PACIFIC COLOR INDUSTRIES (A FIRM) v. TACTWAY FAR EAST (HOLDING) LTD.

DCCJ8881/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.8881 OF 2001

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JUDGMENT

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1. In this action, the plaintiff claims against the defendant the sum of $317,050.00 for goods sold and delivered. It has been alleged in the amended defence and counterclaim filed on behalf of the defendant that the goods sold, namely, cotton yarn, were defective and not merchantable. No issue has been taken on the price or the delivery of the goods. On 21 June, 2002, a notice to act in person was filed by the defendant. At the trial, the defendant was absent.

2. Having heard the evidence of Mr. Lo Sek Keung, I am satisfied that the plaintiff did sell and deliver the goods in issue to the defendant and the defendant has not paid the price for the goods in the sum of $317,050.00. The burden of proving that the goods were defective and unmerchantable rests with the defendant. No evidence has been adduced by the defendant to substantiate its defence. I am therefore satisfied that there is no defence to the plaintiff's claim and the defendant is liable to pay the sum of $317,050.00 as claimed.

3. Accordingly, I give judgment for the plaintiff against the defendant for the sum of $317,050.00 together with interest thereon from the date of writ to date at 5.125% per annum and thereafter at judgment rate until payment. There be an order that the costs of the action be to the plaintiff to be taxed if not agreed.

4. There being no evidence adduced by the defendant in respect of the counterclaim, I also dismiss the counterclaim with costs to the plaintiff to be taxed if not agreed.