Tanko Electronics Ltd v. Kysho Multimedia Ltd
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DCCJ 1337/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1337 OF 2009 ____________
Coram: His Hon Judge Leung in court Date of hearing: 27-28; 31 May 2010 Date of judgment: 13 September 2010 J U D G M E N T 1.Tanko, the Plaintiff, claims for the price of the goods, namely, hi-fi speakers, sold to and delivered at the request of Kysho, the Defendant, during the period between April 2005 and January 2007. Kysho denies the claim; and by way of counterclaim, claims for damages for late deliveries. Background 2.Rysho designs and sells micro-hi-fi systems. It sources its hi-fi components including speakers, speaker boxes, CD and DVD consoles from various manufacturers. The components would then be packaged for sale to Rysho’s buyers. Tanko was one of these manufacturers engaged to supply speakers and speaker boxes to Rysho. Tanko has been a manufacturer of speakers and speaker boxes since 1993. Its factories are situated in the Mainland. 3.Since about 1996, Rysho had been placing orders with Tanko. On Rysho’s side, Akiyuki Yasuda is the director and T S So is the purchasing manager. On Tanko’s side, Lok Wai Kwong is the managing director and Lam Chi Wah is the sales manager. 4.Tanko claims against Rysho for the price of the goods sold and delivered under 31 invoices in April, August to December 2005; February and November 2006; as well as January 2007. The total invoiced amount is HK$998,637.05. Particulars of the 31 invoices (items nos.1 to 31) are contained in the Appendix to this judgment. 5.Rysho denies liability. The major ground of defence is late delivery of the goods under the invoices, subject matter of the claim, by Tanko. Rysho’s counterclaim also relates to the alleged late delivery of the goods under other invoices, not being the subject matter of Tanko’s present claim. The pleaded case 6.It is pleaded that Kysho was supposed to settle the invoices issued by Tanko within 14 days. Rysho denies that; and alleges (in its evidence) a 30-day credit period instead. But all these are immaterial. The fact is that Kysho has not settled the 31 invoices above within any credit period or at all. Counsel confirmed this during the trial. 7.Rysho puts forward a counterclaim for total sums of HK$400,499.60 and US$3,336,686 (or over HK$26 million). Kysho further claims for a declaration that it is entitled to recover from Tanko such damages for which it may be held liable to pay or may reasonably pay to its buyers as a result of the alleged breach on the part of Tanko. 8.The counterclaim far exceeds the jurisdiction of this court. Tanko has once applied to have this case transferred to the High Court. However, upon Kysho’s undertaking to waive its claim in excess of HK$1 million, the case remains with this court. 9.By the time of the trial, Kysho confirmed no more dispute in respect of invoice items nos. 10, 21, 23, 26, 27, 28, 29, 30 and 31 of the Appendix. The dispute 10.According to the pleadings and the statement of issues, the dispute lies in the following respects:
The alleged late delivery 11.In respect of the alleged late delivery, there are the following issues:
Parties’ agreement on the delivery dates and arrangements 12.The purchase orders (“PO”) placed with Tanko invariably specified the respective delivery dates for the goods ordered. Kysho contended that time was of the essence. 13.Tanko contended that the delivery dates specified in the PO were invariably 1 to 2 weeks from the dates of the PO. That was said to be unreasonable. In my view, if the dates were indeed agreed between the parties in the present context, there would be no place for the question of their reasonableness. Indeed Tanko’s case is that the dates were not agreed; or that they were never adhered to in practice. 14.Tanko pointed out that the delivery dates were specified by Kysho unilaterally. All the PO issued by Kysho required Tanko’s confirmation by signature with company chop. None of those in question had been so signed by Tanko. 15.Yasuda of Rysho explained that the parties had proceeded on the basis of mutual trust since mid-1990’s. But Rysho had never indicated that it would not insist on the delivery dates as per the PO. 16.Both parties referred to the actual arrangements between the parties. There is dispute as to whether the parties needed to liaise further after the placing of the PO. 17.In this regard, various PO in question specified that the unit price was “T.B.A” though the delivery dates were specified. Whether that meant the price was ‘to be agreed’ or ‘to be advised’, it does not sound likely that Tanko was contractually obliged to work on the PO unless and until the parties had further liaised with each other after the placing of the PO. This is one point about the PO that was not really explored by the parties; and therefore I say no more. 18.The parties’ argument focus on the delivery dates and arrangements. The PO invariably contained the remark “SUBJECT TO MR. MATSUKI FINAL APPROVAL FROM ……”. There is no dispute that Matsuki is the engineer of Kysho. According to Tanko, the practice was to await