Ex Centre Ltd v. Ning Tat Ming t/a Everwin Trading Co

DCCJ 4893/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4893 OF 2004

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BETWEEN

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Coram : Deputy Judge W. Lam in Court

Date of Hearing: 30^th  November 2005

Date of Handing Down Judgment : 1^st December 2005

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JUDGMENT

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Background

1.On or about 17th November 2003 the Plaintiff (“P”) was engaged by Fujian Fahong Knitting Machinery & Parts Co Ltd (“FJFH”) to deliver 27 cartons of knitting needles from Hong Kong to Fujian in the mainland, as a result of which P contracted the Defendant (“D”) to convey to P’s branch office in Shenzhen so that the branch office could deliver the goods to FJFH.  On or about 21st November 2003 D agreed to deliver 11 (out of 27) cartons of goods, total value being $687,741.60, D promising to complete delivery on or about 29th November 2003.  D itself or by its agent illegally bypassed Chinese Customs by transporting the goods to Zhuhai instead of Shenzhen, and so the mainland authorities impounded the goods, thereby causing loss to P.  P issued the within Writ on 17th September 2004, with D never entering a Defence nor has he ever appeared in this Court at any hearing.  By Order dated 24th June 2005, default judgment was entered in favour of P, and the matter is in court today for assessment on quantum.  D did not appear today for trial.

Plaintiff’s case

2.P was represented by counsel and called one witness Ms LAM.  PW1 adopted her statement (Bundle page 28) and all the annexed documents as evidence.  In addition she tendered today Exh P14 being a post-dated cheque P has issued to FJFH to complete the balance of all of P’s existing liability to FJFH.

3.The value of the goods is seen at FJFH’s letter to P at Bundle page 70, which is consistent with the figure of the value of the goods as appearing at Bundle page 52.  The notice by the Chinese authorities to D’s driver on the goods being impounded is found on page 49.

Conclusion and Orders

4.I am satisfied that the value of the goods was as pleaded in the Statement of Claim.  P does not claim for transport cost because this has not been paid over to D, as payment was to be against delivery, and there has been no delivery.

5.For the above reasons there will be judgment in favour of the Plaintiff:

(1)	in the sum of $687,741.60.
(2)	interest at 5% pa from the date of the Writ to date of judgment.
(3)	interest at 8% pa from the date of judgment to date of payment by the Defendant to the Plaintiff.
(4)	costs to the Plaintiff, to be taxed if not agreed, with certificate for counsel.

Miss Y. LAM instructed by Messrs. Huen & Partners for Plaintiff.

Defendant, in person, absent.