Yik Fai Tarading Ltd v. Unichem Enterprises Co Ltd

DCCJ2231/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2231 OF 2006

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BETWEEN

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Coram : Her Honour Judge Yuen in Chambers

Date of Hearing : 26^th July 2006

Date of Decision : 26^th July 2006

Date of Handing Down Reasons for Decision: 15^th August 2006

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Reasons for Decision

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1.This is an action for goods sold and delivered.  On 6 June 2006 the plaintiff filed an application for O.14 judgment.  The application was heard and granted by Master on 10 July 2006.

2.In its affirmation in support of the O.14 application the plaintiff exhibited 9 invoices about the goods sold and delivered to the defendant.  The particulars stated in the 9 invoices are as follows:-

Date of  Invoice	Invoice No.	Amount Payable
		(HK$)
3/11/05	05-270	$43,750
5/10/05	05-238	$36,750
22/10/05	05-268	$43,750
14/11/05	05/296	$43,750
1/12/05	05-307	$17,500
7/12/05	05/318	$43,750
17/12/05	05/326	$52,500
4/1/06	05/338	$43,750
13/1/06	05/352	$45,500
		$371,000
		=======

3.The defendant did not seek to dispute that goods had been supplied in accordance with the invoices.  Rather in the defendant's affirmation in opposition to the O.14 application the defendant affirmed to the contention that the lots of yarn supplied were not of merchantable quality and were unfit for the purpose for which they were supplied. 

4.In its affirmation, apart from making the bare assertion that the goods supplied were not of merchantable quality, the defendant never furnished particulars such as the names of the suppliers of the defendant, the complaints of these suppliers or the correspondence between the defendant and the plaintiff about the defective nature of the yarn supplied.  In a commercial world, one does expect the existence of letters of protest should the goods supplied fail to meet the contractual standards.  In short, the defendant failed to condescend upon particulars on the facts about the suggested defects.

5.It was the defendant's position that it would not be able to furnish further details nor documents in support of its contended defects even if this court is minded to grant the defendant an adjournment for the purpose of filing supplemental affirmation to deal with the alleged defects and damages.

6.Contrary to what was contended by the defendant, the only document replied upon by the defendant in its affirmation was a faxed message of the defendant in which the defendant simply asked for time to pay the plaintiff the outstanding sum of HK$371,000 by 4 instalments.  There was no inkling about the doubtful merchantability of the items nor was there any mention of sub-standard quality of the goods supplied in this faxed message.

7.For the lack of factual details in support of the defendant's suggested contention of the defective quality, the purported defence is practically moonshine.

8.I do not find it necessary to deal with the suggested oral variation of the contract when the purported breach does not get off ground in the first place.

9.This appeal is dismissed and the Master's decision is affirmed.  Costs of this appeal is awarded to the plaintiff with certificate for counsel.

Mr. Dennis Kwok instructed by Messrs. Augustine C.Y. Tong & Co. for the Plaintiff.

Ms. Rachel Lam instructed by Messrs. Kok & Ha for the Defendant.