Formosa Taffeta (HK) Co Ltd v. Both Base International Ltd

DCCJ 3395/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3395 OF 2002

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BETWEEN

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Coram : H.H. Judge Chow in Chambers

Date of hearing : 11^th May, 2006

Date of handing down Decision : 22^nd May, 2006

Decision

1.This is an application by the Plaintiff for final judgment against the Defendant for the respective sums of US$37,726.83 (or HK$294,269.27) and US$1,653.30 claimed in the Amended Statement of Claim together with interest and costs.

2.The Plaintiff is a company dealing in fabrics.  Between 3^rd and 12^th September 2001, the Defendant requested the Plaintiff to sell to it various kinds of fabrics.  On or about 22^nd September 2001 the Plaintiff duly delivered the goods to the Defendant.  The total price is US$37,726.83 (or HK$294,269.27).  But the Defendant failed to pay for the goods.  The Defendant’s defence is that it has already made the payment.  The Plaintiff’s case is that there were 2 different transactions between the Plaintiff and the Defendant, being one for the sum of HK$60,628.93 of a previous transaction and the sum of US$37,726.83, using the same invoice number 2604/5279 by the Plaintiff.  The Plaintiff erroneously believed that the Defendant had settled the sum of HK$294,269.27, but in fact the Defendant had only settled the sum of HK$60,628.93.  The issue of the Official Receipt to the Defendant was merely a clerical error of the Plaintiff’s staff.

3.The Plaintiff set out what happened in this regard in Paragraph 5(b) of the affirmation of Wong Yuk Fung Fonnie :-

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5.

(b)

I confirm that the number 2604/5279 of the abovementioned Invoice No. 2604/5279 in Exhibit WYFF-10 has been mistakenly used twice for 2 different transactions between the Plaintiff and the Defendant, being once for the said sum of HK$60,628.93 in Exhibit WYFF-10, which sum had in fact been settled by the Defendant, and again for the sum of US$37,726.83 (HK$294,269.27) which is one of the two amounts being claimed herein by the Plaintiff.  There is now produced and shown to me marked “WYFF-15” a copy of the other Invoice also numbered 2604/5279 for US$37,726.83 (HK$294,269.27).  As the pages for the Invoice and Official Receipt of the Plaintiff’s stationery for each transaction are printed together, the Official Receipt for the transaction related to US$37,726.83 (HK$294,269.27) also have the number 2604/5279 (“the Official Receipt”)………  The Official Receipt was therefore mistakenly sent by the Plaintiff’s staff to the Defendant at the erroneous belief that the Defendant had settled the sum of $294,269.27, when in fact the Defendant had only settled $60,628.93.”

4.In this affirmation, the Plaintiff placed the focus on how it erroneously sent out the official receipt.  But more importantly is the fact relating to how and why it would make out and issue the receipt for the sum of HK$294,269.27, when it did not receive this sum at all.

5.A receipt is a note acknowledging receiving a sum of money.  In normal circumstances, a person would only issue a receipt upon receiving a sum of money.  He would not issue a receipt prior to receiving the sum of money.

6.Upon receiving a sum of money from the Defendant, the staff of the Plaintiff would certainly have to check the serial number (in this case 2604/5279) relating to the transaction in question, as well as the amount received, against the sum to be paid as recorded in the relevant file to see if the sum received matched the sum to be paid.  Therefore it is inconceivable that the Plaintiff’s staff would issue a receipt, when the sum (HK$294,269.27) required to be paid was not paid at all.  In other words, the receipt was issued in vacuum.  This requires explanation from the Plaintiff.  But there is no such explanation.

7.The Plaintiff said that the words “Deleted as arranged by Zhongshan office” on the Official Receipt No. 2604/5279 were written by the Defendant’s staff.  There is nothing to support this allegation.  No particulars were given in relation to when and by whom the words were written.  The Plaintiff submitted that the words in quotation indicated unambiguously that the Defendant’s staff were at all material times aware that the Official Receipt should be deleted for mistake.  But it is not clear what was to be deleted.  There is no evidence adduced to show how the mistake came about.  In the absence of evidence relating to the circumstances under which the words were written, I would not accept the Plaintiff’s submission.

8.I adjudge that this is not a proper case for an application for summary judgment.  I therefore dismiss it.

Costs

9.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Plaintiff is to pay costs of this application to the Defendant, to be taxed, it not agreed.

The Plaintiff : represented by Mr. K P. Lam of Messrs. Tong Chan & Co., Solicitors

The Defendant: represented by Mr YIU Cheuk-kin, not legally represented.