HUNG SAM INDUSTRIAL MANUFACTORY LTD v. YAU CHI KWAN formerly t/a TUNG SHING TRADING CO

HCA 1869/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1869 OF 2007

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J U D G M E N T

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1.  This is an application by the Plaintiff for summary judgment.

2.  The Plaintiff is a manufacturer of electronic toys.  The Defendant was a customer of the Plaintiff for such products.  The Defendant used to carry on business under the name of Tung Shing Trading Company.

3.  The Plaintiff claims against the Defendant for the outstanding price of the goods delivered to the Defendant during the period between October 2001 and February 2007.  The Plaintiff’s claim amounts to ¥2,433,856.85.

4.  The Plaintiff relies on a bundle of purchase confirmations (“the Purchase Confirmations”) which, the Plaintiff says, recorded the orders placed by the Defendant for the goods.  According to the Plaintiff, all the Purchase Confirmations have been signed by the Defendant or its agent.

5.  In addition, the Plaintiff has produced several bundles of delivery notes or receipts (“the Receipts”) which, according to the Plaintiff, evidenced delivery of various quantities of the goods manufactured to the Defendant’s order.  As is apparent from the documents, the majority of the Receipts contain the signatures of the Defendant or his agent.  On the basis of the Receipts, the Plaintiff has prepared monthly statements (“the Monthly Statements”) which are essentially monthly ledgers setting out details of the date of the various deliveries, model numbers of the products delivered, quantities, unit and total price, payment made by the Defendant and any outstanding amount for the particular month.

6.  As is also apparent from the documents, there had been occasions when payment was made in cash upon delivery of the goods.  As a result, no reference is made to these deliveries in the Monthly Statements and they form no part of the Plaintiff’s claim in this Action.

7.  The Defendant does not dispute that there had been a course of dealings between the parties.  However, he challenges the accuracy, and in some cases, also the authenticity of the documents relied upon by the Plaintiff.  Various issues were raised by the Defendant in relation to specific transactions.  I do not propose to summarize all the specific issues at this stage but will deal with them in my discussion of the evidence below.

8.  I should record that Mr Lau (counsel for the Plaintiff) has indicated that the Plaintiff would not seek summary judgment in relation to the part of its claim attributable to the 9 months between October 2001 and June 2002, totalling ¥433,919.60.  The present application is therefore confined to the remaining part of the claim spanning the period between July 2002 and February 2007, totalling ¥1,999,937.25.

9.  Also the Plaintiff is content that the issue relating to its claim for contractual interest (at the rate of 1% per month) should be reserved for trial.

10.  I should also record that the Plaintiff did not object to the production of the several documents annexed to the Supplemental Submissions of Miss Ma (counsel for the Defendant).  Those Annexures are treated as part of the evidence for the present application.  The Plaintiff was given leave to file further evidence, which it did by way of Mr Sin Chin To’s Fifth Affirmation, primarily to exhibit its version of Miss  Ma’s Annexure A.

11.  As a considerable number of documents will need to be referred to in the discussion of the evidence, I propose to refer to the documents by the page number marked on the hearing bundles.

Disputes over Payments

March 2002 (¥100,000)

12.  The dispute relates to a payment by the Defendant of ¥100,000 in March 2002.  It is common ground that the sum was received by the Plaintiff.

13.  The Defendant says that the sum should be included as his payment for the goods for the month of March 2002.  Hence, instead of being recorded as having tendered payment of only ¥1,073,544 (C1, p. 2), the total payment should have amounted to ¥1,173,544 for that month (YCK-1, p. 10).

14.  The Plaintiff says that the sum was agreed between the parties to be held as a deposit to ensure that the Defendant would take delivery under a specific transaction that was separate from their running account.  In the event, as the Defendant had failed to take delivery under that transaction, the sum was treated as having been forfeited.

15.  There is no dispute that the sum was to be treated as a deposit, and indeed, there was a letter from the Plaintiff to that effect (C1, p. 405).  It was also recorded in the Monthly Statement of April 2002 (C1, p. 375) that the sum of ¥100,000 was not to be treated as the Defendant’s tender of payment (see also YCK-1, p. 11 to the same effect).  Such evidence clearly supports the Plaintiff’s case in this regard.

