cardigans without the blouses. And as I have said, the cardigans did not arrive until half-way through the extended month, and the blouses, the major portion of the contract, did not arrive until the middle of December, well after the last extension.

20. It was pleaded in the Defence that there was an agreement to extend the contract into 1982: The particulars under paragraph 11 of the Defence allege an oral agreement with Mr. Foo for an extension to February, 1982. In his evidence before me, Mr. Wei expressly disavowed any such conversation with Mr. Foo, and, as there was no conversation with Miss Lee, there is no evidence before me of any consensual extension to February, 1982, or to 1982 at all.  The result is that I am left without anything on which I could hold that there had been a second extension of time. But, even if Mr. Wei had not disavowed it, I still would have preferred the evidence of Mr. Kaffel, Mr. Foo, and Miss Lee that October was the final extension, and ever that was extended only on the basis that the difference between sea freight and air freight would be paid by Mr. Wei, or rather by Mr. Wei's company.

21. The goods were not delivered in time, they were not even delivered. A rather singular piece of evidence from Mr. Wei was this: ''The contract was never cancelled. I never attempted to deliver those goods which had arrived in Hong Kong."  In my judgment, there is the clearest possible breach of this contract: One, in the failure to get the goods to Hong Kong in time to be ready for shipment by the extended delivery date, and two, a complete failure to attempt to deliver anything at all. A delivery even out of time might have gone in mitigation of damage: The Defendant did not attemptto deliver: But that is something I do not need to consider; this is purely a question of fact. I do not feel it necessary in the circumstances further to set out in this judgment the evidence I have heard over the last few days.

22. There must accordingly be judgment for the Plaintiffs on the Claim and the Counterclaim.

23. I now come to the question of damages. The way it was pleaded is this: There was a separate claim for advertising and writing letters and loss of profit. That was superseded by a rather complicated calculation of nett profit, which was an attempt by Mr. Kaffel to be very fair by making theoretical calculations of what might have happened if he had received the goods. Of the whole page of particulars for a thousand blouses, the twelve hundred blouses and the nine hundred cardigans, there were only four items of fact. Those were written responses that he received through the Woman's Journal and the Sunday Times, but neither he nor I knows which of those would have turned into firm orders if attempts had been made to deliver. Sales in the shop were guesses. Clearances of stock at two different prices were guesses. I have indicated to Counsel that that is not the way that I think this claim really ought to proceed. It ought to proceed on a plain, straightforward issue of damages arising out of breach, namely money expended which must be repaid and the nett profit after deduction of such matters as V.A.T , import duty, clearance charges, etc., and Mr Pang has told me that he is in complete agreement with that approach to damages. Mr. Lee will now tell me what calculations his Solicitors have made as to the correct figure.

4.30 p.m. Court rises.

Representation:

Solicitors: Hastings & Co. for the Plaintiffs.

C.T. Chan & Co. for the Defendant.