Rysho’s approval of the prototype. The approvals always came after the delivery dates specified in the PO. Therefore there was no way that the delivery dates as per the PO could be adhered to. 19.So explained that the above remarks were merely standard forms that were generated by the computer even in repeated orders. He would not delete the remarks in the absence of superior instruction. However, it is noted that even for apparently same model, the remarks in fact differ. For instance, both PO No.2264/05M (dated 5 July 2005) and PO No.2277/05M (dated 9 July 2005) were placed for the same model of speakers. The reference numbers in the remarks in the two PO were however different. Another example involves PO No.2344/05M (dated 12 August 2005) and PO No.2469/05M (dated 7 November 2005). Those numbers had to be specifically typed for a purpose, not generated indiscriminately by the computer as alleged. 20.Mr Wu for Rysho pointed out that in any event, only 2 PO in question were first orders whereas others were repeated orders. Therefore there was no need for such approval or liaison between the parties. This suggestion was put to Lok. 21.Lok admittedly did not participate in the daily operation of the business between the parties. In any event, he disagreed with Rysho’s suggestion. In court, he explained that even in repeated orders, there were variations such as the watt and amp specifications as well as the serial number to be printed on the back label of the speakers. For its own protection, Tanko always consulted Rysho on those variations after receipt of the orders. Production commenced only upon approval. 22.What was put to Lok above in court was not put to Lam. As mentioned above, it was Lam who was in charge of the liaison with Rysho. In his supplemental statement, Lam gave evidence in line with that of Lok in court. Lam explained that there could be variations even in repeated orders. He gave examples of variations of the logo to be put on the front of the speakers or the back plate to be put on the back of the speakers. Tanko would require Rysho’s approval before commencing production. 23.Lam gave another reason why the delivery dates imposed by Rysho on the PO were not adhered to. According to him, Tanko’s factory had to check the state of the raw materials and its production schedule before confirming the delivery dates with Rysho. Occasionally, Kysho would also give instruction in respect of specific deliveries, for instance, partial delivery. He could not think of an occasion on which the delivery dates as per the PO were adhered to in practice. 24.Insofar as the orders in question are concerned, the dates of approval and Tanko’s case are summarised as follows:
25.The PO invariably contained reference to overseas country, such as France, Holland, Italy, Spain or Portugal. The fact that the goods supplied by Tanko were required for Rysho’s hi-fi systems sold to overseas buyers should reasonably be known to Tanko. Lam in court confirmed that. But he had no idea about how Rysho dealt with its buyers. According to him, Tanko never knew the deadlines that Rysho had to meet in delivering its products to its buyers overseas. In his evidence, So even considered that there was no need to inform Tanko of the deadlines that Rysho might have to meet as set by its overseas buyers. 26.The fact was that Tanko was only responsible for the supply of speakers; and Rysho relied on other suppliers for the other components of the hi-fi systems that it sold to its overseas buyers. There is no evidence as to the deadlines that those other suppliers had to meet and how those suppliers had met their respective deadlines in order to enable Rysho to meet its deadline for shipping the completed hi-fi systems to its buyers. In my view, Tanko was contractually obliged, and was only in a position, to fulfil its agreements with Rysho. But this was not the delivery dates as per the PO as alleged. Delivery at Tanko’s own risk (items nos. 1, 3, 4, 6, 7, 14, 16, 17, 18, 19, 20 of the Appendix) 27.It is alleged that Tanko failed to deliver the goods under these 11 invoices within the time as agreed. The delayed deliveries were not accepted and made by Tanko at its own risk. 28.The allegation makes sense only if Rysho’s case is that due to the delay in delivery, Rysho had rejected the goods and it was Tanko which insisted on delivering the goods notwithstanding the rejection. There is no contemporaneous document to evidence the communication of the alleged rejection of goods prior to those relevant deliveries. On the contrary, the factories designated by Rysho to take delivery of the goods invariably signed the relevant delivery notes to signify acceptance of the goods. 