Crystal Gems (HK) Ltd v. Wah Ngai Hong Jewelry Co Ltd
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HCA 902/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 902 OF 2012 ________________
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________________________ J U D G M E N T ________________________ Introduction 1.This is a claim by the plaintiff against the defendant for the price of diamonds sold by the former to the latter together with interest and costs. 2.At the commencement of the trial, a Mr Li Chi Hung (“Mr Li”), a director of the defendant, made an application before me for leave for him to represent the defendant. There was originally on record a solicitors’ firm acting for the defendant. That firm no longer acts for the defendant. 3.It transpired that Mr Li on behalf of the defendant had already made an ex parte application before Master Ho on 15 July 2014 for a similar order. That application was made under Order 5, rule 6(3)(a) of the Rules of the High Court which provides as follows:
It was rejected by Master Ho. Order 5, rule 6(4) goes on to provide as follows:
The application by Mr Li before me was not even an appeal against Master Ho. I was firmly of the view that I had no jurisdiction to disturb Master Ho’s Order refusing leave. I therefore dismissed Mr Li’s application and proceeded to deal with the case on the basis that the defendant was absent and unrepresented. The facts 4.Two witnesses were called to give evidence for the plaintiff, namely, a Mr Shah Tushar Arvindkumar (“STA”) and Mr Shah Prasannkumar Kantilal (“SPK”). 5.On 10 March 2011, STA took five lots of diamonds to the defendant. The defendant decided to purchase two of those lots, namely, Lot D11223 and Lot D11222. Lot D11223 consisted of 380.87 carats and Lot D11222 consisted of 369.92 carats. It was agreed between STA and the representatives of the defendant that the latter would be entitled to reject about 10% of each lot. 6.In the abovementioned circumstances, STA made out the following documents which he handed to the defendant on the spot:
STA explained that documents (i) and (ii) would make up roughly the total weight of the original Lot D11223 and documents (iii) and (iv) would make up roughly the total weight of the original Lot D11222. 7.The return of the diamonds by the defendant to the plaintiff under the two Consignment Notes did not take place immediately but in May 2011. 8.The delivery of the two lots of diamonds and the return of the rejected portions, inter alia, were all recorded by STA in his log book. 9.On 16 May 2011, STA took eight lots of diamonds to the defendant. The defendant decided to buy only one lot, namely, Lot D11219 weighing about 418 carats. The defendant asked for a 15% rejection rate and STA agreed. 10.In similar fashion as before, STA issued to the defendant the following two documents:
11.Again the delivery and the return were recorded by STA in his log book. 12.Eventually, the price under Sales Invoice No 30193 was paid by the defendant by way of four cheques in July, September and October 2011. 13.In relation to Sales Invoices Nos 30192 and 30428, however, despite repeated demands by the plaintiff, the defendant only settled a small part of the price for the diamonds under Sales Invoice No 30192 when, according to SPK, a sum of US$20,000 was paid in cash by the defendant to him for the plaintiff as partial payment. My findings 14.I accept the evidence of both STA and SPK. 15.I find that the defendant is liable to pay to the plaintiff the prices for the diamonds under the two Sales Invoices Nos 30192 and 30428 subject to the deduction therefrom of the sum of US$20,000. 16.The two Sales Invoices in question also set out on their back the terms and conditions of the sale. Clause 9 thereof reads as follows:
17.I find that the defendant is liable to pay such contractual interest to the plaintiff in accordance with the said Clause 9. 18.Mr Ngai in paragraphs 18 and 19 of his Written Closing Submission for the plaintiff has helpfully worked out the calculations for the contractual interest as follows:
19.I gratefully adopt those figures. Conclusion 20.I give judgment to the plaintiff against the defendant in the sum of US$486,179.48 (US$129,563.28 – US$20,000 + US$173,950 + US$83,655.81 + US$119,010.39). 21.The defendant is also liable to pay further interest to the plaintiff at the rate of US$186.42 (US$72.04 + US$114.38) per day from 22 July 2014 until judgment. 22.The defendant is also to pay costs to the plaintiff to be taxed on a party‑and‑party basis, if not agreed.
Mr Lawrence L K Ngai, instructed by C T Chan & Co, for the plaintiff The defendant was not represented and did not appear | |||||||||||||||||