LITECRAFT ELECTRICAL & METAL MFG. LTD. v. ELSCO LIGHTING ASIA LTD.

1991, No.A7620

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. I am seized with an action between the Plaintiff, Litecraft Electrical & Metal Manufacturing Limited and the Defendant, a company known as Elsco Lighting Asia Limited.

2. The claim by the Plaintiff is for goods sold and delivered. These goods, I understand, are lighting components, and as such are represented by invoices, twelve in number, issued and sent to the Defendant in the period between 30th November 1989 and 3rd September 1990. In total they amount to the sum of $185,215.00. The brief Statement of Claim recounts that despite repeated demands, this accumulated sum remains unpaid, and the Plaintiff claims this sum as being due and owing.

3. From the Plaintiff's view point, therefore, this case is very simple. The Defendant, on its pleadings at least, raises a number of issues in its Defence and Counterclaim, helpfully recounted to me in general terms by Ms Chan, who appears today for the Plaintiff; essentially, so far as I can gather the position, these issues centre upon claims that the goods were defective, that the invoices overstated the sums due, and that a certain amount of the goods represented by these invoices were sent to the Defendant on consignment only.

4. Ms Chan has fairly outlined the broad nature of the defence, and she has done so because today the Defendant is not represented before me. I had the case called on two separate occasions, but there is no representative of the Defendant available and here in Court. I am not totally surprised by this development since at a pre-trial review which, I am reminded by Ms Chan, took place before me on 26th September this year, no representative of the Defendant then appeared either. So perhaps that was a foretaste of matters to come. Ms Chan has also handed me a letter dated 22nd October 1997, which she tells me was sent to the Defendant and which is in the following terms :

"Dear Sirs

We would like to inform you that we have on 26th September attended the High Court before His Honour Judge Stone and the case will proceed to trial from the 29th October 1997. ..."

The letter then goes on to say that Ms Chan, the Plaintiff's solicitor, would prepare all necessary documentation for the trial and concludes as follows :

"... You are obliged to put in an appearance in Court otherwise we would apply to have judgment entered against you and ... we would strongly resist any fresh adjournment ..."

5. So there really appears to be little scope for any reasonable doubt that the Defendant has been aware of these proceedings; indeed this letter of 22nd October 1997 was useful and constructive in seeking to apprise the Defendant of the situation. Nevertheless, as I have said, no one on behalf of the Defendant has appeared today.

6. Accordingly, Ms Chan was asked to proceed and to prove her case, which as I have already observed is a simple one. She placed in the witness box a director of the Plaintiff, Mr Pun Kwok Wa, whose Witness Statement was before the Court. Mr Pun confirmed the truth of his Witness Statement and under questioning from Ms Chan, and from the Bench, confirmed first, the existence of these invoices and secondly, the fact of non-payment. He confirmed that the sum of HK$185,215.00 continued to be due and owing and that no sums had been received from the Defendant. He also indicated that in broad terms he was aware of the Defence put up by the Defendant, but stated that none of the allegations therein were true.

7. In the circumstances, I consider that the Plaintiff has amply proved its case. Accordingly, and after hearing Ms Chan on the questions of interest and costs, my Order will be as follows :-

1 That there be judgment for the Plaintiff in the sum of HK$185,215.00;

2 That there be interest on the said sum from the date of the writ, i.e. 8th October 1991, to the date of judgment, namely today's date, 29th October 1997, at the rate of 8% with interest on the said judgment sum to continue thereafter at the judgment rate from time to time prevailing.

8. It follows from the foregoing that the Plaintiff is to have the costs of this action, to be taxed if not agreed, on the usual party-and-party basis. In this connection, Ms Chan has pointed out that the costs of the pre-trial review were reserved; although I cannot now remember, I assume that was because at that hearing the Defendant was not represented and I was disinclined at that stage to make a costs order in the Defendant's absence, thinking no doubt that there was still a possibility that the Defendant would appear for trial. That has not happened, however, and given the history of the matter, I now make this costs order in favour of the Plaintiff, such costs to include the costs of the hearing of the pre-trial review on 26th September 1997.

9. I believe that there is nothing further outstanding. I thank Ms Chan for her assistance.