16.  The Defendant, whilst admitting that the payment was a deposit, alleges that the Plaintiff was not entitled to have sum forfeited.  However, there is no evidence that when the Plaintiff forfeited the deposit by way of its letter on 1 June 2002, the Defendant had in any way protested or questioned the basis of the forfeiture.  Apart from the general assertion in his Affirmation that the forfeiture of the sum was wrongful, the Defendant has not produced anything to substantiate the basis of such allegation.

17.  The Defendant has clearly failed to set up any triable issue on this point.

August 2002 (¥59,530)

18.  The item relates to a sum of ¥59,530 under an invoice no. 0208010A which, the Defendant says, had already been settled.  There is obvious discrepancy between the copies of the Monthly Statement produced by the parties (compare C1, pp. 433, 434 with C6, pp. 2532, 2533).  The Defendant also drew attention to the figure in “the Check Account” (C6, p. 2530) which showed that the value of the goods delivered in the month of August 2002 was originally recorded (by the Plaintiff) as ¥1,096,979.50, which would have corresponded with the figure without the value of that invoice in question.

19.  It seems reasonably obvious that the relevant entry relating to invoice no. 02080101A was only subsequently inserted into the copy of the Statement produced by the Plaintiff (C1, p. 433).  A close examination of the different copies of the Statement also reveals that the original figure which has been masked at (C6, p. 2533) has actually been redacted and replaced with the figure of ¥1,156,509.50 now appearing at (C1, 434) (compare the position of the respective figures with reference to the entry dated 29/8/02 immediately above).

20.  Mr Lau pointed to the documents at (C2, pp. 455, 456) and submitted that the Defendant has, by his signature, acknowledged delivery of the goods under the relevant invoice (C2, p. 456).  But even so, the question remains whether or not payment under that particular invoice had already been settled, bearing in mind that there had been occasions when payment was made upon delivery.

21.  In the circumstances, given the fact that the contemporaneous documents did not initially show this invoice to be outstanding, I am satisfied that there is a triable issue regarding the sum of ¥59,530 allegedly due under this invoice no. 02080101A.

August & September 2002 ($119,780.57)

22.  The Defendant contends that according to the remarks column in the Check Account, a sum of $119,780.57 has been paid on 8 October 2002 in respect of deliveries in the months of August and September 2002 (C6, pp. 2526, 2530).  The receipt of this sum has not been accounted for in the Plaintiff’s claim.

23.  Mr Lau submitted that if it had been a payment, the sum should be recorded in the payment column of the Check Account and not the remarks column.  The Plaintiff’s case is that the remark in question serves only as a record of the cash payment for deliveries in those 2 months.  Since deliveries which had already been paid for by cash form no part of the Plaintiff’s claim, the remark is irrelevant for the present purpose.  Mr Lau further drew attention to the difference between the payment by the Defendant as recorded in the Check Account and that set out in Annexure 1 attached to the Amended Defence.

24.  Despite the submissions of Mr Lau, the exact status of this sum allegedly paid on 8 October 2002 clearly deserves closer examination at the trial.  I am unable to conclude at this stage that no triable issue arises in relation to that entry.  For the present purpose, I would take the disputed sum to be the equivalent of ¥127,566.30 by applying the same exchange rate as the item discussed in paragraph 34 below.

September 2002 (Discrepancy of ¥85,295.75)

25.  The Statement of Account (C1, p. 2) shows that the value of goods delivered in the month of September 2002 amounted to ¥614,557.75.  By contrast, the value of goods delivered for the month was stated in the Check Account to be only ¥529,264.00 (C6, p. 2526), a difference of ¥85,295.75.  The Defendant contends that there is at least an issue as to the accuracy of the claim in relation to the discrepancy.

26.  The difference was referable to 2 invoices – 0209001 for ¥48,793.75 (C2, p. 507) and 6847 for ¥36,500 (C2, p. 515).  Mr Lau submitted that there is clear evidence that deliveries had been made under these 2 invoices.  He pointed out in particular that for all this time since 2002, the Defendant had never raised any query as to delivery when he (the Defendant) was asked specifically to notify the Plaintiff if there had been any discrepancy between the quantity delivered and that stated in the delivery note (C2, p. 508).

