NISHA ELECTRONIC INDUTRIES LTD v. GOOD LONG LTD

DCCJ983/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 983 OF 2002

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J U D G M E N T

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1. This is the judgment for assessment of damages suffered by the Plaintiff.

2. There is a claim for $271,622.00, being payment to Cheerful Enterprise Company Limited for costs in the High Court Action No. 993 of 2001.  But no payment in this sum was actually made.The Plaintiff paid $65,000 in relation to costs to the Plaintiff under High Court Action No. 993 of 2001. 

3. The Plaintiff also paid $5,009.00 to Messrs. Robertson, solicitors.

4. David Rimmer and Nisha Chugh did help out Mr Chugh, director for the Plaintiff in this case on gratuitous basis.  Therefore the time spent by them will not be included in the administration time claimed by the Plaintiff.

5. The time spent by Mr Chugh for the said High Court Action is about 100 hours.  His gross monthly income is $40,000, so the cost of administration time relating to him is about $20,000.

6. The last item for loss of damage is the loss of profit in the region of $150,000.00 for Mr Chugh not being able to travel for business and the Defendant’s refusal to supply merchandise to the Plaintiff.  Mr Chugh has to travel 3 times per year in order to get orders from overseas buyers to buy his products which he purchased from China.  The Defendant is the main supplier to the Plaintiff, occupying about 80 to 85% of the goods obtained by the Plaintiff.  The last occasion the Plaintiff obtained goods from the Defendant is in 2001.The onus is on the Plaintiff to prove that it is due to the High Court Action No. 993 of 2001 that the Defendant refused to supply him with goods any further.  The only evidence revealed is that the representative of the Defendant once told him, in respect of the supply of goods to the Plaintiff, to wait for the High Court Action to be over.  Hence, the true reason for the Defendant not to deliver goods to the Plaintiff is unknown because the statement “to wait for the High Court case to be over” is ambiguous.In any event the Defendant is not under a legal duty to sell goods to the Plaintiff. 

7. Mr Chugh used to go overseas 3 times a year.  Each time he would spend about 3 weeks overseas.  The trips took place in March, July, August or September.  Mr Chugh did not go for the overseas trips because the Defendant refused to sell goods to him.  Therefore, he must not have sufficient goods to be sold.The other reason for his not going overseas is because of the High Court Action.

8. The O.14 application in High Court Action No. 993 of 2001 took place on 18^thMay, 2001, and the date of judgment was 23^rdMay, 2001.  So there is nothing to prevent Mr Chugh to take the July and August or September trip to go abroad.

9. Because of this reason, I decline to award any damage for loss of profit.

10. The total amount awarded, namely $90,009, is particularised as follows:                           

1.	Payment to Benny Kwong	$65,000
2.	Payment to Robertsons solicitors	$5,009
3.	Costs of administration time	$20,000

11. From this amount of $90,009, the sum of $50,000 already paid by the Defendant to the Plaintiff is to be deducted.  The net amount the Defendant has to pay the Plaintiff is the sum of $40,009.00.

12. I therefore make an order that the Defendant do pay the Plaintiff the sum of $40,009 within 14 days from today, with interest thereon at judgment rate from the date of service of the writ until payment.

13. Subject to orders relating to costs already made by me, costs of these proceedings relating to the assessment of damages to be borne by the Defendant, to be taxed, if not agreed.