29.Yasuda suggested that the factories had no authority to accept the goods in the circumstances. Had Rysho taken such stance as alleged, I would have expected instruction to have been given to those factories so that Tanko would not have been in a position to deliver the goods to those factories against Rysho’s wish. The fact was that those factories did acknowledge receipt of the goods and none of those goods had been returned. The alleged cancellation of order (item no.24 of the Appendix) 30.The contention is that the PO for the goods delivered under this single invoice (item no. 24) had been cancelled as a result of Tanko’s failure to conform to the contractual delivery date. 31.The relevant PO specified the delivery date to be 15 December 2005. As to the significance of the delivery date on the PO, I refer to the discussion above. The delivery note recorded that the goods were eventually delivered on 13 February 2006. 32.On the face of it, the PO has been chopped ‘CANCELLED’. There were also handwritten remarks suggesting that the document was sent to Tanko for the attention of Lok and Lam, requesting Tanko to take back the goods. On the face of Tanko’s invoice, there were similar handwritten remarks dated 10 May 2006. 33.By the handwritten remarks on the PO and the invoice, Rysho acknowledged that the goods had already been delivered by then. The reason given for those remarks was that Kysho’s customer had cancelled its order to Kysho. Therefore Kysho followed suit and sought to cancel the PO to Tanko. If this happened at the time when the remarks in the PO or the invoices were made, this would have been too late for Kysho. 34.However, So explained that it was in January 2006 and prior to the delivery when he informed Tanko that the order was cancelled. Lam denied that. But if this had happened in January 2006 as alleged, I am surprised that the factory designated by Rysho to take delivery of the goods would still have done so in February 2006. The alleged air freight charges incurred by Kysho (items nos. 8, 11, 15 and 22 of the Appendix) 35.It is alleged that due to late delivery of the goods under these 4 invoices, Kysho had no alternative but to accept the goods and to ship the same by air to its customer in France; and thus incurring air freight charges in the sum of HK$133,312.80. Pleaded as a defence, this could only be understood to be a set off by way of counterclaim for damages, namely, the alleged air freight charges. 36.As to how the parties in fact treated the delivery dates as per the PO and how they in fact conducted themselves in respect of delivery arrangement, I repeat the discussion above. According to Lam, there was at one stage instruction from So to withhold the delivery to the designated recipient of the goods, namely, Amazing Team Limited Shipa Factory in the Mainland, until further notice. Lam understood that to have to do with the financial difficulty of the factory. It was upon Kysho’s further instruction when the goods were delivered (under items nos. 11 and 15 above). 37.Tanko claimed no prior knowledge about the alleged air freight until the present litigation. Tanko also raised doubt as to the alleged shipment by air on 16 and 19 October 2005. The relevant delivery notes recorded that some of the goods were delivered to the designated factory in the Mainland on 25 October 2005 (under item no.15) and 9 December 2005 (under item no.22). It therefore sounds impossible that the hi-fi systems that Kysho allegedly shipped to its buyer on those 2 dates in October 2005 could have anything to do with those speakers which were yet to be delivered afterwards (under items nos. 15 and 22). The allegedly wrong unit price (items nos. 2, 5, 9, 12 and 13 of the Appendix) 38.According to Kysho, the unit price stated in these 5 invoices was incorrect. It contends that Tanko is not entitled to demand for payment in respect of these invoices unless and until the unit prices have been rectified. 39.There is no dispute that the invoices in question specified that the unit price was US$3.30. There is also no dispute that this differed from the unit price stipulated in the relevant PO which was US$2.80. 40.These 5 invoices, on their faces, have been engrossed with handwritten amendments in that the unit price was crossed out and the lower price of US$2.80 was written. According to So, he made the amendments and sent the amended invoices by fax back to Tanko for rectification. 41.In court, Lam explained that the goods delivered under these 5 invoices belonged to speaker model NSX-2900 that Tanko had always supplied to Kysho at the unit price of US$3.30. In view of PO for the same model of speakers in January 2004, i.e., prior to the PO and the 5 invoices in question, So had to concede that model NSX-2900 for AKAI had been supplied to Rysho at the unit price of US$3.30, not US$2.80, by then. 42.Invoice items nos.2, 5, 9 and 12 relate to the same PO (No.2297/05M) dated 20 July 2005. According to Lam, on about the same day, Rysho was informed by fax of the mistaken unit price in the PO. Rysho was requested to rectify before Tanko could order for raw materials and commence production. However, Kysho had not issued any revised PO accordingly. Tanko apparently commenced production and issued the invoices in question for US$3.30. On the face of that PO, there were indeed handwritten remarks to such effect from Tanko on that day. 43.Invoice item no.13 relates to PO (No.2344/05M) dated 12 August 2005. According to Lam, on about 22 August 2005, Rysho was informed by fax of the mistaken unit price on the PO. Despite request, Rysho had not rectified the PO. On the face of that PO, the unit price was crossed out and replaced by US$3.30 with apparently Lam’s initial and date of 22 August. 