Willas Array Electronics (Hong Kong) Ltd v. New Technology Co Ltd
|
DCCJ 3644/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3644 OF 2007 ____________ BETWEEN
____________ Coram: H.H. Judge Chow Hearing dates: 23rd – 25th, 30th June 2009 Submission of written submission : 21st August 2009 Date of handing down Judgment: 23rd September 2009 JUDGMENT
1.This is the Plaintiff’s claim against the Defendant for US$40,374.40, being damages it suffered by reason of the Defendant’s failure to take delivery of all the goods ordered by the Defendant. On the other hand, the Defendant made a counterclaim against the Plaintiff for losses and damages in the sum of US$36,189.50, for failing to deliver the goods it ordered. 2.Under the Defence and Counter-claim, the Defendant put up the following defence:-
3.On or about 5.6.2006, the Defendant issued a purchase order (“the 1st Purchase Order”) with the Plaintiff to purchase 40,000 pieces of electronic parts known as NJU 6578 COG (“the Goods”) at a unit price of US$1.2, the total purchase price being US$48,000. In this purchase order, the delivery date is expressed to be:-
4.On or about 22.6.2006, the Defendant issued to the Plaintiff another purchase order (“the 2nd Purchase Order”), and amended on 28.6.2006, to purchase 14,080 pieces of the Goods from the Plaintiff at US$1.18 per piece, the total price being US$16,614.40. In this purchase order, the delivery date is set out as below:-
5.On or about 29.6.2006, the Plaintiff informed the Defendant that all the goods of the 1st Purchase Order would arrive on 3.7.2006 and requested the Defendant to give instruction as to how many pieces should be delivered to the Defendant first. The Defendant instructed the Plaintiff to deliver 20,240 pieces first, and the rest were to be delivered upon further instruction. On 3.7.2006, the Plaintiff received 40,040 pieces of the Goods, and 20,240 pieces were delivered to the Defendant on 5.7.2006. On 9.8.2006, the Defendant settled the sum of US$24,288 for this order. Thereafter there was no further delivery of the Goods to the Defendant under the two purchase orders. 6.Between 3.7. 2006 and 13.7.2006, Tango Tang of the Plaintiff occasionally asked the Defendant to take up delivery of the goods of the 2nd lot of the 1st Purchase Order. On or about 14.7.2006, the Plaintiff informed the Defendant that the goods of the 2nd Purchase Order would arrive at Hong Kong on or about 17.7.2006, and enquired with the Defendant when the same could be delivered to the Defendant. The Defendant replied that it would inform the Plaintiff when the delivery was to be made. 7.The Plaintiff received the remaining goods under the two purchase orders on 3.7.2006 and 17.7.2006 respectively, but they were not delivered to the Defendant. 8.Each time when Tango Tang asked Van Chan of the Defendant to take delivery of the goods, she said that the Defendant did not need the goods yet, and she asked Tango Tang to wait for her notification to make the delivery. Tango Tang visited the office of the Defendant on or about 7th or 8th December 2006. He asked Van Chan why the Defendant did not take up delivery of the goods. She said she would check with the Defendant’s customer to see if the customer would need the goods and would inform the Plaintiff the result. On or about 28.5.2007, Tango Tang paid a second visit to the Defendant’s office. Van Chan gave a similar explanation. After that Tango Tang called up Van Chan repeatedly, but she indicated that the Defendant still had not received any message from their customer. 9.On 1.5.2007 and 13.6.2007, the Plaintiff issued two letters to the Defendant, demanding the Defendant to take delivery of the goods. But the Defendant did not make any response. On 16.8.2007, the Plaintiff instituted the present action against the Defendant. 10.In order to mitigate the loss, the Plaintiff sold, 440 pieces of the goods on 22.10.2007 to one of its customers, at $3,608, and on 7.12.2007, the Plaintiff sold 14,520 pieces to the same customer at $119,064. 11.In her affirmation, Van Chan said that on the date of the issuance of the 1st Purchase Order, she said to Tango Tang that any delay in the delivery of the goods would not be acceptable because the Defendant’s customer would claim against the Defendant for loss and damages. She accused the Plaintiff of having failed to meet the deadline for delivery. During cross-examination, she agreed that Tango Tang made numerous telephone calls to her, asking her when she would take up delivery of the remaining goods. She replied that she was not sure, she was waiting for customer’s reply. She remembered that Tango Tang visited her office in May 2007. She agreed that he had asked her when she would take up the remaining goods. She said that she was not sure because she was waiting for the reply of the Defendant’s customer. She agreed that in May 2007 a letter issued by the Plaintiff was sent to the Defendant. 12.Her evidence tallies with the evidence of Tango Tang. If it had been true that the Plaintiff had been late in the delivery of the remaining Goods, no doubt Van Chan should have told him so, instead of saying that she was not sure when she would take up delivery of the Goods and that she was waiting for customer’s reply. If time had been the essence in the delivery of the Goods, and the Plaintiff had delayed in delivering the remaining Goods, she ought to have told him that the deadline for delivery of the remaining Goods had passed, and that the Plaintiff had been in breach of the contract. Her answers during cross-examination reveal the truth of the whole matter. They show that Tango Tang’s evidence is truthful. What he said is in fact what had happened. Another point is that if time had been of the essence of delivery, it should have been so stated in the two purchase orders, and for that purpose, a precise deadline should have been written on the purchase orders. But that was not done. 13.The evidence of Tango Tang is consistent with the evidence of Van Chan given in cross-examination. It is clear that the Defendant refused to take delivery of the remaining Goods, causing loss and damages to the Plaintiff in the sum of US$40,374.40 or HK$314,920.32 ($40,374.40 x 7.8). After deducting the two sums of HK$3,608 and HK$119,064, it still suffers a loss of HK$192,248.32. Hence the Plaintiff is entitled to judgment in the sum of $192,248.32. 14.I order that the Defendant do, within 14 days from today, pay to the Plaintiff the sum of HK$192,248.32, together with interests: from 21.6.2007 to 22.10.2007, interest on the sum of HK$314,920.32 at judgment interest; from 23.10.2007 to 7.12.2007, interest on the sum of HK$311,312.32 (HK$314,920.32 – HK$3,608), at judgment rate; from 8.12.2007 to payment, interest on the sum of $192,248.32 (HK$311,312.32 – HK$119,064), at judgment rate. The counter-claim is dismissed. Costs 15.I make an order nisi, to be made absolute in 14 days’ time, that the Defendant do pay costs of this action to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel.
The Plaintiff: represented by Miss Maria So, instructed by Messrs Tang & So, Solicitors. The Defendant: represented by Miss Janine Cheung, instructed by Messrs Huen & Partner, Solicitors. |