27.  As I see it, however, the issue here is not so much about delivery of the goods as whether the deliveries had been paid for, and more relevantly, why the sum was not reflected in the Check Account if, according to the Plaintiff, payment under those 2 invoices had remained outstanding.  I am not able to decide at this stage whether the initial omission in Check Account was merely due to oversight.

28.  I think there is an issue here which cannot be resolved at this stage but should proceed to trial.

March 2003 (¥123,000)

29.  This item concerns the nature of the payment of a sum of ¥123,000.  The Defendant alleges that it was part of the payment for goods delivered in the month of March 2003.  Hence, the Defendant contends that he had paid a total of ¥601,000 for the month (C6, p. 2526) rather than the figure ¥478,000 stated in Statement of Account (C1, p. 2).

30.  The Plaintiff, on the other hand, says that the sum ¥123,000 was payment for a set of generator which was a transaction wholly separate and unrelated to the present claim.  The Plaintiff produced a number of documents in support of its case (C5, pp. 2179, 2180, 2181).

31.  The Defendant, however, challenged the authenticity of the documents produced by the Plaintiff.  The copies of the documents exhibited to the Defendant’s affirmation are different from the Plaintiff’s in that they contain no reference to any generator (C6, pp. 2526, 2528).

32.  I have been invited by Mr Lau to examine the originals of the documents.  The originals clearly contain references to the generator.  Indeed, a comparison with the originals shows that the copies exhibited by the Defendant had been redacted with the obliteration of the references to generator.

33.  I have no doubt that the evidence clearly supports the Plaintiff’s case that the sum was payment for the generator.  It was rightly not taken into account as part of the payment for goods for the purpose of the present claim.

May 2003 ($190,000)

34.  The Defendant contends that according to the remarks column in the Check Account (C6, p. 2530), a sum of $190,000 (equivalent of ¥202,350) was paid as partial settlement of the price of the goods for the month of May 2003.  However, the receipt of this sum has not been accounted for in the Plaintiff’s claim.

35.  Mr Lau, whilst accepting that the Check Account was a document prepared by the Plaintiff, submitted that the remarks should be understood as a record of the sum received in cash upon delivery of the goods, and is accordingly irrelevant for the present claim.

36.  The exact status of this payment of $190,000 clearly requires to be examined at the trial.  I am unable to conclude at this stage that no triable issue arises in relation to this sum.

October 2003 (¥60,000)

37.  This item relates to a payment made by the Defendant on 12 October 2003.  The Defendant contends that the sum paid on that occasion was ¥60,000, and it was wrong for the Plaintiff only to have given him credit for ¥20,000.  He pointed out that the figures relating to the particular item on the Plaintiff’s Statement (C3, p. 1051) and the Receipt (C3, p. 1073) had obviously been altered.  He had produced, through Miss Ma, a copy of the Receipt which showed that the sum was originally stated to be ¥60,000 (Annexure B attached to Miss Ma’s Supplemental Submissions).

38.  The Plaintiff, on the other hand, relies on the Receipt signed by its driver which recorded that the sum collected on that occasion was only ¥20,000 (C5, p. 2183).  Furthermore, as Mr Lau has pointed out, even the Receipt now produced by the Defendant (Annexure B to Miss Ma’s Supplemental Submissions) clearly indicated a correction from ¥60,000 to ¥20,000 as the figure to be attributed as the Defendant’s payment.

39.  Having considered the evidence, I have no doubt that the Defendant’s challenge here – which seizes upon the apparent alteration of the figures in the Plaintiff’s Statement (C3, p. 1051) and the Receipt (C3, p. 1073) – is completely opportunistic and of no substance whatsoever.  I am not satisfied that there is any issue worthy of a trial on this point.

