Sugibun Corporation v. Sato Taisuke t/a Sato Japanese Food Trading

HCMP 1334/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1334 OF 2005

(ON AN INTENDED APPEAL FROM DCCJ 2748 OF 2004)

BETWEEN

Before : Hon Cheung JA and Chu J in Court

Date of Hearing : 20 December 2005

Date of Judgment : 20 December 2005

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1.This is an application for leave to appeal against the decision of H H Judge Yuen.  A single judge of this Court, Yuen JA had previously refused to grant leave.

2.The only substantive argument in this case is whether when the parties reached an agreement that the defendant would settle the debt of $852,800 by thirteen instalments of $65,600 each, the plaintiff had also agreed that it would resume the supply of tuna to the defendant.

3.The judge rejected this as a triable issue.  On the evidence before the judge, we do not find that she had made any mistake which merits leave to appeal to be granted.

4.The settlement of 11 April 2003 was preceded by letters of demand by the plaintiff’s solicitors and the settlement was confirmed by correspondence by the plaintiff and its solicitors.  A settlement deed was executed by the plaintiff which the defendant had not signed.  In none of these documents was there a reference to the agreement by the plaintiff to resume supply to the defendant. 

5.It would be most surprising if the plaintiff was willing to defer payment of the then existing debt by instalments and yet agreed to run the risk of incurring further debts from the defendant by resuming supply.  At the very least one would have thought that the plaintiff would in writing set out the terms of payment if the supply was to be resumed.  The same would apply to the defendant.

6.The defendant did not give any particulars as to the terms of the resumption of supply : was it to be resumed immediately on the defendant giving the thirteen cheques or only when the thirteen cheques had all been honoured or whenever the defendant made the request to the plaintiff for the fish?  From what was said by the defendant about the difficulty of obtaining the fish from alternative suppliers which led him to approach the plaintiff again and eventually reaching the settlement, it is surprising to find that he only requested the plaintiff to resume the supply in August 2003 by which time he had already honoured five cheques.  If the supply was supposed to resume immediately on reaching the settlement, there was no evidence of protest by the defendant on the plaintiff breaking its promises.

7.The defence raised was not credible.  Accordingly we will dismiss the application.  

Mr. Ivan Cheung Tai Yau, instructed by Messrs Tam, Pun & Yipp , for the defendant