Cto (China) Global Logistics Ltd v. Sanama International Ltd
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DCCJ 5528/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5528 OF 2006 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge W. C. Li in Chambers (open to public) Date of Hearing : 29th January 2007 Date of Handing Down Decision : 2nd February 2007 ______________________ D E C I S I O N ______________________ 1.The Plaintiff was a limited company carrying on the business as freight forwarder and the Defendant was its customer. The Plaintiff’s claim was for the sum of HK$305,282.00, mainly being freight charges and for other charges related to the freight. 2.The Plaintiff applied for summary judgment after the issue of the writ. The Defendant contested the application saying that it was not liable to pay the Plaintiff as it was only acting as an agent of a company in Germany called Best Connection, i.e. the company that had received the freight sent by the Plaintiff, and that it had a counterclaim for damages for delay on the part of the Plaintiff in delivery. No draft defence and counterclaim was filed by the Defendant. 3.The correspondence by electronic mails between the Plaintiff and the Defendant had amply shown that the Defendant had directly contracted with the Plaintiff and had agreed to be responsible for all the charges that were invoiced and claimed by the Plaintiff. 4.The Defendant contended that the terms “Freight Collect” and “Collect as arranged” in the Bills of Lading/Airway Bills meant that the Plaintiff’s charges were to be paid by Best Connection and not by the Defendant upon delivery. The correspondence between the Plaintiff and the Defendant had clearly shown that for the 1st shipment, the freight were held up pending customs clearance when it was not clear who were to pay for the customs duties. This was resolved when the Defendant agreed to pay the customs duties for this first shipment, and for all freight and other related charges, albeit the Plaintiff would, as an exception for this 1st shipment only, pay the customs duties on clearance on the Defendant’s behalf. It was agreed between the Plaintiff and the Defendant that for all other shipments, Best Connection would pay the duties for customs clearance, and the Defendant in Hong Kong would be billed for the costs of the freight. It was also evident that immediately following this agreement to pay the Plaintiff’s freight charges, the Defendant applied for credit facilities from the Plaintiff, a formal Credit Facilities Application Form was submitted by the Defendant to the Plaintiff, and the Plaintiff granted credit facilities of 60 days to the Defendant to pay for the freight charges. 5.It is trite law that the Defendant’s defence must be credible. It is not whether its allegation is to be believed but it is whether it’s credible in light of the evidence before the court. ( Re: Safe Rich Industries Ltd (1994) HKLY 183) Further if the evidence of the Defendant is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the Defendant has a real or bona fide defence and judgment will be given to the Plaintiff. (National Westminster Bank v Daniel (1993) 1 WLR 1453). 6.The Defendant alleged that it was only an agent of Best Connection in Germany and the Plaintiff should ask Best Connection to pay for the freight charges. It was shown that the Plaintiff did ask Best Connection to pay but in vain. The correspondence between the Plaintiff and the Defendant had clearly shown that the Defendant was not acting as an agent for Best Connection which was its customer in Germany, and the Defendant was contracting directly with the Plaintiff to send and to pay for the freight to its customer in Germany. The Defendant had agreed to pay the Plaintiff for all freight charges and pursuant to this agreement, applied to the Plaintiff for 60 days payment credit. In the light of this evidence against the Defendant, the Defendant’s allegation of being an agent for Best Connection was groundless and obviously incredible, and the Plaintiff should be entitled to final judgment. 7.The alleged counterclaim by the Defendant for damages due to late delivery does not provide a set off to a claim for freight charges. RAF Forwarding (HK) Ltd v Wong Angela (trading as JMT Company) (1999) HKC 135). This alleged counterclaim will therefore not stand in the way of the Plaintiff seeking summary judgment against the Defendant for the freight charges from this court. It also appeared that the Defendant’s alleged counterclaim was not based on any actual claim against it by Best Connection. It was a bare assertion which did not look credible by itself. 8.Lastly, the Defendant contended that of the sum of HK$305,282.00, part of it were for other charges and were not purely for freight. I do not think this attempt to distinguish this case from RAF Forwarding (HK) Ltd v Wong Angela (t/a as JMT Co) 1999 (supra) was convincing and would be successful. The bulk of the total sum of HK$305,282.00 was for ocean/airline freight and the rest were for charges directly related and incidental to the freight, namely, trucking fees, airline document fee, airport warehouse charge, terminal handling charge, customs clearance fee, customs inspection fees, import handling charge, administration fee, etc. To distinguish these incidental charges from the freight charge itself would not be realistic as the shipment of freight would invariably carry along with it all these incidental charges. I would therefore find in the Plaintiff’s favour that the freight costs would include all incidental charges directly related to the freight itself. In any event, the Defendant in this case had agreed to pay the Plaintiff for all these charges as well. 9.Judgment against the Defendant is therefore given to the Plaintiff for the sum of HK$305,282.00 together with interest at judgment rate from the date of the writ, i.e. 8 November 2006, to the date of handing down of this decision, and further interest at judgment rate from date of handing down to the date of full satisfaction of the judgment sum by the Defendant to the Plaintiff. I also order that the Defendant is to pay the Plaintiff’s costs of this action, to be taxed if not agreed, with certificate for counsel for the Order 14 hearing. This cost order nisi to be made absolute 14 days after handing down.
Representation: Mr. Sanjay A. Sakhrani instructed by Messrs. Wilson Yeung & Co. for the Plaintiff Mr. Randall Ivan Arthur of Messrs. Laracy Gall for The Defendant |