Peacearn Co Ltd v. Chan Man Chai t/a Ka Ngai Garment Factory

HCA001709/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing: 9th May, 1984.

Date of Delivery of Judgment: 9th May, 1984.

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JUDGMENT

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1. This is an action for the price of goods sold and delivered. By the amended Statement of Claim, the plaintiff claims the sum of $102,742.50 being the price of cloth sold and delivered to the defendants who are, as I understand it, manufacturers of clothing. On the pleadings, it appears that there is no issue as to the delivery of those goods or as to the price and the only issue raised by the re-amended Defence is as to the quality of those goods and it is pleaded in the first case that they were not merchantable and in the second that they were not reasonably fit for the purpose for which they were to be used which had been made known, it is alleged, to the plaintiff.

With regard to both issues, of course, the burden is upon the defendant. The defendant does not appear today. The date was fixed for hearing on 13th February 1984 when solicitors then acting for the defendant attended before the Registrar who made the order. Subsequently and quite recently, in fact, on 7th May 1984 by order of Mr. Justice Rhind, those solicitors ceased to act. When the case was called on before me today, I allowed a further 15 minutes or so for the defendant to appear beyond the time at which the court usually sits. The defendant failed to answer. Consequently, he is not here to discharge the burden which rests upon him of showing that either the goods were unmerchantable or unfit for the purpose for which they were intended. In those circumstances, in my judgment, the plaintiff succeeds on the pleadings as they stand without the necessity of calling evidence and I find in favour of the plaintiff for whom there will be judgment in the sum of 102,742.50 with interest at the rate claimed of 14% from 6th October 1982 to the date of judgment and interest hereafter at rate prescribed by virtue of the Chief Justice's Practice Direction. The plaintiff will have the costs of this action. I order the payment out to the solicitors for the plaintiff in part satisfaction of the judgment here in the sum of $51,779.36 presently in court.

Representation:

Miss Audrey Eu instructed by Sit, Fung, Kwong & Co. for plaintiff.

Defendant - in person - absent.