Hayton International Ltd v. Massoni Treasures (Mandarin) Ltd

CACV000125/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, VP, Clough, JA, & Nazareth, J.

Date of hearing: 23 October 1990

Date of delivery of judgment: 23 October 1990

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JUDGMENT

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Sir Derek Cons, VP:

1. In January 1989 Charles Yong, then the Sales Director of Hayton International Ltd.   ("the Plaintiff"), entered into an arrangement on behalf of the Plaintiff with one John Chan acting for Massoni Treasures (Mandarin) Ltd. ("the Defendant") of which he is the Managing Director.  The subject of the arrangement was a number of watches valued at $95,020.90.  They were a completely new line of watches bearing the brand name of a company which apparently is very well known in other fields but not in that of watches. As a result the watches were sent to the Defendant where, as far as I know, most of them remain. No payment was made for them.

2. Eventually the matter came to an action in the District Court, the Plaintiff claiming for goods sold and delivered, to be paid for within 45 days. The Defence filed alleged that there had been no outright sale, but instead one on consignment for sale or return of the watches within 90 days, with a provision for earlier termination at the option of either side.

3. The hearing in the District Court action came on before Judge Wally Yeung in February this year. One witness was called for the Plaintiff, the Administrative Director, a Mr. Mak. He had no personal knowledge of the sale, although he had actually signed the invoice that was issued in the course of it, but his evidence was general, and to the effect that although his company did enter into sales on a consignment basis it would only do so in respect of expensive watches - (the watches in question did not fall within that category) -, and even then the invoice would have typed onto it the words "on approval".  He gave to the judge below an example of such a sale.  The documents appear in the bundle at pp. 80 and 8l.  I note that the invoice was also signed by Charles Yong.

4. The Defendant called two witnesses.  The first was John Chan, the Managing Director.   His evidence was then supported by Charles Yong who, we understand, had since left the Plaintiff company in what Mr. Mak described as unhappy circumstances.  Both were adamant that the arrangement between them was for sale on a consignment basis.

5. The only other evidence in the case was the invoice drawn up at the time, which appears at pp. 78 and 79 of the bundle.  Again it was signed by Charles Yong.  It sets out the details of the watches in question and their respective prices.  Then there is a printed note at the foot which refers to interest becoming chargeable if payment is not received by the Plaintiff on the due date.  But the important part is the words typed in, also at the foot, simply "Terms 45 days". The explanation for those words given by Charles Yong, and supported to some extent by John than, was that they were inserted because Charles Yong thought it necessary to have a review of the situation after 45 days.

6. In giving judgment the judge observed that the explanation by Mr. Yong "might not be entirely satisfactory". Nevertheless he continued, in giving his reasons,

7. This appeal, which is brought with the leave of the judge himself, turns entirely on a question of fact.  It is argued, albeit not quite so shortly or bluntly, that the judge got it wrong.  It is well accepted that this Court is very slow to reverse the decision of a judge which turns to any extent on his view of the credibility of witnesses.   But it will do so more readily where the judge has failed properly to appreciate the value of other evidence, as, with respect to the judge below, I feel that in this case he did.

8. He concluded, as I have just quoted, that there was no contradictory evidence to that of Mr. Chan and Mr. Yong.  In so doing he must have overlooked the invoice.  Contemporary documents from their very nature inevitably have great evidential value.  They are drawn at a time when there is no dispute in existence. For myself I do not find the invoice ambiguous, as the judge did, and I find it impossible to reconcile the words "Terms 45 days" with a sale on consignment. In all the circumstances as they were, these words cannot be simply dismissed by an explanation which the judge himself found "not entirely satisfactory".

9. For that reason I have no hesitation in thinking that this is indeed one of the rare cases referred to by Lord Reid in Benmax v. Austin Motor Co. Ltd. [1955] Ac 371 where this Court should interfere. I would allow the appeal, set aside the judgment below, enter instead judgment for the Plaintiff in the sum claimed and, subject to any further argument by counsel, with costs here and below.

Clough, JA:

10. I agree.

Nazareth, J:

11. I also agree.

Representation:

Kenneth C.L. Chan (M/s. Ng, Lie, Lai & Chan) for the Plaintiff/Appellant

Nigel Kat (M/s. F. Zimmern & Co.) for the Defendant/Respondent