Shing Tai Garment Manufacturing Company Limited v. Double Garment Manufacturing Company Limited

CACV000056/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C.J., Yang & Barker, JJ.A.

Date of Judgment: 2nd May 1984

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JUDGMENT

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Barker, J.A.:

1. The following is the judgment of the Court.

2. This is an appeal from the dismissal of the Plaintiffs' claim for damages for breach of contract.

3. The contract which was in writing provided for the sale by the Defendants to the Plaintiffs of a quantity of material known as T/C Corduroy, in seven different colours. The alleged breach was that in respect of one of the colours, Khaki, the material delivered was not T/C Corduroy but was 100% cotton.

4. At the trial, two laboratory reports were produced by the Plaintiffs. These reports conflicted with each other, but this is a matter of no relevance since the trial judge held, and it was conceded before us, that the Plaintiffs had failed to prove that the cloth upon which the laboratory tests were performed was part of the materials delivered by the Defendants to the Plaintiffs pursuant to the contract. In view of this, the Judge was not satisfied that there had been any breach of contract.

5. The basis of this appeal is the submission that the Judge failed properly to take into account first, the evidence of Lee Law, the Plaintiffs' storekeeper, and second, an admission made in evidence by Yam Sui Wo, a director and manager of the Defendants.

6. Lee Law's evidence was as follows:-

"When goods are delivered I count the number of rolls and then place them aside. I wrote on cloth where it was from, when and also the quantity. After receiving the material I cut a half yard of each colour and send to the office to keep there."

7. He then produced two delivery notes relating to material delivered by the Defendants to the Plaintiffs and also an exhibit P7 which he said consisted of cuttings of the materials he received.

8. P7 was shown to Yam Sui Wo, who agreed that it was 100% cotton.

9. At first blush, therefore, this submission is attractive, but on closer scrutiny it loses its allure. In the first place Lee Law further said that the cuttings left in the office would be numbered by the office from the delivery note, and added, "I kept one set of samples myself". But there was no evidence that P7 had any writing or numbering on it identifying its source; nor whether it had come from the office or was one of Lee Law's samples. There was no evidence that "Lee Law's samples" had any distinguishing marks on them to show their source. And confusion was worse confounded by the evidence of Ma Hay Yan, the Plaintiffs' general manager who, when asked whether cuttings were taken from deliveries to make certain, in case of complaint, that they came from the same supplier, answered "Usually a factory would not adopt such a system." Clearly Ma Hay Yan knew of no practice of cuttings being sent to the office and numbered, and he would be expected to know. He was further asked:

" Q.    Did Lee Law take samples from remains?

A.    Yes.

Q.    A long time after clothes had been made up?

A.    Right."

10. These answers were totally at variance with Lee Law's evidence.

11. In these circumstances, the Judge was entitled to take the view which he did, in his ruling on the Plaintiffs' application for leave to appeal, that Yam Sui Wo's admission that P7 was 100% cotton was not an admission that P7 was part of the material delivered by the Defendants to the Plaintiffs. Furthermore there was no satisfactory evidence that P7 had in fact been delivered by the Defendants to the Plaintiffs.

12. For the foregoing reasons we dismissed the appeal.

Representation:

Mr. Y.C. Mok instructed by Messrs. Wong, Hui & Souza for Plaintiff/Appellant.

Mr. K. Ramanathan instructed by Messrs. P.F. Therese Chow & Co. for Defendant/Respondent.