KOSOKU TRADING (HONG KONG) LTD v. ATTA PACK CO LTD

DCCJ1974/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1974 OF 2014

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JUDGMENT

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Background

1. This is an application of the plaintiff for summary judgment against the defendant under Order 14 r 1 of the Rules of the District Court.  The plaintiff’s claim is for outstanding payment arising from goods (paper) sold and delivered to the defendant.

2. After the defendant filed the Acknowledgment of Service, the plaintiff took out an Order 14 application on 18 June 2014.  However, the defendant failed to file its affirmation in opposition on the call-over hearing on 18 July 2014. The case was adjourned with directions, inter alia, that the defendant should file its affirmation in opposition on or before 8 August 2014.

3. No affirmation in opposition for the Order 14 application has ever been filed by the defendant. 

4. According to the affidavit of service filed on behalf of the plaintiff, a letter was served on the defendant by ordinary post to its registered address on 29 September 2014 informing the defendant of the hearing of the application for Order 14 on 11 November 2014.

5. In the present hearing, the defendant is unrepresented and has failed to appear to contest the application.

The plaintiff’s evidence

6. From the evidence, it is clear the plaintiff is a limited company incorporated in Hong Kong carrying on business of paper trading.  From the statement of account and debit notes provided, it showed that the defendant has been and is still indebted to the plaintiff for a total sum of RBM123,398.14 (“the said sum”) being the outstanding price of goods (paper) sold and delivered to the defendant by the plaintiff at the defendant’s requests between September 2008 and January 2009.  Despite repeated demands by the plaintiff and in particular the letter dated 13 May 2014 from the plaintiff’s solicitors to the defendant to pay the said sum, the defendant has failed to pay the plaintiff the same.

The Law

7. The policy of summary judgment is to prevent delay in cases where there is no defence: European Asian Bank Att-Gen v. Punjab and Sind Bank (No.2) [1983] 1 WLR 642 at 654: see Hong Kong Civil Procedure 2014 at § 14/4/8.

8. The primary obligation is on the defendant to satisfy the court that there is a triable issue or question or that there ought to be a trial for some other reasons: see Hong Kong Civil Procedure 2014 at § 14/4/3.

9. When the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment for the plaintiff: see Hong Kong Civil Procedure 2014 at §14/4/8.

10. Under s. 51(1) of the Sales of Goods Ordinance, Cap 26, it provides that:-

“Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.”

Conclusion

11. The plaintiff’s case goes unchallenged.  The property of the goods has already passed to the defendant.

12. Hence, I am satisfied that the plaintiff has established the right to final judgment for RBM123,398.14 or the Hong Kong dollar equivalent at the time of payment, together with pre-trial interest from the date of the writ of summons to the date of judgment and thereafter at judgment rate until payment.

13. I also make costs order nisi that the costs of this action, including costs of this application, be paid by the defendant to the plaintiff, to be taxed if not agreed.  This costs order nisi will become absolute after 14 days from date of delivering of this judgment.