UNIPOWER INDUSTRIAL LTD. v. JANE MARK LTD. t/a CAMMIE TOYS & DOLLS INDUSTRIAL CO.

HCA14040/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.14040 OF 1997

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J U D G M E N T

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1. This is an action in which the Plaintiff claims $241,509.76, being the outstanding price of goods sold and delivered.

2. In its Defence and Counterclaim, the Defendant admits the sums of $120,408.08 and $20,862.08, leaving a balance of $100,239.60 in dispute. In respect of that $100,239.60, the Defendant says that it is the subject matter of Purchase Order 701 dated 30th April 1997. It is stated on that Purchase Order that the delivery date was to be 15th May 1997. The Purchase Order itself does not contain any express provision to the effect of time being of the essence of the contract. The Defendant goes on in his Defence to contend that time was, by reason of matters set out therein, of the essence of the contract; and that the Plaintiff was in breach by late delivery, as a result of which the Defendant allegedly accepted the Plaintiff's repudiation.

3. The Defence goes on to allege that the Defendant lost the contract price under a sales contract with its purchaser customer. The Defendant counterclaims the contract price under that contract plus storage charges, plus further loss and damage unspecified in respect of alleged loss of that customer, although giving credit for the sale of some of the products under the contract with the customer.

4. Before the trial began this morning, I received a summons taken out by Messrs Hong Lee & Co., solicitors on the record for the Defendant, asking for an order that they ceased to act. I granted that application. The Defendant was not represented by any solicitor.

5. The Plaintiff called three witnesses confirming the contents of their witness statements. It is common ground that the goods were delivered after the date of 15th May 1997. As noted earlier, the Purchase Order does not expressly state that time of such delivery was of the essence. More importantly, Mr Lau, the sales manager of the Plaintiff, confirmed in his evidence that the goods were delivered after the contractual delivery date at the express request of a director of the Defendant. His evidence has not been challenged and I accept his evidence.

6. In my judgment, therefore, the Defendant cannot complain about late delivery. The defence to the Plaintiff's claim therefore fails. For the same reason, the Counterclaim also fails. Another reason why the Counterclaim must fail is that the Defendant has not appeared to adduce any evidence in support of its case.

7. The Orders that I made are :

1. The Defendant do pay to the Plaintiff HK$241,509.76 together with interest thereon at the rate of 11.5% per annum from 23rd December 1997 to the date hereof and thereafter at judgment rate until payment.

2. The Counterclaim is dismissed.

On the question of costs, I have been told that the Defendant sent a fax at 6.45 p.m. yesterday to solicitors for the Plaintiff by which time Brief to Counsel had already been delivered to Counsel for the Plaintiff. The fax may be puzzling to solicitors for the Plaintiff because that communication does not come from those solicitors on the record for the Defendant. My order on costs is :

3. The Defendant do pay the Plaintiff the costs of this action, including the costs of the Counterclaim.

4. The sum of HK$241,509.76 paid into Court by the Defendant on 15th June 1998 and interest, if any, be paid out to solicitors for the Plaintiff.