Unit Rates and Miscalculations

August 2003

40.  This item relates to the Purchase Confirmation dated 10 February 2003 for an order of the products with the model no. 1565 (C1, p. 88).  The Defendant alleges that because the Plaintiff had delayed delivery of this lot of products for some 4 months until August 2003, there had been an agreement to reduce the unit price from ¥6.90 to ¥6.30.  Miss Ma has drawn attention to the Statement and Receipt at (C1, pp. 966, 967) in support of the Defendant’s case that delivery was effected only in August.

41.  However, as Mr Lau has submitted, the complaint of delay has not been made out on the evidence.  As is apparent on the Purchase Confirmation itself, the job number with respect to that order was HS0335R1.  According to the relevant delivery note the products were delivered on 18 April 2003 (C2, p. 749), and not August 2003.

42.  Moreover, a closer examination of the documents relied upon by the Defendant (C3, pp. 966, 967) reveals that the delivery in August in fact relates to a quantity of the products under a different job number, viz., HS0391, which was a transaction under an altogether different Purchase Confirmation (C1, p. 127).

43.  Further, as Mr Lau pointed out, the alleged variation in unit price has not been pleaded by the Defendant.

44.  Taking all matters into consideration, I am not satisfied that the Defendant has made out a bona fide case that the Plaintiff had agreed to charge a reduced unit price.  I am not satisfied that there is any triable issue in connection with the transaction under this Purchase Confirmation.

October 2003

45.  This relates to the Purchase Confirmations at (C1, pp. 160, 161).  The unit rates for model nos. 1516 and 1516(E) were stated to be ¥4.45 and ¥4.50 respectively.  The Defendant complains that the unit rate applied to these models in the Statement at (C3, p. 1052) was higher than those set out in the Purchase Confirmations, and hence incorrect.

46.  Again, however, a closer examination of the documents reveals that the Defendant’s complaint is misplaced.  Take for example, the delivery made on 3 October 2003 was in fact delivered pursuant to job number HS0414 (C3, p. 1059).  When one compares the reference to the job numbers stated in the Purchase Confirmations (C1, pp. 160, 161), it is immediately apparent that the transactions recorded in the Statement, although relating to products of the same model no., were in fact different transactions.

47.  I am not satisfied that the Defendant has made out an arguable case that wrong unit rates had been applied in relation to the transactions under the 2 Purchase Confirmations in question.

December 2004

48.  This item relates to a Receipt dated 28 December 2004 (C4, p. 1593).  The Defendant questioned whether delivery had been made as the delivery note contained neither acknowledgment nor signature of his agent.

49.  However, it is clearly noted at the bottom of the Receipt that a sum of ¥30,000 was collected from the Defendant for this delivery.  It would not have made sense for payment to be collected if delivery had not been effected.  Having considered also the fact that this was merely one of a series of deliveries effected for the month (see C4, pp. 1591 to 1613) which had been clearly recorded on the Monthly Statement (C4, p. 1588), I do not think that the absence of a signature on (C4, p. 1593) is sufficient to raise any issue worthy of further consideration by way of a trial.

March 2005

50.  The dispute here relates to delivery of the products under Purchase Confirmation dated 4 September 2004 (C1, p. 223).  By referring to a remark in the Receipt at (C4, p. 1691), the Defendant contends that of the 9,000 pieces delivered, 4,000 of them were replacements for which no charge should be made.  He contends therefore that insofar as the Plaintiff had charged him for the 4,000 replacement pieces, he had been overcharged for ¥20,800.

51.  However, as is evident from the documents at (C4, pp. 1740, 1742, and 1744), the 4,000 pieces of the relevant model were replaced by 3 separate lots on 7 April, 8 April and 9 April respectively (C4, pp. 1741, 1743, 1745).  For these replacement goods, no separate charge was made.

52.  Accordingly, there is no substance in the Defendant’s complaint that he had been overcharged.

April 2005

53.  This item relates to the payment for a delivery made on 1 April 2005.  It was stated on the Receipt (C4, p. 1729) that a sum of ¥70,000 was received on account of this delivery.

54.  However, it was stated in the Monthly Statement (C4, pp. 1726, 1728) that out of the said sum of ¥70,000, ¥8,800 was payable in relation to “the coloured packaging” for the model HS-1585 and that sum should therefore be deducted from the Defendant’s payment for the products.  The Defendant disputes the deduction.

