永誠烟酒保稅倉有限公司 v. 豐溢洋酒有限公司

DCCJ1945/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1945 OF 2007

BETWEEN

Before: H H Judge Lok in Court

Date of Hearing: 13 May 2008

Date of Decision: 13 May 2008

D E C I S I O N

1.This is an application for the adjournment of the trial.

2.The Plaintiff carries on the business of, among other things, the provision of warehousing services, and the Defendant carries on the business of a wine merchant.  There was a dispute between the parties about an agreement on the part of the Plaintiff to store wine for the Defendant.  In this action, the Plaintiff claims against the Defendant for the outstanding sum of $52,808.41 allegedly due under the various invoices of the Plaintiff.  On the other hand, the Defendant disputes the accuracy of the sums stated in the Plaintiff’s invoices.  Further, the Defendant claims that the Plaintiff was in breach of the express term in the agreement in providing proper storage services to the Defendant and, as a result, the Defendant counterclaims loss of over $600,000.

3.After the case had been transferred from the Small Claims Tribunal, probably because of the amount of the counterclaim, the Plaintiff had engaged a solicitors’ firm to prepare the case on its behalf.  Shortly before the trial, the Plaintiff decided to conduct the case itself in lieu of its solicitors.

4.At the outset, I must say that this case is presenting the court with considerable difficulty.  The trial bundle was only supplied to the court this morning.  Further, as the Defence and Counterclaim is a homemade pleading, a lot of cross-references are necessary and it is not easy for the court to understand the issues in this particular case.  As a result, considerable time has been spent by the court in trying to clarify the issues between the parties.

5.While the Plaintiff’s representative, Mr Liang, is clarifying the issues in the claim, it seems that Mr Liang now seeks to rely on the settlement agreement allegedly made between the parties.  As a result, the Plaintiff is prepared to reduce the amount of the claim to the outstanding amount due under the settlement agreement.  The Plaintiff further relies on the settlement agreement to argue that the Defendant is not entitled to pursue any counterclaim against the Plaintiff.  If the Plaintiff wants to adopt such a position, amendment of the pleading is necessary.  But before the Plaintiff does so, it wants to seek legal advice as to whether it would be in the Plaintiff’s interest to adopt such a position.  However, when the Plaintiff is warned about the costs implication arising from the adjournment of the trial, the Plaintiff does not pursue the amendment.

6.Then the Plaintiff continues with the opening submission.  Unfortunately, it is found out that the subject matter of the Plaintiff’s claim, i.e. the invoices, had not been included in the trial bundle.  Further, Mr Liang will not be able to prove the contents of these invoices and the Plaintiff may have to file a further supplemental statement by the person who prepared such invoices.  The Plaintiff, therefore, applies for an adjournment of the trial to put the Plaintiff’s case in order.

7.The Defendant objects to the adjournment.  The Defendant argues that the Plaintiff had all along been represented by solicitors and the Plaintiff had ample time in preparing this case.  Further, the Defendant’s representative, Miss Budlong, has business interests both in Hong Kong and in the Mainland.  She also has family ties in the United States and so adjournment of the trial would deeply upset her schedule.

8.While I agree that an adjournment of the trial may cause Miss Budlong some inconvenience, it would not serve the justice of this case by ignoring the Plaintiff’s invoices which are the subject matters of this claim.  In a way, the Defendant is also asking the court’s indulgence to bear with all the inconvenience caused by the cross-references in the Defendant’s pleading.  In such circumstances, I think that the Plaintiff, being now a litigant in person, should be given one last opportunity to put its case in order.  In any event, the time estimate of this case is grossly insufficient.  It would be more desirable for the case to start afresh rather than starting the trial now and fixing a part-heard date a few months later.  I agree that the adjournment of the trial would upset Miss Budlong’s schedule but she would be in Hong Kong from time to time to take care of her business interests.  The court would certainly accommodate her diary in fixing the date of the adjourned trial.  I therefore allow the Plaintiff’s application for the adjournment of the trial. 

Mr Liang Jim Sheng, a director of the Plaintiff, present

Ms Laura Budlong, a director of the Defendant, present