Power Trading & Engineering Co (China) (A Firm) v. Nippon Kanzai Center Co Ltd

HCA 3960/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3960 OF 2002

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BETWEEN

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Before: Recorder Edward Chan, SC in Court

Date of Hearing: 4 January 2005

Date of Judgment: 4 January 2005

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J U D G M E N T

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1.The Plaintiff was a firm engaged in the business of trading, supplying and fitting of fire equipments.

2.By a contract dated 21 October 1996, the Plaintiff agreed with the Defendant to provide certain goods and services in relation to the supply, delivery and installation of the fire alarm system, sprinkler systems, hydrant and carbon dioxide extinguisher systems to a building project known as Junefield Plaza in Beijing, China.  This building project was owned by Beijing Junefield Real Esate Development Company Limited (“Beijing Junefield”). 

3.It appeared that the Defendant was itself only a contractor in relation to the project.  By a contract made in August 1996 between the Defendant and Beijing Junefield, the Defendant agreed to supply to Beijing Junefield certain fire services installations including fire alarm system, sprinkler systems, hydrants and carbon dioxide extinguisher systems at a sum of US$1,429,200 plus 5.5% handling charge.  In fact the contract made between the Plaintiff and the Defendant was a back-to-back contract for the supply of these fire services installations.  The only material difference is that in the Plaintiff’s contract, there was no provision for the payment the handling charge.

4.In pursuance of the contact, the Plaintiff carried out the work and supply the equipments for phrase I of the project.  There were also additional work and equipment supplied to the project at the request of Beijing Junefield but with the knowledge and approval of the Defendant.  In fact in relation to some of these items the Plaintiff had issued quotations to the Defendant and these quotations were accepted by the Defendant. 

5.During the course of the work, the Plaintiff had rendered invoices to the Defendant for payment from time to time, and the Defendant had made certain payments to the Plaintiff from time to time.  By 13 September 1999, the Plaintiff had completed the work required of it and by letter dated that date demanded the Defendant to pay the outstanding balance of the contract sum of US$69,180.50 plus an additional sum of US$114,813.38, being the charges for the additional work and equipments required by Junefield.  The demand was repeated by another letter dated 9 December 1998, and then by an undated note in English addressed to Mr Nakamura of the Defendant setting out the amount due and also a break down list and the related invoices.

6.The Plaintiff had also asked the Defendant as to when the equipments and system for phrases 2 and 3 of the project should be delivered but there was no reply by the Defendant.  It is common ground that the Plaintiff did not supply anything for phrases 2 and 3 of the project.

7.There was never any real dispute by the Defendant on the amount due and owing to the Plaintiff.  All that the Defendant had said in reply to the Plaintiff’s demand was that the Defendant would have to take legal action against Beijing Junefield to obtain payment.  Apparently for one reason or another, Beijing Junefield did not pay the Defendant the full amount due to the Defendant.

8.There were certain suggestion that in fact the Defendant had issued proceedings against Beijing Junefield and had obtained judgment against Beijing Junefield.  However there is no admissible evidence before me in this respect.

9.Before me, Mr Ng gave evidence to verify the amount due.  On the part of the Defendant, there was no evidence called.  Although in the witness statement of Mr Nakamura filed by the Defendant, it was suggested that there was some dispute on the quantum of the amount due, as Mr Nakamura did not give evidence his witness statement could not be referred to and there is no admissible evidence before me to contradict the evidence of Mr Ng.

10.In the circumstances, I find that the amount due to the Plaintiff was as claimed by the Plaintiff and I will give judgment for the Plaintiff in the sum as claimed i.e. US$183,993.88 or its Hong Kong dollar equivalent at the time of payment with interest at 1% above the Hong Kong dollar prime rate of the HSBC from 13 September 1999 to the date hereof.

11.There will also be cost to the Plaintiff.

Mr Joeson Wong, instructed by Messrs Chan & Chan, for the Plaintiff

Defendant in person, absent

Third Party in person, absent