55.  Mr Lau argued that since no challenge was made in respect of the deduction in the Defendant’s Amended Defence, it is not open to the Defendant to do so now.

56.  On the materials available, I am unable to determine at this stage whether the deduction was properly made and/or accepted by the Defendant.  I think the dispute in relation to this item should be examined more fully at the trial.

December 2005, January 2006

57.  The complaint relates to the unit price for the products of model no. 1646(D7).  The Defendant contends that the unit price had been unilaterally altered from ¥8.00 to ¥9.50 (C1, p. 274).

58.  The Plaintiff explained that the increase in unit price was the result of the Defendant’s request for the imitation infra red lights to be replaced by real ones.  There is no dispute that the relevant lots of the products had been delivered and accepted by the Defendant, in December 2005 (C5, p. 1937) and January 2006 (C5, pp. 1969, 1970).

59.  I do not think I am in a position to decide at this stage whether the increase in the unit price was the subject of an agreement between the parties.  I believe the issue should be explored more fully at the trial.  Hence, on the basis that there had been 2 deliveries of the relevant model respectively of 900 pieces (C5, p. 1937) and 540 pieces (C5, p. 1970), the sum disputed would amount to ¥2,160 if the Defendant had indeed been overcharged for ¥1.50 per piece.

Consignment

60.  Several of the Purchase Confirmations contain remarks that Tung Shing was to sell the products on a “commission basis” (C1, pp. 169, 209, 210).  The general purport of the remarks was that the Defendant should not be responsible for payment of any quantity of the products which failed to sell at a certain stated price.

61.  The Defendant contends that these goods were supplied to him by the Plaintiff on “consignment basis”.  For the purpose of these proceedings, he has prepared two tables setting out those lots which were supposedly supplied on such basis (C6, pp. 2639, 2641, 2642).

62.  The difficulty facing the Defendant is that his evidence, apart from the assertion that certain transactions were by way of consignment, failed to explain clearly just how exactly the arrangement was supposed to affect the obligations between the parties.  Also, as Mr Lau has pointed out, some of the entries in the table (e.g. the first two entries on C6, p. 2641) apparently relate to Purchase Confirmations (e.g. C1, pp. 243, 244) which make no reference to any special arrangement at all.  And conversely, insofar as the Defendant is relying on the Purchase Confirmation at (C1, p. 169) which does contain a reference to sale on “commission basis”, no reference is made in the tables to any sale of products of model no. 1585 (the subject matter of the said Purchase Confirmation).  The reliability and the use one can make of the Defendant’s tables must necessarily be open to question.

63.  More importantly, a fair reading of the remarks on (C1, pp. 169, 209, 210) would suggest that the Defendant would be relieved from payment only in respect of the quantities remaining unsold.  Nothing to which my attention has been drawn would support the contention that the Defendant should incur no liability for the price at all irrespective of whether the goods were sold.  Therefore, even assuming there had been some special arrangement with regard to specific transactions, the Defendant would still be required to adduce some evidence as to the unsold quantities in order for him to escape or reduce his liability for payment for the goods delivered.  No such evidence has been presented.

64.  The Defendant further refers to the remark in Purchase Confirmation (C1, p. 263).  That remark merely says that 30,000 pieces should first be produced and there should be an evaluation of the market reception before production of further quantity.  I am quite unable to see how that remark advances the Defendant’s case.

65.  Taking all matters into account, I do not consider that the Defendant has set up any credible or arguable defence on this point.

Delay

66.  The Defendant complains that delivery of some of the goods was delayed.  Miss Ma listed a number of such transactions by way of illustration in her written submissions, and it was emphasized that such a list was not exhaustive.

67.  However, when asked by the Court as to the relevance of this complaint and whether the Defendant had rejected the goods on the ground of lateness in delivery, Miss Ma was constrained to accept that there had not been such rejection, or at least, there is no evidence of such rejection to which the Defendant can point.

