Luen Tai Plastic and Metalware Mfy v. Wong Shan Ching t/a Man Jon Lau Printing Co

HCA005101/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J.

Date: 23rd June, 1983.

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JUDGMENT

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1. This is a strainght-forward claim for goods sold and delivered in the sum of $64,737 plus interests and costs.

2. Deliveries are not disputed. The plaintiff claims that the chopped and signed-invoices accompanied such deliveries to the defendant1 evidenced that the receipt of these goods were in "good order and condition". Indeed, the invoices were so chopped and signed, but it is reasonably clear that they were not se chopped and signed for acknowledging "good order and condition" as alleged. On the face of them, these invoices were chopped and signed to evidence merely deliveries.

3. The goods in question were plastic caps for manufacturing watch cases. Having admitted deliveries, the defendant claimed that a large number of these plastic caps were discovered in mid 1982 to be defective and that replacement was requested. According to the defendant, a partner of the plaintiff firm, Mr. Kwan, insisted on and obtained immediate payment from the defendant with an assurance that account would be duly taken of these defective caps at a later stage. The plaintiffs version is different: deliveries in mid 1982 were said to have been paid without any complaint r condition The price for goods claimed in this action, so the plaintiff asserts, was in respect to deliveries made from the 3rd October 1982 to the 1st March 1983. Be that as it may, the defendant's allegation of an assurance as raised can be consistently run with such an immediate payment.

4. According to the defendant, debit notes as against the plaintiff were made up, given to and collected by the plaintiffs staff when they came to deliver further plastic caps. This allegation is refuted by the plaintiff. On this simple factual issue, only one party can be telling the truth. On an Order 14 application, I must assume that the defendant can substantiate his allegation at the trial.

5. The plaintiff through Mr. Lee, counsel, has raised three not insubstantial paints. First, if, as it is contended, the defendant could only have discovered the defects i.e. scratches and marks on the plastic caps after the colouration in processing for the defendant's own buyer, the National Electronics Watch Co. Limited, it is not easy to understand why, as the defendant committed himself on affirmation, "after processing, (he delivered) the watch cases to National Electronics & Watch Co. Limited". See paragraph 2 of the defendant's affirmation filed herein on the 24th May 1983. Why, Mr. Lee asked rhetorically, did the defendant cause the goods after the colouration process to be delivered to his own buyer when defects were then allegedly visible and could have been noticed. Secondly, it is pointed out that whilst the defendant glossed over his alleged loss with respect to his own buyer "to the tune of. over $90,000 as a result of defective materials" supplied by the plaintiff, he made no reference to the same or any figure in connection with his "debit notes" allegedly given to and "picked up" by the plaintiff's staff. The defendant must condescend upon particulars and should leave no vital issues to speculation. Lastly, Mr. Lee, counsel for the plaintiff emphasized the absence of any correspondence from the defendant raising or repeating his complaint to the plaintiff throughout the entire period of dealings between these parties.

6. The defendant has had his first bite, as it were, before the learned Master. Even at this stage of an appeal to this court, from the documents available, we are left with these suspicious circumstances in the. defendant's own factual assertions. This is, in my view, a fit case for ordering conditional leave to defend.

7. This appeal from the learned Master, as all appeals on an Order 14 summons, has been supplemented by legal arguments and further factual elaboration. With such added advantage, this court is driven to a conclusion at the variance with that arrived at by the learned Master.

8. I would grant leave to defend to the defendant only conditionally upon a payment of the plaintiff's claim into court. Consequently, the order made by the learned Master and the judgment entered pursuant thereto must, therefore, be set aside. Costs here and below be, as agreed, costs in the cause.

Representation:

Mr. Sanny Lee instructed by Robert Wang & Co. for the Plaintiff.

Mr. Benjamin Yu instructed by Tsang, Chan & Co. for the Defendant.