Longrand Electronics Ltd v. Top Universal Ltd
Read the full judgment text of DCCJ 2978/2005 on BabelCite. This District Court judgment.
1. The plaintiff was a seller of computer and electronic products. The defendant was a transporter. It was agreed between the parties that the defendant would deliver a batch of MP3 machines (“the Goods”) to Mainland China. The plaintiff delivered the goods to the defendant, who acknowledged receiving the same. After some time, the plaintiff enquired the defendant of the goods. Despite the plaintiff’s timely and repeated reminders, the defendant was unable to locate the Goods. The plaintif
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DCCJ 2978/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2978 OF 2005 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge E. Yip in Court Date of Hearing : 27th, 28th November 2006 Date of Handing Down Decision : 18th December 2006
__________________ DECISION _________________ The plaintiff’s case 1.The plaintiff was a seller of computer and electronic products. The defendant was a transporter. It was agreed between the parties that the defendant would deliver a batch of MP3 machines (“the Goods”) to Mainland China. The plaintiff delivered the goods to the defendant, who acknowledged receiving the same. After some time, the plaintiff enquired the defendant of the goods. Despite the plaintiff’s timely and repeated reminders, the defendant was unable to locate the Goods. The plaintiff took out the present action to recover the costs of the Goods. The defendant’s case 2.The defendant does not dispute the plaintiff’s case save and except that the plaintiff’s reminders were only made until very lately. The defendant does not have to prove whether the appointed recipient had received the Goods. Instead it is for the plaintiff to prove that the appointed recipient had not received the Goods. The defendant’s application for amending the defence pleadings 3.Just before trial, the defendant applies to amend the Defence in order to include a case of prior course of dealings whereby the plaintiff would not ask the defendant for any proof of delivery to the appointed recipient. I understand that the defendant will have no evidence in support of this amended case. I reject the application because the defendant would be unable to prove this amended case in any event. The trial should go ahead forthwith. The issues 4.I have to determine the following issues:
The plaintiff’s evidence 5.The plaintiff calls 2 witnesses: Yu Leung Sum (“Sam Yu”) and Tam Lai Ling (“Ms. Tam”). 6.At all material times until 30 September 2004, Sam Yu was the shipping supervisor of the plaintiff. On 1 October 2004, he became an employee of Faithful Team Limited (“Faithful Team”). Faithful Team was the plaintiff’s contractor for logistics. He continued to follow some logistic tasks in the new capacity. In early January 2005, Faithful Team fell out with the plaintiff. He was no longer involved in those tasks. 7.On 27 July 2004, he issued Delivery Note (“DN”) No. 10782 to the defendant to deliver the Goods [p. 40]. It was stated in the DN as follows:
8.The Goods were delivered to the defendant, who acknowledged receipt of the same. This fact is not in dispute in this trial. 9.Throughout the following 3 months, being the maximum period allowed by the recipient, there was still no news of the Goods. He began to send the defendant a series of emails at intervals to enquire of the Goods [p. 44 – 45]. The defendant had no positive feedback. 10.On 7 March 2005, Ms. Tam joined the plaintiff as its accountant. She discovered that the Goods under DN 10782 were not paid for by anyone. She made repeated enquiries with the customer. Up to the previous week before trial, the customer had not received the Goods. 11.So far, the defendant has not billed the plaintiff for payment of the freight of the Goods. According to the defendant’s general memo on the freight scale [p. 120], she reckoned it to be $6,400. The defendant’s evidence 12.The defendant calls 2 witnesses: Tam Yu Tang (“Tam”) and Yee Chi Tak (“Peter Yee”). 13.Tam was the accounting manager of the defendant. He has no idea why so far the defendant has not billed the plaintiff for payment of the freight of the Goods. He believes that it was his predecessor, Ms. Cheung, who handled this DN. Before she left the employ of the defendant, she had told him what he had to follow up. She had not told him to follow up with this DN. He cannot say whether this DN was completed or Ms. Cheung just omitted it. 14.Peter Yee is the director of the defendant. He believes that in the normal course of events, the Goods would initially be handled by his employee, Ah Lok, in the defendant’s office in Cheung Sha Wan, Kowloon. Ah Lok would arrange with a contractor, Kam Fung Co., for delivery from the office to the appointed recipient in Mainland China. At the present moment, the defendant has no witnesses or documents to trace the Goods after the defendant received them. He has not ever considered such documents relevant. Therefore he has not started to procure them. 15.He was aware of Sam Yu’s emails enquiring of some goods. He understood that they related to some other transactions between the parties. At the present moment, he is unable to elaborate what those transactions were. 16.He did not bill the plaintiff for the freight of the Goods because it was only a few thousand dollars. He would wait until the total bill came to several tens of thousand dollars. My findings 17.I have considered the full written submissions of both parties. 18.Mr. Lee for the defendant attacks the credibility of Ms. Tam in that she stated in her 1st statement that the Goods were sold to the defendant but in her 2nd statement she stated that they were only to be delivered by the defendant to the plaintiff’s customer. Her explanation in Court is that she made a mistake in her 1st statement as she was rather confused at that time. I accept that it was an innocent mistake on her part. I do not see how one version can benefit the plaintiff more. 19.I find her evidence and Sam Yu’s evidence credible and reliable. 20.I find Tam’s evidence credible and reliable. However, I do not find Peter Yee’s evidence credible or reliable. It would have been most natural for him to procure documents to trace the Goods. It defies belief and reason to allege that so far he has considered such evidence irrelevant. Besides, while attacking the plaintiff for not raising the enquiries soon enough, he does not have anything concrete to support his case that the enquiring emails [p. 44 – 45] were about some other transactions. Further, I see no sense in not billing the plaintiff so long after his assumed delivery of the Goods. Which party bears the onus of proof as to where the Goods had gone 21.Mr. Lee for the defendant cited Paragraph 3188, Carriage by Land, Chitty on Contract 26th ed. It stipulated that:
22.The evidence I accept is that Sam Yu had begun to enquire of the Goods after 3 months. The defendant has been put on sufficient notice. 23.According to the terms of DN 10782, upon arrival in the terminal, the defendant was to contact the plaintiff. The plaintiff would arrange for Wong Chung Kwan to collect the Goods. I think the defendant had the duty to ensure that the Goods were delivered to the appointed recipient. The defendant has to adduce evidence to prove due delivery. Whether it is proved that the Goods had gone missing 24.It transpired that the plaintiff was never contacted by the defendant to get somebody to collect the Goods. After parting with the Goods in the defendant’s office, the plaintiff heard no more of the Goods. The defendant has no evidence that the Goods were duly delivered. The quantum of compensation, if applicable 25.Peter Yee indicates that he is not in a position to challenge the alleged cost of the Goods as shown in the Purchase Order [p. 66]. The plaintiff claims HK$179,400 (US$115 x 200 x 7.8) for the 200 sets of MP3 machines lost. I accept that to be the correct quantum of compensation. The conclusion 26.I give judgment to the plaintiff in the sum of HK$179,400. I make an order nisi for the plaintiff to have costs of this action. This order shall become absolute after 14 days from today.
The Plaintiff: represented by Mr. Chan Yin Chun of Messrs. Wat & Co., Solicitors. The Defendant: represented by Mr. Lee Chi Hang of Messrs. Lee, Mok, Wong & Co., Solicitors. |