68.  Even if there had been delay, the Defendant has not pleaded any damages.  Nor is there any evidence of such.  In the circumstances, it is clear that any complaint of delay in delivery does not give rise to any defence worthy of a trial.

Defective Goods

69.  The Defendant alleges that some of the goods delivered over the period between 2003 and 2006 were defective.  However, it has not been asserted that the goods were rejected on account of their defects.

70.  The dispute here concerns whether the goods were in fact defective when delivered or whether they were damaged after delivery and thus requiring repairs.  The two letters produced by the Plaintiff, dated respectively 28 August 2005 and 30 October 2005 (C5, pp. 2188, 2188B-C), are most relevant.  Evidently, the Plaintiff did not accept that the goods as delivered were defective.  Importantly, the latter of the two letters (C5, p. 2188) clearly recorded that the Plaintiff would accept the goods for repair only on condition that the Defendant would pay for the deliveries, as well as sharing part of the repair charges.  The letter contained the signature of the Defendant’s agent.  Hence, when viewed against the absence of any response from the Defendant, I have no doubt that these letters give the true picture of the situation.

71.  I have not overlooked the Defendant’s contention that the tables dated 21 and 22 May 2004 (C6, pp. 2541, 2542) evidenced the various defects of the goods.  However, as the title of the tables suggests, they are merely an itemized list of the repairs.  As the essence of the dispute here is the reason for the need to effect repairs rather than the fact that repairs had been carried out, the tables are of little assistance to the Defendant.

72.  I have also considered the documents evidencing the Plaintiff’s receipt of the “returned goods” (C6, pp. 2547 to 2604).  The goods were apparently returned on 2 occasions, 1 November and 11 November 2005.  The return of such goods was entirely consistent with the arrangement set out in the aforesaid letter dated 30 October 2005 (C5, p. 2188).

73.  As for the documents in (C6, pp. 2606 to 2637), they are alleged to be evidence of the goods not returned to the Plaintiff: 2^nd Affirmation of Yau Chi Kwan, para. 29.  However, I am unable to derive any assistance from these documents in relation to the issue I have to decide here.

74.  Having considered all the circumstances, I do not consider that the Defendant has set up any credible or arguable defence on this point.

Passing Off

75.  The Defendant alleges that at least on 2 occasions, namely, in April 2002 and July 2005, the goods supplied by the Plaintiff were forfeited by the Mainland authority because of infringement of intellectual property rights.  He further alleges that the Plaintiff had agreed to waive the payment of those goods or to further negotiate with him as to payment.  The Defendant exhibited a number of documents (C6, pp. 2644 to 2648) purporting to show the seizure of the products and the penalty imposed by the authority.

76.  However, there is very little by way of explanation to connect the documents exhibited and the allegations made by the Defendant.  The documents at (C6, p. 2644) were dated 11 October 2005.  They apparently relate to some counterfeit products called “Bandai” and “Digimon”.  The date does not appear to correspond with the occasions mentioned by the Defendant.  Furthermore, the Defendant has failed to draw any connection between the products forfeited and those supplied by the Plaintiff.  Absent satisfactory evidence, the Defendant does not begin to show that there is an arguable case that he should be absolved from liability to pay for certain parts of the goods.

77.  The document exhibited at (C6, p. 2645) was apparently a list of products supplied to the Defendant and his agent by one Kung So Ping.  Kung’s signature appears at the bottom of the list.  On the face of the document, it appears that Kung was the supplier of the products in question.  The Defendant has not given any explanation as to the connection of these products with the Plaintiff.

78.  Similarly, none of the other documents at (C6, pp. 2646 to 2648) show any connection with the products supplied by the Plaintiff, or the connection with the two occasions mentioned by the Defendant.

79.  The evidence adduced by the Defendant falls far short of that required to set up a credible and intelligible defence worthy of a trial.  It is clearly insufficient to put in pages of exhibits with little or no explanation of their relevance to the allegation in the affirmation.  This is exactly what the Defendant has done in this instance.  I am not satisfied that the Defendant has set up any arguable case on this point.

