FU TEK ELECTRONICS CO. LTD. v. KIDDER INDUSTRIAL LTD.

HCA 11470/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11470 OF 1997

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J U D G M E N T

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1. This is an action by the plaintiff to recover price of goods sold. The defendant refused to take delivery as the goods were not delivered in accordance with the schedule of delivery. The defendant counterclaimed for balance of deposit paid. The plaintiff was neither present nor represented at the hearing. The plaintiff's claim is therefore dismissed.

2. The defendant's counterclaim is as follows. The plaintiff had contracted to supply the defendant with 900,000 pieces of integrated circuit chips and 900,000 pieces of liquid crystal displays. The chips and liquid crystal displays were to be supplied in specified assortments and by a number of deliveries in accordance with a delivery schedule. It was a condition of their agreement that the deliveries should be made within 10 days of the scheduled delivery date. The defendant paid a deposit of $2,400,000. Part of the goods were supplied and paid for partly by letter of credit and partly from the deposit. The defendant refused to take delivery of the balance of the goods as the plaintiff failed to supply them in accordance with the assortment and within 10 days of the scheduled delivery date. The plaintiff counterclaims for return of the balance of the deposit in the amount of $850,194.60 and damages for the plaintiff's breach.

3. In the absence of evidence from the plaintiff, I am satisfied that the counterclaim in respect of the balance of deposit has been proved on a balance of probability. The defendant did not pursue its counterclaim for the other damages arising out of the plaintiff's breach. Accordingly, I enter judgment in favour of the defendant on its counterclaim in the amount of $850,194.60 with interest at half judgment rate from 22 January 1998 until today and thereafter at judgment rate until payment, with costs to the defendant, to be taxed if not agreed.