44.Of the invoices, subject matter of Tanko’s claim, there are indeed 2 invoices that had been amended in the manner as that suggested by Rysho. They are Invoice No. TI0511053-B dated 19 November 2005 (item no.21 of the Appendix) and Invoice No.TI0512070-B dated 26 December 2005 (item no.23 of the Appendix). The former relates to model NSX-2900 equivalent to the goods supplied under invoice item no.13 above. The latter relates to model NSX-2940 for ‘Hyundai’. 45.This shows 2 things: First, Rysho had indeed requested for amendment of the invoiced unit price in line with its PO months after the delivery of the goods; and secondly, Lam had indeed approved the amendments, which was followed by revised invoices. Does that prove Rysho’s case in respect of the 5 invoices under consideration? On balance, I think not. 46.The PO for the goods delivered under these 5 invoices were placed during the period between July and August 2005. The PO for the goods delivered under invoice item no.21 was placed some 3 months afterwards. The fact that Tanko agreed to the revision in relation to those 2 subsequent orders does not per se support Rysho’s case on revision in respect of these previous orders and deliveries under the 5 previous invoices. 47.Tanko agreed to revise invoice items nos.21 and 23 and issued revised invoices in April 2006. According to So, the dates he marked on the 5 invoices in question were those on which he sent them to Tanko requesting for amendments. In that case, requests for amending invoice items nos.2, 5 and 9 were sent on November and December 2005, some 4 to 5 months earlier. Further, the requests to amend invoice items nos.12 and 13 were not even sent to Tanko until later in early May 2006. If Rysho’s case is accepted, this would mean Tanko had selectively responded to Rysho’s requests for amendments while Rysho had also requested amendments to the invoices not quite in accordance with their chronological order. This requires some explanation; but Lam was not really cross-examined on this. 48.By his statement, Yasuda relied on what So explained in his statement in respect of the above unit price dispute. When he gave evidence, Yasuda for the first time suggested that it was he who agreed with Lok on the lower unit prices as stated in the PO. This was obviously not put to Lok. But the remarks put down by Tanko on the PO leading to these 5 invoices mentioned above tend to contradict the suggestion that the lower unit price was already agreed between the parties by then. 49.On balance, I accept the evidence adduced on behalf of Tanko and reject Rysho’s case in respect of these 5 invoices. The alleged non-delivery (item no.25 of the Appendix) 50.Kysho contends that it never received the goods allegedly delivered under the invoice in question (item no. 25); but the invoice was actually for film charged for manufacturing instruction manual and gift box. In court, Tanko’s witnesses were cross-examined as to whether there was agreement to pay such film charges. Yet before its case opened, Kysho confirmed through counsel that this item was no longer in dispute. Claim proved 51.It was suggested that Tanko has apparently sat on the outstanding invoices since 2005 without any action out of its awareness of its fault in delivering the goods late and causing substantial loss to Ryson. 52.It is odd for Rysho to invite the court to draw such an inference, when Rysho has apparently sat on its alleged right to claim against Tanko for loss and damage in excess of US$3,000,000. 53.In any event, Lam disagreed with the suggestion and explained that Tanko had chased Rysho for payment from time to time on the telephone. Rysho had indeed settled some while the parties continued their business. The invoices, subject matter of the claim, are those that remain outstanding. Lok also said in court that from time to time, Rysho had settled some small amounts. Invoices that had been settled did not form the subject matter of the claim in the present action. 54.Considering the evidence, including those mentioned above, I prefer the evidence adduced on behalf of Tanko in case of inconsistency with that of Rysho. I find the cost of goods sold and delivered is proved as claimed. The counterclaim 55.The counterclaim consists of the following heads:
Air freight charges (items nos.8, 11, 15 and 22 of the Appendix) 56.Kysho claims that the goods under 4 invoices (items nos. 8, 11, 15 and 22) were delivered late. It had no alternative but to accept and to ship the same to its buyers in France by air in October 2005, and thus incurring air freight charges in the total sum of HK$133,312.80. The claim for such air freight charges was discussed above. It suffice to repeat that I reject Rysho’s claim. 57.In the counterclaim, Kysho also complains that Tanko was late in delivering the goods for other PO and under other invoices, not being the subject matter of the claim. It is alleged that Kysho had to ship those goods to its buyer and thus incurring air freight charges in the sum of HK$267,186.80.
