Fook Loong (HK) Ltd v. Top Season Engineering (Hong Kong) Ltd and Another
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DCCJ5673/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5673 OF 2007 -------------------- BETWEEN
-------------------- Coram : H.H. Judge Chow in Chambers Date of hearing : 21st May 2008 Date of handing down Decision : 6th June 2008
Decision 1.This is an application by the Plaintiff for summary judgment against both Defendants for the amount claimed in the Statement of Claim with interests and costs. The 2nd Defendant is the guarantee of all the money owed by the 1st Defendant to the Plaintiff. The sum of $114,844.27 claimed by the Plaintiff is the outstanding price of goods sold and delivered by the Plaintiff to the 1st Defendant at the 1st Defendant’s request, particularized as follows:-
2.The Defendants do not refute that the goods were received by the 1st Defendant, but they argue that:-
3.In his affirmation dated 12 March 2008, the 2nd Defendant said,
4.The tests of the above samples are all related to contract no. ASC-070099, dated 18 July 2007. This contract does not form part of the subject-matter of the Plaintiff’s claim. The Defendants have not clearly shown how the qualities of goods in one contract can reflect on the qualities of goods in other contracts. The fact that the qualities of goods in one contract are defective does not necessarily mean that the qualities of goods in other contracts are also defective. The second test 5.To substantiate their allegation that the goods supplied by the Plaintiff are defective, the Defendants sent 3 samples to the Hong Kong Standards and Testing Centre Limited for testing. The date of testing was from 19 to 26 March 2008. The test report shows that the density of the goods ranges from 28.4 to 35.9kg/m3. They are 10.25% to 29% below 40kg/m3, which was specified in the catalogue and invoices of the Plaintiff. The 2nd Defendants aver that this is a breach of the contract. 6.According to the report, the 3 groups of submitted sample were said to be:- (A) Phenolic Foam (Ref: FL-0701663); (B) Phenolic Foam (Ref: FL-0701557); and (C) Phenolic Foam (Ref: FL-0701226). The goods supplied by the Plaintiff to the 1st Defendant under the invoices set out in the Statement of Claim include various types of products. These various types of products are particularized in the 2nd affirmation of Wong Yu Hong Ellen, the Plaintiff’s witness. The goods supplied under items (1), (2), (4), (6)(g) and (10)(f) are not the subject-matters of the Defendants’ complaint. There is no defence to the claims involving these goods. Therefore the Plaintiff is entitled to judgment of this part of the claim. The total amount of value these goods are $33,665.76 ($6,063.84 + $5,464.80 + $18,900 + $717.12 + $2,520). Hence the total value of the goods complained about by the Defendants amounts to $81,178.51 ($114,844.27 - $33,665.76). 7.On 14 September 2007, the Plaintiff issued a first reminder to the 1st Defendant reminding it to make payment for the goods delivered under invoices (1) to (6) because the payment had been overdue for 30 days. No written response was made by the 1st Defendant to this reminder. On 28 September 2007, the Plaintiff issued a second reminder to the 1st Defendant in respect of the same batches of goods. No written response was made by the 1st Defendant to this reminder. 8.On 28 September 2007, the Plaintiff issued a first reminder in respect of the goods delivered to the 1st Defendant under invoice (7). No written response was made by the 1st Defendant. 9.On 27 November 2007, the Plaintiff issued a final reminder in respect of the goods delivered to the 1st Defendant under invoices (1) to (10). No written response was made to this invoice. 10.The 2nd Defendant said in his affirmation dated 12 March 2008, said that “Part of the goods the 1st Defendant received was defective and did not confirm to the Plaintiff’s own specification. I had numerously asked the Plaintiff to take back the defective goods and/or reduced the price but the Plaintiff refused.” But he failed to condescend on particulars as to when he asked the Plaintiff to take back the defective goods. He did not say that the First test was done prior to 22.12.2007. He did not offer any explanation as to why the 1st Defendant did not make any payment at all in respect of the goods not complained by him. 11.The 1st Defendant had received the alleged defective goods under item (3) on 27.7.2007, but then why is it that it continued to receive further defective goods? There is no evidence from the 1st Defendant to show when and how it became aware that the goods were defective. 12.The only tests relating to the 3 samples of goods from Invoices (5), (8) and (9) were done in March 2008 whereas the Statement of Claim was instituted on 22.12.2007 and the summary judgment application was taken out on 16.1.2008. The 2nd Defendant said that the goods received by the 1st Defendant was defective and did not conform to the Plaintiff’s own specification and he asked the Plaintiff to take back the defective goods and/or reduce the price. There is no evidence that all these were done prior to 22.12.2007. 13.The Defendants have not put forward any proposed counterclaim and/or set off against the Plaintiff’s claim. 14.By reason of the matters above-said, I find that there are serious doubts relating to the defence in respect of the goods which the 2nd Defendant complained as defective goods. In my judgment it is a shadowy or sham defence. I would only grant the Defendants conditional defence in respect of these goods. 15.I make the following orders:
Costs 16.I make an order nisi, to be made absolute within 14 days from today, that the Defendants do bear costs of this application, to be taxed, if not agreed.
The Plaintiff: represented by Mr. Kuan Man Chun of M/S. Tsang, Chan & Woo. The Defendants: represented by Mr. Shaun Mok, instructed by M/S. Tai, Mak & Partners. |