Vinflair Logistics Ltd v. Navtej Singh Sethi t/a Sethi International

HCA 17/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 17 OF 2010

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BETWEEN

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DETERMINATION

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Introduction

1.The Plaintiff, a logistic company, claims against the Defendant an amount of HK$1,931,961.70 in respect of the charges outstanding for the services it had rendered to its forwarder, the Defendant.

2.The Plaintiff applies for summary judgment under O.14, the Rules of High Court. The general manager of the Plaintiff has filed an affirmation to verify the claim, and further state his belief that there is no defence to the claim.

3.Hence, the Defendant has to show cause that it has a good defence to the claim (see O.14, rr. 3 and 4).

Defence

4.The Defendant resists the application by its Defence (without a Statement of Truth) already filed as well as an Affirmation of Mr. Sethi, the sole proprietor. The Defendant argues that it has defence to the claim on the ground that there are material disputes. As the Defendant’s counsel has very helpfully summarized the five areas of disputes in paragraph 7 of his written submissions, I find it convenient to set them out below:

(i)  Whether there was trade customs in the logistics business that the service providers would give a credit period of payment to the end of the second month after the particular service was rendered;

(ii)  When did the Defendant start to place orders on the Plaintiff and whether there was such an unhappy event as contended by the Defendant;

(iii)  Whether there was a meeting between Mr. Chan Yiu Fai and Benson of the Plaintiff and the Defendant in about mid. 2007;

(iv)  Whether Mr. Chan of the Plaintiff and the Defendant orally agreed to the said payment term.

Discussion

5.The alleged disputed facts are mere assertions because the correspondence exchanged between the parties prior to the issuance of the writ does not support the assertions. It is most pertinent to note that when the charges started to fall into arrears, and when the Plaintiff demanded the Defendant to pay $2,031,961.70, the amount outstanding as of 11 November 2009, the Defendant in the letter in reply dated 18 November 2009 not only failed to allude to any of the assertions that it is now making, but requested for indulgence from the Plaintiff to allow it to settle the outstanding amount by weekly instalment of $100,000[1].

6.The Defendant however did not fully honour the said promise by making the weekly payments of $100,000. He had only paid two payments of $50,000 respectively on 18 and 24 November 2009, and managed to reduce the amount then outstanding to HK$1,931,961.70. This led to the Plaintiff issued a Notice of Delinquency dated 30 November 2009, demanding the Defendant to pay two weekly payments in the total sum of $200,000 by 4 December 2009.

7.The correspondence as discussed above together with the Defendant’s act of payment of an additional sum of $100,000 subsequent to the Plaintiff’s demand made on 11 November 2009 are, in my view, inconsistent with the assertions it now raises. Further, the emails exchanged between the parties in November 2009 also do not corroborate the Defendant’s assertions.

8.In the circumstances, the contemporaneous evidence referred to above shows that the alleged material disputes are no more than bare assertions that are not capable of belief.

9.For the aforesaid reasons, I find the Defendant has failed to show it has a good defence to the claim.

Order

10.Judgment is entered against the Defendant for the sum of HK$1,931,961.70, with interest from the date of the writ until full payment at judgment rate.

11.I further make a costs order nisi in favour of the Plaintiff in respect of the O.14 summons and the claim, together with certificate for counsel. Based on the Statement of Costs lodged by the Plaintiff, I summarily assess costs in the amount of $40,000. Any application to vary the costs order nisi is to be made by summons within 14 days of this judgment.

Mr Wilfred Tsui instructed by Messrs. Tang, Leung, Li & Tsang for Plaintiff.

Mr P K Chan instructed by Messrs. Eric Yu & Co for Defendant.