58.Again, there is no evidence as to the agreement between Rysho and its buyer on the deadline that Rysho had to meet for the shipment of the hi-fi systems under the above PO. As mentioned above, it was for Rysho to decide how it would deal with its buyers while Tanko only dealt with Rysho in accordance with the terms of the agreement between them. 59.The invoices for the air freight charges show 2 shipments on 3 September 2005 and 10 December 2006 respectively. There is no evidence as to how well its suppliers of other components of the hi-fi systems had coped with their respective deadlines for delivery. It is unclear if the dominant effective cause of the alleged delayed shipment of the hi-fi systems was Tanko’s late delivery of the speakers. Rysho has to explain the weeks nevertheless lapsed between Tanko’s delivery and Rysho’s shipments by air. According to Yasuda in court, it happened to be difficult to arrange the shipments by air on both occasions. 60.Tanko denies ever receiving any prior notice of any air freight to be incurred by Rysho for shipping the goods supplied by Tanko. The limited email correspondence produced that somehow mentioned air freight were dated October 2005 and did not concern the models of speakers delivered under those 2 invoices under consideration. 61.On balance, I prefer the evidence of Tanko to that of Rysho. I am not satisfied that it is proved that the shipment of Rysho’s hi-fi systems to its buyers by air was effectively caused by the alleged late delivery of the speakers by Tanko to Rysho under the above 2 invoices. Loss of profits or chance of business 62.This forms the major part of Kysho’s claim. As a result of the late delivery by Tanko, Kysho has allegedly suffered loss of profit or chance of business with an US buyer ‘Roadrunner’ in an estimated sum of US$3,000,000; and with a French buyer ‘AKAI’ in an estimated sum of US$31,248. 63.According to Yasuda, Rysho was liable to compensate ‘Roadrunner’. He referred to an email dated 20 April 2009 from a Bruce Penslar of Roadrunner indicating his company’s loss. His company has allegedly not abandoned the idea to claim against Rysho. Eventually on 10 May 2007, his company, the Vanguard Group, claimed against Rysho for US$600,000. 64.The chronological sequence of events as alleged by Yasuda above is odd. In any event, according to the note dated 10 May 2007 from Penslar of Vanguard Group to Kysho, Kysho was supposed to pay a commission in the sum of US$600,000 to Vanguard for securing a total order of US$30,000,000, presumably worth of hi-fi systems, to be shipped within October 2007. Yasuda confirmed that in court. What that note recorded was apparently prospective in nature, in contemplation of the volume of the order for Rysho’s hi-fi systems. 65.The other document relating to Penslar was his email to Yasuda on 20 April 2009. This email reflects that Penslar learned about Tanko’s claim against Rysho. There was indeed mention of delay in shipment. But there was also allegation about the quality of the speakers supplied, that has never been raised at any material time. Penslar recalled a few models allegedly involved in the delayed shipments and cancellation of orders by the buyers. 66.I cannot help inferring that this was an email sent as a result of prior information about Tanko’s claim provided by Rysho to Penlsar. In any event, if Roadrunner (or Vanguard Group) had never abandoned the idea of claiming against Rysho as Yasuda alleged, I am surprised that Penslar had to spell out the models of the speakers involved merely by reference to his memory. There was mention of business loss but no mention of the US$600,000 commission. How Rysho came up with its estimated loss of in the sum of US$3,000,000 from this customer, as pleaded, is simply not substantiated. 