Ning Tien Ching v. Lo Chun Chi
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1570 OF 1971 ----------------- BETWEEN
----------------- Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. By an agreement in writing dated April 24th 1970 the Defendant agreed to sell to the Plaintiff the sole right to show a film called “Chan Ching Koo”. It was further agreed that the Defendant would provide the Plaintiff with two copies of the film, 4 copies of a trailer advertising the film, 25 sets of colour prints, 4 sets of black andwhite prints and 10 copies of a synopsis of the film. 2. The price was to be $40,000 of which $10,000 was to be based upon the signing of the agreement and $30,000 when the copies of the film were received by the Plaintiff. 3. Clause 9 of theagreement reads (in translation) as follows:- ““B” is requiredto send a hand over to “A” the copy of the film, preview films, photographs in the numbersrequired in 30 days from the dayof signing the contract. Should “B” be unable to deliver the film to “A” at the said time. “A” can reject the purchase. Apart from taking back all the money paid to “B”, “A” can demand for compensation at $40,000 only.” 4. “A” is the Plaintiff, the purchaser. “B” is the Defendant, the vendor. 5. The Plaintiff paid a deposit of $10,000 and was given a receipt for it on April 25th 1970, two days after the agreement was signed. 6. It is common ground that the Plaintiff has never received the film. In this action he claims the return of his deposit of $10,000. The Statement of Claim also included a claim for $40,000 stated to be ‘liquidated damages’. But this part of the case for the Plaintiff was abandoned at the trial. I think that this was right, because the sum, which is the sum referredto in Clause 9 of the agreement, which I have set out above is obviously a penalty. 7. The Defendant pleaded that he had orally told the Plaintiff that the goods, the subject matter of the contract, were ready for delivery on or about May 24th, but that the Plaintiff had failed to collect them. And the Defendant counterclaimed for damages for breach of contract. He claimed the balance of the purchase price, namely, $30,000 and damages for breach of contract. 8. I agree with Mr. Lee, counsel for the Plaintiff, that there are only two issues in this case. The first issue is what is the true construction of Clause 9 of the agreement. The second issue is were the goods in a deliverable state at the expiration of 30 days from the signing of the contract, i.e. on May 24th 1970? 9. I am of the opinion that Clause 9 clearly imposes a duty on the Defendant to deliver the goods to the Plaintiff. As soon as he does so the Plaintiff must pay the balance of the purchase price. 10. The Defendant never delivered the goods to the Plaintiff. As to this he said two things. At first he said he notified a Mr. Yu, who introduced the parties to each other and acted as a broker of the transaction, to tell the Plaintiff that the goods were ready for delivery. He also said that it was a custom of the trade that the purchaser would notify the vendor of a time for delivery of the goods, suitable to the purchaser. This would be at a time when the purchaser was ready and willing to pay. 11. As to the first point I do not think that the contract imposes a duty on the Plaintiff to notify the Defendant when he is ready to receive the goods. Nor in my view is it enough for the Defendant to say “the goods are ready, come and fetch them”. The duty of the Defendant is to hand over the goods to the Plaintiff. 12. Copies of the films and the preview films were made by a firm called Universal Laboratory Limited. An invoice was produced showing that on May 10th 1970 theDefendant owed that firm a large sum. Included in the account are the copies of Chan Ching Koo and its trailers. These were not paid for, according to the evidence of Mr. Yu, until after the end of May. I think that what the Defendant was saying was that the Plaintiff should take delivery of the goods, pay him, and then he could settle with Universal Laboratory Limited. 13. This is a different mode of delivery from that specifically agreed to by the parties in Clause 9 of the agreement. 14. The Defendant said that he heard from Mr. Yu that he, the Defendant was unable to accept delivery as he could not find a cinema in which to show the film. At first he said, Mr. Yu told him that the Plaintiff wanted an extension of time until July 1970. This request was passed on to the Defendant before the expiry of the 30 days period mentioned in the contract. 15. Mr. Yu gave evidence on subpoena. He said that after the agreement had been signed his part in the transaction was at an end. He denied telling the Plaintiff to go to the Defendant to collect the goods. He said the Defendant on one occasion asked him to do this, to tell the Plaintiff to take delivery of the goods. However he could not find the Plaintiff and so he gave the Defendant a piece of excellent advice. He told him to phone the Plaintiff himself. But said the Defendant admitted this, he did not do so. 16. Mr. Yu said that he did not know if the Plaintiff asked for an extension of time for delivery of the goods. In this respect his evidence contradicts that of the Defendant. The Plaintiff stoutly denied making any such request when giving evidence. 17. I do not accept the evidence of the Defendant that the Plaintiff asked for an extension of time. I accept the evidence of Mr. Yu and the Plaintiff on this point. 18. As to the second point, the Custom of the Trade cannot be prayed in aid of the Defendant here, since the words of Clause 9 of the agreement themselves exclude it. They lay down a mode of delivery other than is provided by such custom, if such a custom does exist. I say this, for the custom has not been proved properly before me. 19. In the event the Plaintiff must succeed. There will be judgment for the return of the deposit of $10,000 with costs. The counterclaim is dismissed with costs.
Martin Lee (Peter Mo & Co.) for Plaintiff Caesar Wong (Philip Remedies & Co.) for Defendant |