Phones International Ltd v. Techsino International Enterprise Ltd

DCCJ 2840/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2840 OF 2005

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BETWEEN

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Coram:  H.H. Judge Chow

Hearing date:  6^th October, 2005

Date of handing down Decision: 16^th December, 2005

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Decision

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1.This is an application for summary judgment by the Plaintiff.  On 24^th August 2004 a claimant (“the Claimant”) called Techsino International Enterprises Limited instituted an action against the Plaintiff on 24^th August, 2004 in the High Wycombe Country Court in Buckinghamshire in the United Kingdom (the “UK”) for monies due in respect of unpaid invoices regarding goods supplied.  The Claimant was represented by Messrs. Blaser Mills (“Blaser Mills”), Solicitors in the UK.  On 21^st September 2004, the Plaintiff filed a defence and counterclaim, stating that it had not entered any contract with the Claimant, or alternatively, if a contract existed between them, the Plaintiff denied that it was indebted to the Claimant because the goods supplied by the Claimant were counterfeit goods and the Plaintiff counterclaimed for damages.

2.On 21^st October 2004, the Plaintiff applied for summary judgment.  The Claimant did not file any evidence to oppose the application.  On 10^th February 2005, Blaser Mills ceased to act for the Claimant. 

3.On 14 February 2005, the Plaintiff’s application was heard before Judge Jones, and the Claimant did not appear in the hearing.  On the same day, Judge Jones dismissed the claim, and judgment was entered for the Plaintiff on the counterclaim for £14,185.80 plus interest of £1,106.45, total £15,292.25.  It was further ordered that the Claimant was to pay the Defendant costs in the Action in the sum of £7,562.75.  The total sum payable by the Claimant to the Plaintiff was therefore £22,855.00.  In the present proceedings the Plaintiff claims against the Defendant for this amount of £22,855.00.  The Plaintiff says that the Claimant is the Defendant in the present proceedings.

4.The Defendant denied having commenced the UK Action.  The Claimant in the UK Action was a company called Techsino International Enterprises Limited; it denied having instructed Blaser Mills to commence any action in the UK; it denied having any contractual relationship with the Plaintiff; it denied having supplied any goods or submitting any invoices to the Plaintiff; the first time it heard of the UK Action was when it was served with the writ of the present action.  It further says that it has never received any notice regarding the UK Action.

5.In my judgment, the key issue is: was the Defendant the Claimant in the UK Action?  In the Claim Form, it was clearly set out that the Claimant was a company called Techsino International Enterprises Limited.  Its correspondence address is Room 3402, China Resources Building, 26 Harbour Road, Wanchai, Hong Kong.  The Defendant has the same address.  The Claimant’s Solicitor was Blaser Mills.  The claim was for monies allegedly due under invoice no. M1109(S) issued by the Claimant to the Plaintiff.

6.The Plaintiff took no issue on the name of the Claimant when it filed its Defence and Counterclaim on 21^st September 2004, and its application for summary judgment on 21^st October 2004.

7.The Plaintiff claimed that they had no contractual relationship with the Claimant.  The only relationship that had arisen in relation to the subject goods was between the Plaintiff and a German company called Mobileplus GmbH (“Mobileplus”) under the terms of a contract evidenced by a purchase order number 401763 (the “Purchase Order”).

8.Through the witness statement of Mr. Jakubowski dated 22^nd September 2004, the Plaintiff claimed that it had no knowledge of the Claimant’s existence until it received a faxed invoice on 27^th November 2003 from Mobileplus.  However, this invoice was having a number MH09(S) which was different from that in the Claim Form, namely, M1109(S).  Furthermore, the goods stated in the Purchase Order were different to that in the invoice no. MH09(S).  The Purchase Order stated C60 charger whilst the invoice stated C55 charger.

9.The Plaintiff through its solicitors Clarke Willmott conducted a company search in Hong Kong on 22^nd September 2004 and was informed on 23^rd September 2004 by the Companies Registry in Hong Kong that the Claimant did not exist in Hong Kong but there is a similar company named ‘Techsino International Enterprise Limited’ incorporated in Hong Kong in 2000.  But the Plaintiff did not see fit to clarify this with either Blaser Mills, Mobileplus in Germany or the Defendant in Hong Kong on whether the Defendant was in fact the Claimant in the UK Action.

10.It was only until 11^th February 2005 (one day after Blaser Mills ceased to act for the Claimant and 3 days before the hearing for the summary judgment application), that the Plaintiff, through a witness statement of Mr. Benjamin John Holt, stated for the first time that the Claimant was in fact the Defendant.  Mr. Holt stated that prior to their disinstruction his colleague Mr. Jakubowski had been informed by Blaser Mills that there was a typographical error in the name of the Claimant on the Claim Form in that the word “Enterprises” in the Claimant’s name should read “Enterprise”. 

11.In the Claim Form, the Claimant was stated with a correspondence address in Hong Kong, however it cannot be presumed that the Claimant was a company incorporated in Hong Kong simply because it has a correspondence address in Hong Kong.  Even Mr. Jakubowski himself has accepted this possibility in his statement dated 22^nd September 2004.  He said:

“Although the Claimant gives its address in Hong Kong, it has not specified the country in which it is incorporated and has provided no evidence that it is a corporate body at all”

12.The Plaintiff sought to rely on the invoice no. MH09(S) faxed to it by Mobileplus as evidence to prove that the Claimant was the Defendant.  The Defendant submitted that the Plaintiff faces with the following difficulties:

(a)	it was not originated from the Defendant; it was faxed to it by Mobileplus;
(b)	it did not bear any signature of any authorized person or the company chop mark of the Defendant;
(c)	it was not the same invoice referred to in the Claim Form as both are having different numbers.

12.1  In so far as (c) is concerned, Mr. Jakubowski claimed another typographical error in the Claim Form.  In paragraph 4 of his affidavit dated 19^th September 2005, he said, ‘I accept that the Invoice could read “MH109(S)” and not “M1109(S)”. Indeed, I noticed this myself during my conduct of the English litigation.  The claim had been issued against the Plaintiff by the volume debt recovery department of Blaser Mills.  Sadly, typographical errors are only too common in such circumstances.’  He did not say how he had come to know that it was a typographical error.  There is no evidence to show that this is a typographical error.  This is important because the typing in question was done by Blaser Mills, and not by the Plaintiff.  I cannot attach weight to what he said.  What he said is merely speculation. 

12.2  In so far as (a) is concerned, the circumstances relating to how Mobileplus obtained the invoice no. MH09(S) is important, because this would show how the Defendant is connected with the transaction in question.  But there is not a shed of evidence relating to such circumstances.  There is no evidence showing that the invoice in question originated from the Defendant.  Therefore the Defendant is not bound by it.

13.The invoice is the only evidence linking by the Defendant to the Claim in the U.K. Action.  But in view of the above difficulties it is not a piece of evidence which can prove positively or conclusively that the Defendant is the Claimant in the English Action.  There are factual issues to be tried in this case.  The Plaintiff’s application for summary judgment in this is inappropriate.  I therefore dismiss the Plaintiff’s application. 

14.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Plaintiff is to pay costs of the Defendant, with certificate for Counsel.

15.I further order that the Defendant do within 21 days file and serve a defence.

The Plaintiff     : represented by Charles Cook of Messrs. Boase, Cohen & Collins, Solicitors.

The Defendant:  represented by Mr. Raymond Fong, instructed by Messrs. Kelvin Cheung & Co., Solicitors.