Shafer Haggart Ltd v. Multi Projects Co Ltd

HCA005096/1983

Coram:  Jones J.

Date:  23rd August, 1983

___________

JUDGMENT

___________

1. This is an appeal by the defendant from an order of a Master dated the 10th August granting conditional leave to defend upon payment of the sum of $300,000 into court within 21 days.

2. The plaintiff is an importer of food products in Vancouver Canada. The defendant carries on business in Hong Kong as an exporter and supplier of food products. By the statement of claim the plaintiff claims damages in the sum of Can. $15,810.48 and U.S. $56,397.24 for the loss and damage incurred in respect of the sale and purchase of four consignments of food products.

3. The goods were produced by China National Cereals, Oils and Foodstuffs Import and Export Corporation of Kwangchow. Contracts were entered into between the parties for these goods on the 24th October 1981, 27th November 1981, 14th January 1982 and 9th March 1982. The statement of claim sets out particulars of the breaches of the agreements upon which the claim for damages is based.

4. A series of debit notes were submitted by the plaintiff to the defendant setting out details of their losses. A lengthy dialogue then took place by way of telexes and correspondence from May until October 1982 with a view to settlement of the amounts claimed.

5. The defendant did not at any time during this period dispute the plaintiff's claims. In fact the defendant not only made some partial payments, but the whole tenor of their communications amounted to an acceptance of liability with requests for indulgence.

6. Subsequently the defendant raised various defences to the claim although some amounts are still specifically admitted. The defendant has also indicated there may be a counterclaim, but no particulars were given to substantiate a claim.

7. The main argument submitted by way of defence is that the defendant acted as the agent of China National. The defendant contends that this is evidenced by a memorandum on China National notepaper dated the 14th January 1982. The memorandum reads so far as it is relevant as follows : -

subject to the following terms and conditions :

For future years, Kwangtung Branch agree to supply exclusively to Multi Projects Co. Ltd./ Shafer-Haggart Ltd. canned mushrooms and tomatoes for Canadian markets, with quantities to be negotiated and amicably agreed upon by both parties during May/June of each year and of course prices are subject to be agreed upon by both parties."

8. The document was signed by a representative of the plaintiff, the defendant and China National.

9. I agree with Mr. Kotewall who appeared for the plaintiff that the document does not appoint the defendant to be the agent of China National, but gives the parties an exclusive right to purchase the products stipulated from China National. Mr. Maxwell-Lewis who appeared for the defendant submitted that the agreement made between the parties which is entitled 'Agency Agreement entered into the 26th day of November 1981' supported his argument that the defendant acted as an agent. He also drew my attention to certain passages in the correspondence in which the plaintiff made references to China National. Having considered all these documents there was in my opinion no intention between the parties that the defendant should act in the capacity of an agent. The relationship between the parties was undoubtedly that of seller and buyer.

10. The matters referred to in Mr. Cheung's affidavit to dispute the claim have clearly been put forward at this stage as a delaying tactic.

11. No triable issue has been raised by the defendant with regard to the sums of U.S. $35,405.43 and Can. $10,821.06 for which amounts the plaintiff is entitled to immediate judgment with interest at 11% from the date of service of the writ. Costs to the plaintiff. There will be leave to defend as to the balance of the claim.

Representation:

Mr. R. Kotewall (Herbert Smith & Co.) for Plaintiff

Mr. C. Maxwell-Lewis (Denton Hall & Burgin) for Defendant