Taigo Ltd v. Kwok Kwai Chuen Simon t/a Jade Top Design & Engineering Co

cacv 285/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 285 of 2004

(on appeal from HCA NO. 4296 of 2003)

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BETWEEN

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 12 July 2005

Date of Judgment: 12 July 2005

Date of Handing Down Reasons for Judgment: 15 July 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal from a judgment of Reyes J given on 31 August 2004.  The matter before the judge was an appeal and cross appeal from a decision of the master who had given judgment in favour of the plaintiff for $680,233.  The judge below dismissed the appeal and cross appeal.  This court dismissed the appeal by the defendant to this court at the conclusion of the hearing, with reasons to be given in writing.

Background

2.The plaintiff’s claim is simple.  It is a claim in respect of 36 unpaid invoices which were in respect of various metal parts which have been collectively described as parts of a racking system and locking pins.  The metal parts were used, during transportation and storage, to hold concrete facing panels that would be used in the construction of buildings.  There were contracts, written in Chinese, between the plaintiff and the defendant for the supply of the various metal parts which went up to make up the racking systems and locking pins.  The earliest of these contracts is dated 8 November 2002.  It is the defendant’s case that that contract was back dated and that the earliest of the contracts was executed between the parties on or about 20 November 2002.  If anything, the discrepancy undermines the defendant’s case.

3.It is the defendant’s case that the parties came to an oral agreement that payment would only be made once the quantity surveyor of the ultimate user of the parts had given approval and there had been final measurement of the weight of goods actually delivered and the whole of the building projects had been completed.

4.Those alleged oral terms undermine, entirely, the written terms of the contracts.  The contracts were quite clear.  Payment was to be made within 30 days of invoice, in the case of some of the contracts, by postdated cheques to be given immediately and, in other cases, simply payment was to be made within 30 days of invoice.  The alleged terms do not, therefore, supplement the terms of the written contracts, they contradict them.  As such, in any event, evidence of the alleged oral contract would be inadmissible.  But more than that, the defendant’s pleaded case is that the oral agreement was made sometime in October 2002.  In the evidence filed on the summary judgment application the time of making the oral contract is put as being sometime in November.  In the course of argument Mr Wong, who appeared on behalf of the defendant, said that it was in early November prior to the date on which the first contract was executed.  In those circumstances it is clear that the written contracts followed an oral agreement or discussion and that they must supersede anything that was orally agreed.  Put shortly the appeal on this point was hopeless.

5.It was also argued that the dates from which interest should be calculated should be 30 days from the date of delivery of the invoices.  The defendant avers they had been delivered in two instalments.  As support for that contention, Mr Wong sought to rely upon the numbering of the invoices.  His argument was no more than conjecture.  Indeed, it would appear that the defendant used invoices on numbered sheets which no doubt came numbered from the printer.  Many of the invoices are in sequence.  But it also has to be said that the sequence continues unbroken even though the defendant contends that there is a separation of some months between one part of the sequence and another.  In contrast the numbers of the invoices that were said to be delivered in the second batch are separated by a far greater amount than could be explained by a gap of a few months.  There were quite possibly different batches of invoices, whether in pad form or otherwise, which might be used at different times.  In order for the defendant to make good its case on the basis of the numbering, it would be necessary to have a detailed knowledge of the plaintiff’s office practice.  Even then any conclusion drawn is likely to be no more than conjecture.  The plaintiff’s case is that the invoices were issued on the dates of delivery.  The dates of the invoices do, indeed, correspond to the dates of the delivery notes.  In those circumstances there appeared to be nothing in the point raised by the defendant on this aspect.

Hon Le Pichon JA:

6.I agree.

Ms Terry SC Chan, instructed by Messrs C.C. Lee & Co., for the Plaintiff/Respondent

Mr Damian Wong, instructed by Messrs Benny Kong & Peter Tang, for the Defendant/Appellant