Read the full judgment text of CACV 268/2011 on BabelCite. This Court of Appeal judgment was delivered on 14 March 2013 before Cheung CJHC, Lam JA, McWalters J.
Civil law – sale of goods – yarn supplied to knitwear manufacturer – alleged defects in bulk yarn not conforming to samples – 12-day trial – counterclaim upheld by trial judge in sum of $786,284.23 (later corrected by corrigendum from $1,017,434.29 to $783,152.92) – appeal against trial judgment – delay of 10 months and 16 days between conclusion of submissions and handing down of judgment – duty of judges to deliver judgments within reasonable time and to give adequate reasons – whether delay renders judgment unsafe – held: delay alone is not a ground of appeal; judgment will only be set aside where there are grounds for believing that errors are probably or possibly attributable to delay (Yeung May Wan v HKSAR; Mak Kang Hoi v Ho Yuk Wah) – distinguished from Esquire (Electronics) Ltd v HSBC – whether trial judge gave adequate reasons for preferring defendant's expert Dr Au over plaintiff's expert Dr Lo – held: inadequate because substantial challenge to Dr Au's 'apple to apple' comparison methodology was not addressed – whether trial judge erred in not addressing plaintiff's plea of acceptance of 14,284.33 lbs of yarn under 13 invoices – held: omission was critical and probably attributable to delay; defendant conceded that after set-off, judgment should be entered for plaintiff in sum of $33,981.26 ($817,134.18 unpaid price less $783,152.92 counterclaim) – whether trial judge gave adequate reasons for preferring defendant's witness Rita Law over plaintiff's witness Wayson Choy on assumption of risk and counterclaim – held: bare preference in one paragraph was inadequate – whether counterclaim award could stand – held: no, the judge merely stated conclusions without analysing the evidence or the substantial disputes, compounded by corrigendum errors – appeal allowed – judgment set aside – partial judgment for plaintiff in sum of $33,981.26 on concession – balance of claim and counterclaim remitted for retrial – costs below to be costs in the cause of the retrial – defendant to pay costs of the appeal with certificate for two counsels – court urged parties to consider mediation given that costs (already about $2.4 million for plaintiff and $2 million for defendant) were wholly disproportionate to amounts in dispute – application of Order 1A rule 1(c) RHC (Cap 4A) on proportionality.
Legal issues: Effect of delay in delivery of judgment on appeal · Adequacy of reasons for accepting Dr Au's expert evidence · Failure to address plea of acceptance · Adequacy of reasons for preferring Rita Law's evidence over Wayson Choy's · Adequacy of reasons for the counterclaim award
Outcome: Appeal allowed; judgment of the trial judge set aside; partial judgment for the plaintiff on the defendant's concession; balance of the plaintiff's claim and the defendant's counterclaim remitted for retrial before another judge
Cited by 3 cases · Cites 1 case