67.In support of its claim for loss of profit or chance of business from ‘AKAI’, Rysho produced a few email exchanges between a Loni Muraben and Yasuda in September and December 2004 as well as January 2005. These were said to evidence the loss and damage suffered by Rysho as a result of Tanko’s breach of those PO in issue in the present case. But the first PO in issue in the present case was placed in February 2005. In terms of the time, those mentioned in the email exchange could not be the goods delivered pursuant to the PO and invoices in issue in the present case. 68.The email exchange between Muraben and Yasuda in September 2004 do suggest certain delay in the delivery of presumably the hi-fi systems. The explanation Yasuda gave for the delay seemed to be something to do with “NAKS inspection” without which Rysho, according to Yasuda in his email, could not ship the goods. Amongst other things, Muraben also complained that certain model of hi-fi systems supplied by Rysho contained no ‘USB’ feature. In terms of the substance, those complaints hardly had anything to do with Tanko. 69.There is far from cogent evidence to substantiate Rysho’s counterclaim for the alleged loss of profit or chance of business as a result of the alleged breach of Tanko. Delivery to FLX (HK) LImited 70.Due to delay in delivery (of goods pursuant to PO and under invoices, not being the subject matter of the claim), one of Kysho’s buyers, Hyundai, has allegedly cancelled the contract with Kysho. The goods for Hyundai, together with other components and accessories of Kysho, that had been delivered by Tanko to FLX (HK) Limited in the Mainland were detained as a result of the winding up of the factory.
71.In the premises, Kysho has allegedly suffered loss of profit or chance of business in the estimated sum of US$17,640; and loss of value of the components and accessories in the sum of US$287,798. 72.The allegation is that the deliveries were made at the time when FLX was about to be wound up. Whether it was the PO or Lam’s instruction, Tanko was supposed to deliver the goods to the factories in the Mainland as designated by Rysho. FLX (HK) Limited was one of them. In court, Yasuda suggested that there was somehow an obligation of Tanko to ascertain whether it was secure to deliver the goods to FLX in view of the circumstances. This defies normal understanding. Short of instructing Tanko to refrain from delivering the goods, Rysho could hardly hold Tanko responsible for not making the decision whether to do so. 73.The fact was that notwithstanding the alleged circumstances surrounding FLX known to Rysho since the summer of 2005 that got serious towards the end of the year, Rysho also delivered the components and accessories to FLX in as late as November 2007. Now Rysho also holds Tanko responsible for the alleged loss of those components and accessories. There is absolutely no basis for that. 74.Lok admitted that Rysho had informed Tanko that FLX had shut down its operation in early December 2005. Rysho asked for Tanko’s assistance to introduce a lawyer in the Mainland with a view to retrieving the goods and components held up in FLX. For that purpose, Rysho also asked Tanko for the original delivery notes. Tanko did; but as far as the contract between Tanko and Rysho was concerned, the goods were delivered and Tanko was entitled to be paid. I accept his evidence and stance in this respect. Declaration for indemnity 75.Rysho seeks a declaration effectively for an indemnity by Tanko against any its liability, if any, to compensate its buyers. So far there is no cogent documentary evidence from Rysho’s buyers in support of the alleged liability. Conclusion 76.I find that Tanko has not been in breach and Rysho has not treated Tanko to be in breach for late delivery until after Tanko put forward its claim through solicitors. Rysho had no defence to Tanko’s claim for the price of the goods sold and delivered at Rysho’s requests under the invoices in dispute. In any event, no part of the counterclaim on the ground of alleged late delivery of the goods by Tanko is substantiated and must be dismissed. Order 77.I give judgment in favour of Tanko against Kysho in the sum of HK$998,637.05 with interest thereon at the judgment rate from today until payment. The counterclaim is dismissed. I make a nisi order that Kysho shall pay Tanko’s costs of this action, including any costs reserved but without prejudice to any costs order made during the trial. Costs shall be taxed, if not agreed. For the avoidance of doubt, I certify the engagement of counsel. In the absence of application to vary within 14 days, the costs order shall become absolute.
Miss Angela GWILT instructed by Messrs Huen & Partners for the Plaintiff Mr Paul WU instructed by Messrs Chung & Kwan for the Defendant
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