Miss Ma’s Supplemental Submissions

February 2004

80.  This relates to the delivery of model no. HS-1558 VD in February 2004.  With reference to a Payment Card (Annexure A in Miss Ma’s Supplemental Submissions), the Defendant contends that 4,480 pieces had been returned to the Plaintiff but only 3,400 replacement pieces were subsequently re-delivered.  Hence, the Defendant argues, there had been overcharging of 1,080 pieces, amounting to ¥9,180 in total.

81.  The Plaintiff’s explanation is that the 3,400 pieces were not defective goods, but were replaced because of the Defendant’s request to change the packaging (C3, pp. 1251 to 1254).  As it was re-packaging, the charge was only ¥0.30 per piece.  The Plaintiff further shows at (B, p. 22E) that the goods returned were 4,240 and not 4,480.

82.  As I see it, the issue here is whether the Defendant should pay for the returned goods, some of them apparently still being stored at the Plaintiff’s warehouse.  The documents at (C3, pp. 1252, 1254), signed respectively by the Defendant and his agent, show clearly that the goods were returned for re-packaging only, and there is no indication or evidence that the returned goods had been rejected by the Defendant for defects or otherwise.  In the circumstances, I am not satisfied that the Defendant has set up an arguable case that he should be relieved from payment of that portion of the goods.

November and December 2005

83.  The complaint here is that the Plaintiff has demanded payment for products of model no. HS-1647 (C5, pp. 1918, 1932), for which there was no Purchase Confirmation.

84.  However, as is evident from the Receipts, the quantity of these goods had been delivered and accepted by the Defendant’s agent (C5, pp. 1919, 1933).  Having accepted the goods, the Defendant should pay for them whether or not there was a Purchase Confirmation.  I find this complaint wholly devoid of merits.

Documents not properly acknowledged

85.  The Defendant has identified a number of documents that contain no acknowledgment whether by him or his agent as to acceptance of the delivery (C2, pp. 478, 507, 515, 601; C3, pp. 914, 1198; C4, p. 1593).

86.  I have already dealt with (C2, 507, 515) in paragraphs 25 to 28 above, and (C4, p. 1593) in paragraphs 48 and 49.

87.  As for (C2, p. 478), Mr Lau sought to respond by seeking to adduce further evidence.  However in light of Miss Ma’s opposition, the application was not pursued and Mr Lau was constrained to accept for the present purpose that there was no evidence of acknowledgment by the Defendant in relation to delivery of those goods referred to in (C2, p. 478).  The total worth of the goods covered under (C2, p. 478) amounts to ¥66,562 (C2, p. 477) and I find that there is a triable issue in relation to this sum.

88.  As for (C2, p. 601), Mr Lau submitted that the remark at the bottom of the page directing the Plaintiff’s staff to fax the Delivery Note to the Defendant for signature was evidence that there had been delivery of the goods in question.  It would not have made sense for there to be such a direction had it not been delivery of the goods.  I agree with Mr Lau.  I do not think there is any triable issue concerning delivery of this lot of goods despite the absence of a signature on (C2, p. 601).

89.  As for (C3, pp. 914, 1198), for the same reason as that set out in relation to (C4, p. 1593) in paragraphs 48 and 49 above, I do not think there is any triable issue concerning delivery of the goods in question.

Conclusion

90.  Based on the foregoing reasons, I am satisfied that the Plaintiff should be entitled to summary judgment in the sum of ¥1,447,673.20.  The Plaintiff is entitled to interest on the said sum at the rate of 1% above HSBC’s prevailing Best Lending Rate from time to time for the period from the date of the writ to the date of this Judgment, and thereafter at judgment rate until payment.

91.  The Defendant is given leave to defend the balance of the claim arising from the matters mentioned in paragraphs 8, 9 and those discussed in paragraphs 18 to 21, 22 to 24, 25 to 28, 34 to 36, 53 to 56, 57 to 59, and 87 above.

92.  As the Plaintiff has succeeded in recovering judgment for a substantial part of the claim, I think it is fair that the Plaintiff should be awarded half of the costs of this summary judgment application in any event: see Hong Kong Civil Procedure 2009, para. 14/7/10.  I will make an order nisi for costs to that effect.