LOW SWEE HENG INTERNATIONAL CORPORATION LTD v. HONG KONG YUNG HONG TRADING CO LTD

BETWEEN

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JUDGMENT

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Kempster., J.A.:

1. This is an appeal from the judgment of Deputy Judge Leathlean, given on the 22nd of November of last year, whereby the defendants were held liable to pay to the plaintiffs the sum of HK$114,960 with interest thereon at the rate of 2% over prime as from the 8th of September of 1983. The proceedings were properly brought and properly continued by the Receiver for debenture holders despite the appointment of a provisional liquidator on the 26th September 1984.

2. From the documents adduced in evidence at trial the material events would seem to be as now set out.

3. By an agreement in writing dated 8th September 1981 BA Finance (H.K.) Ltd. hired out an Audi motor-car to the plaintiffs for reward. The plaintiffs fell behind with their payments and, by letter dated 6th September 1983, BA Finance determined the hiring. They were entitled so to do under the provisions of clause 7 of the agreement and, in any event, also entitled to treat that agreement as repudiated as they did.

4. At the time the vehicle was in the custody of repairers whom, by letter dated 7th September 1983, BA Finance had informed of their interest in it.However, imediately or immediately, the plaintiffs then paid up and BA Finance accepted what was owing and thereby waived the breach. The parties thus reinstated the agreement.

5. On 8th September 1983 BA Finance authorized the repairers to release the vehicle to the plaintiffs who were said to have become owners on complying with all the requirements of the agreement; by inference pursuant to the option to purchase.

6. On 21st February 1984 the plaintiffs commenced proceedings against the defendants in the High Court charitably to be construed as showing causes of action grounded in detinue and conversion. The Defence, dated 16th April 1984, claimed title for the defendants. It alleged a sale by BA Finance to one William Lo and a resale by Lo to the defendants evidenced by a letter dated 10th September 1983.  I observe that no such letter was, apparently, adduced in evidence.

7. At the hearing it transpired that a Mr. CHAN Dick-long had been duly authorized to act for and on behalf of the plaintiffs. There was no evidence that he had. been authorized to sell the car on their behalf but there was evidence that he had discharged their liability to BA from unexplained resources. By so doing he rendered. the vehicle the plaintiffs' property. That Vehicle was valued, by reference to an equivalent car, at HK$115,000. The defendants elected to call no evidence.

8. Also taking into account the terms of the Defence, which involved an assertion of the earlier title of BA Finance, the learned deputy judge found, as he was bound to do, that the car had become the property of the plaintiffs and that they were entitled in detinue to its return and to damages or alternatively to damages for conversion. He gave judgment for the, sum already mentioned in conversion on the footing that the car had at some stage been damaged albeit it was apparent on the evidence that at the material time such damage had been made good by the repairers. I do not think that. his necessarily arbitrary assessment as to the sum recoverable by way of damages for conversion can be faulted and reject the second ground of appeal accordingly as I do the further ground which I deem to mean that the learned judge should have subtracted from the figure of HK$115,000 more than $40 on account of the damage sustained and made good.

9. The first ground of appeal was that the learned judge erred in finding that the plaintiff was at the date of issue of writ the owner of the motor vehicle. But having regard to the terms of paragraphs 2 and 3 of the Defence it is really unarguable, certainly on the balance of probabilities, that title was not duly derived by the plaintiffs from BA Finance under the provisions of the Hire Purchase Agreement.

10. There is a final ground relating to the rate of interest awarded being 2% above prime. That was a point not raised below and not therefore available to the defendants on appeal.

11. I would dismiss the appeal.

Sir Alan Huggins, V.-P.:

12. I also would dismiss the appeal. In my view it was never in issue at the trial whether BA Finance were the owners of the vehicle. The only issue which was raised and upon which evidence was given was whether the sale by BA Finance was to the plaintiffs or to a Mr. William Lo through whom the defendants claimed title. The judge was perfectly entitled on the evidence to find that the sale was to the plaintiffs and it was not open on this appeal for the appellants/defendants to allege that BA Finance had no title.

13. I entirely agree that the judge was entitled to find as he did as to the value of the car.

Fuad, J.A. :

14. I agree with the judgments of my Lords and that the appeal should be dismissed.