Luen Ngai Machinery Factory (Suing As a Firm) v. Wong Yuen Wah and Another

DCCJ008024/1968

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

Action No.8024 of 1968

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Coram: Judge Cons.

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JUDGMENT

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1. The plaintiff in this Action is the manufacturer of various types of machinery which are themselves used in the manufacture of small plastic animals and the like. On the 24th of May, 1968 he was approached by the two defendants and after some discussion and a look around his factory a contract was entered into between his own company on the one hand and on the other a limited company expressed to be the Sheung Chi Fat Plastic Factory Co. Ltd., which was apparently a company which the two defendants intended to form with themselves as the two directors, but which at that time was not yet in existence. For this party it was signed by Mr. WONG, the 1st defendant, to whom I will for convenience hereafter refer merely as "the defendant", Mr. CHAN, the 2nd defendant, having admitted liability at the first hearing of this Action and taken no further part herein. The Contract in question is now document 1 of Exhibit 1.

2. Delivery of the particular machinery ordered was made by the plaintiff on 27th May, and on the 17th and 24th of June. Documents No ...(illegible) .2, 3, 4 and 5 of Exhibit 1 refer. I can find no mention in these of the hair laminating machine, i.e. the last item of the contract, but no one has queried it in the proceedings and I assume that it was delivered in order. Payment of the deposit had already been made as required under the contract and a further payment by cheque was made in July. But a balance still remains outstanding for which the plaintiff now sues. Included in the balance claimed, however, appears to be a sum for $64 in respect of work done by the plaintiff in August, 1968 upon certain knives belonging to the defendant and referred to in Exhibit 7. This sum cannot be recovered upon particulars of claim limited exclusively to goods sold and delivered and the claim of $7,315 must be reduced accordingly.

3. The defendant now alleges the machinery was defective in certain instances and it may be most convenient to deal with each item in the order in which it is set out in paragraph 2 in his defence. The first is the Industrial Fluid Mixer referred to as item 4 in document No.3 and in the addends to the contract. The latter document specifies that the motor for the mixer shall be of 3 horse-power. That in December last year the motor then attached to it in the defendant's factory was of only 2 horse-power, I have no doubt. But that was some six months after delivery, whereas in July, only one month after delivery, Mr. CHAN certified that the machinery delivered under the contract was "in conformity to the specification and power mentioned" therein. From the photographs Exh.11 and 12 it would appear that the motor is not an integral part of the mixer but only lightly attached to it and easily replaceable. Unfortunately, these photographs were not put to the plaintiff in cross-examination, but in view of the long delay before this matter was raised and the certificate of Mr. CHAN, I am satisfied that it cannot be the motor that was originally delivered and which was probably of the requisite 3 horse-power.

4. The next item is a secondhand pump, referred to as the 1st item of document No.4. In the defence it is castigated as being useless but no support was derived from the only witness who spoke with regard to it, a Mr. LAU Shi Ping, whose only complaint was that it did not cut out automatically when a sufficient storage of compressed air had been amassed. He also mentioned a squeak that it emitted all the time, but did not think this affected its working ability. Apparently it is still in use at the defendant's factory and there is no evidence of any repairs ever having been carried out. For all I know, the failure to cut out may arise from a defect or faulty adjustment elsewhere. I understand the pump is just one machine of many forming part of the production line. Without better evidence than I was given I am not prepared to hold that it was defective.

5. The third complaint relates to two water cooling machines but the only evidence relating to them that was produced by the defendant was a statement by the same Mr. LAU that one of them was satisfactory.

6. There are only left the two rotating ovens. The evidence as to the state of these was given by two technicians and a mechanic, and I am quite satisfied that as from the 16th July, the heating system of both ovens was not in proper working order. Against this the plaintiff says that on the 6th of July, he personally attended at the defendant's factory at the request of Mr. CHAN and tested the machines which he found to be satisfactory. Exhibit 6 consists of two small plastic animals which he says are part of the results of the test, at the conclusion of which Mr. CHAN signed the certificate of fitness to which I have already referred. The defendant also admits that he managed to produce 500 dozen articles with the machines but that he contends that these articles were useless. Bearing in mind his use of that word in the defence in relation to the secondhand pump and also the fact that he appeared willing to allow a considerable discount for them when considering compensation, I think this may be an exaggeration. The two small animals, Exhibit 6 appear to me to be excellent examples of ...(illegible) kind and I am satisfied that on the date that they were made i.e. the 6th of July, the ovens were in good working condition and in accordance with the contract under which they were purchased. There are two possible explanations for the subsequent events, either the machines were da ...(illegible) ged by whoever operated them between 6th and 16th July, (and there is no evidence who this was); or that the heating systems was not part of the plaintiff's machine and was installed by someone else. This latter seems probable from one remark of the plaintiff in evidence and from a reading of the 2nd paragraph of item 6 on page 5 of his catalogue, Exhibit 2. It would also be consistent with the action of the defendant in calling in an outside contractor, in preference to enforcing the one-year's guarantee given by the plaintiff in the contract, at a time when the parties appeared still to have been on good terms. Two days after the outside contractor completed the repairs the defendant gave work to the plaintiff in respect to the knives I have already mentioned, and some six days after that received technicians of the plaintiff into his own factory. Such conduct would be unlikely if at the time he felt that the poor craftsmanship of the plaintiff's factory was causing him the loss of a very valuable order. I am satisfied that such allegations are without merit and are put forward now merely to avoid a payment that is seriously overdue.

7. With the finding that the machinery delivered was in fit condition and in accordance with the contract the rest of the defence and the counterclaim must also fail. with regard to paragraph 3, there is nothing to support it in the contract itself and even Mr. YANNE must have realized the helplessness of this lost cause, for he made no attempt whatsoever to lead the defendant to it in his examination. There would not seem to be any advantage to anyone for me to go through the remainder in detail, to recount the other instances where the defence evidence fails diamally to substantiate what had been so cheerfully set out on paper. I will simply record judgment in favour of the plaintiff in the sum of $7,251 and costs.

CERTIFIRD TRUE COPY.

P.S.I. (A.Costa) 29.1.69.

Representation:

H.H. Law (H.H. Law & Co) for Plaintiff

Yanne ( ...(illegible) & Yanne) for 1st Defendant.