New Business International Ltd v. Golite International Ltd

DCCJ 3811/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3811 OF 2005

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BETWEEN

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Coram: Deputy District Judge A. Kot in Chambers (Open to Public)

Date of Hearing: 24^th May 2006

Date of Handing Down Judgment: 25^th May 2006

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JUDGMENT

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1.This is an application by the Plaintiff for a summary judgment against the Defendant for payment of goods sold and delivered.

The Plaintiff’s Case

2.It is the Plaintiff’s case that they received order from the Defendant and had sold 2 batches of raw material (“the goods involved”) to the Defendant by delivering the same to a factory in China called 金力微型池廠 (“金力”).  Invoices for the goods involved dated 30^th May 2004 and 30^th June 2004 were sent to the Defendant.  On 19^th July 2004, the Plaintiff received a letter from the Defendant asking for the Plaintiff’s endorsement to confirm the outstanding sum owed to the Plaintiff being $292500 for audit purposes (“confirmation for audit purpose”).  By a letter dated 27^th October 2004, the Defendant had, for the first time, raised the issue that they have to confirm with the factory in China as to whether goods involved were in fact used in the manufacture of the Defendant’s products and the Plaintiff will be paid a sum of $48750 as a token of the long standing dealings between the parties.  Further demand for payment turns out to be a failure, the Plaintiff then took out this action for the sum of $292,500.  At this hearing, it is agreed that the Plaintiff will give credit to the partial payment made and is only asking for judgment of $243,750, being the outstanding amount due.

The Defendant’s Case

3.According to the affirmation of Mr. Tang Wing, the manager of the Defendant, the parties had been in business for quite some time and the Plaintiff was a supplier of plastic raw materials.  There were occasions where goods were delivered by the Plaintiff to a mainland factory called 企石微型電池廠 (“企石”) pursuant to the Defendant’s instructions.  However this is not the case for the goods involved.  There was no evidence showing that the goods were delivered to the Defendant and the part payment is only made as a gesture of goodwill.  By their letter dated 17^th October 2004 and 4^th November 2004, the Defendant had denied the goods were duly and properly delivered to the Defendant.  As for the confirmation for audit purpose, the person who signed the said confirmation was not aware of the dispute between the parties.

Principles

4.In an application for summary judgment, it is for the Defendant to satisfy the court that there is an issue or question in dispute which ought to be tried or that there ought for some reason to be a trial of the claim or part (O.14 r.3 of RDC).  The test is : “is what the defendant says credible?” (Ng Shou Chun v Hung  Chun San [1994] 1 HKC 155).

5.However it is trite law that assertion must not be taken in isolation.  They must be credible or believable in the light of the evidence placed before the court (Mass International Limited v Hillis Industries Limited [1996] 1 HKC 434.  And mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence, i.e. that his evidence is reasonably capable of belief (Hong Kong Civil Procedure 2006 Vol .1 at paragraph 14/4/9).

Triable Issue

6.It is clear from the affirmation filed by the Defendant that the ordering of the goods from the Plaintiff is not in dispute.  The only issue is whether the goods were delivered to the wrong receipient against the instructions of the Defendant, i.e. the goods had not been delivered and received by the Defendant.

7.I found this allegation by the Defendant is not supported by evidence adduced by the Defendant and/or the evidence are incredible.  The Defendant had not pleaded in their Defence nor in the affirmation of Mr. Tang as to who should be the correct receipient in the delivery.  In paragragph 9 of Mr. Tang’s affirmation, the Defendant’s stance is clearly that the receipient is not 企石 for this delivery.  So how can the fact that the Plaintiff had not delivered the goods to 企石be relevant in this case.  And neither did the Defendant’s enquiry with 企石be relevant then.

8.If there had in fact been a mistake in delivery, one would expect the Defendant to have taken up the matter with the Plaintiff well before October 2004.  This had never occurred.  If the issue is whether the Plaintiff had delivered the goods involved as instructed, their enquiry with the factory should be towards this end.  In their 2 letters to the Plaintiff, the fact that the goods involved were not received by the Defendant had never been raised.  On the contrary, the way the 2 letters were framed gives one the impression that goods involved had in fact been delivered to the factory but the Defendant was only confirming whether the goods involved were being used in the manufacture of their products.

9.The explanation by the Defendant concerning the confirmation for audit purpose is also absurd.  The only reasonable inference to be drawn from such confirmation being sent out must be that the Defendant agreed to such amount to be due and asked the creditor to confirm.  If there is dispute as to whether the goods had been delivered to the right receipient, why would the Defendant send out this document.

Conclusion

10.I do not consider the Defendant has raised any triable issue.  Its version of story is simply unbelievable and self-contradicting.  What the Defendant say is incredible and not reasonably capable of belief.  For the above reason, the Plaintiff should be entitled to judgment against the Defendant.  I therefore give summary judgment in favour of the Plaintiff against the Defendant for the sum of $243,750 with interest thereon at judgment rate from the date of writ of summons until payment.

Costs

11.There is no reason why costs should not follow the event.  I order that the Defendant do pay the Plaintiff costs of the action, including costs of this application, with certificate for counsel, to be taxed if not agreed.

Mr. Victor So instructed by Messrs Kitty So & Tong for the Plaintiff

Mr. David Chan instructed by Messrs To, Lam & Co for the Defendant