Dunga Marble and Minerals v. Lik Sang (Wong's) Holding Co. Ltd.

DCCJ001035/2002

DCCJ1035/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1035 OF 2002

Coram: Deputy Judge W Chan in Chambers

Date of Judgment: 4 September 2002

__________________

J U D G M E N T

__________________

1.This is an application by the plaintiff for summary judgment against the defendant pursuant to Order 14 of the Rules of the District Court for the sum of US$13,425.70, together with interest thereon and costs.

2.The legal principles relevant to the application are well known and I shall not repeat them all in this judgment. In Re Safe Rich Industries Limited, CACV No. 81 of 1994 (Judgment of the Court of Appeal dated 3.11.94), Bokhary JA, as he then was, said this:

"The test at the summary stage is indeed as simple as whether the defendant's assertions are believable. But it must be recognised - because failure to recognise it would create a debt-dodger's charter - that whether the defendant's assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute."

3.The plaintiff's claim is that on or about 9 October 2001, the plaintiff and the defendant stated and settled in writing an account of the plaintiff's claim against the defendant for the price of certain marble sold to the defendant, and of the refund which the plaintiff agreed to make to the defendant.

4.The account is said to be contained in a letter dated 3 October 2001 from a Mr Dickie Wu addressed to the plaintiff. I am told today by Mr Lam, acting on behalf of the defendant, that Mr Dickie Wu was at the time an employee of the defendant. Mr Wu no longer works for the defendant but the defendant accepts that Mr Wu had the authority to issue the letter on behalf of the defendant.

5.That letter started off by saying that:

"Further to the tele-conversation with Mr Singh, thank you for his kind consideration of accepting our prices. I am sorry for this late reply because I just came back from Europe. Below please find the calculation of the balance:"

6.The letter ended by saying:

"If the captioned proposal is acceptable to your Company kindly please sign & chop above to confirm and fax this document back to us. We will then pay you the balance."

7.The letter was subsequently signed on behalf of the plaintiff to signify acceptance of the account contained therein. Whilst there is no direct evidence to prove the return of the letter to the defendant, I feel able to draw an irresistible inference from the contemporaneous documents that it was in fact so returned. In particular, I have relied on the letter from the defendant to the plaintiff dated 9 October 2001, on which someone on behalf of the plaintiff had endorsed in handwriting that the plaintiff had "No option but to send back statement duly signed". I further rely on the Telegraphic Transfer Application Form dated 31 October 2001 signed on behalf of the defendant, requesting the Kincheng Bank to remit the sum of US$13,425.70 to the plaintiff. This, of course, is the same amount as stated in the letter dated 3 October 2001.

8.In my judgment, the account as stated in the letter of 3 October 2001 is a "real" account stated in which several items of claim have been brought into account on either side, and, being set against one another, a balance is struck and the consideration for the payment of the balance is the discharge of the items on each side. It contained, in my judgment, an absolute acknowledgement by the defendant of the balance due to the plaintiff without any qualification.

9.In the circumstances, I am not satisfied by the defendant that there is any issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial.

10.Accordingly, I make the following order:

there be final judgment in this action for the sum of US$13,425.70 in favour of the plaintiff against the defendant, together with interest thereon at the rate of 8.125% per annum from the date of writ to judgment.

(Discussion re costs)

11.I further order that costs of this action and of the application be paid by the defendant to the plaintiff, to be taxed if not agreed.

Representation: