HIGH POWER FOUNDATION ENGINEERING LTD v. MSY ENGINEERING LTD

DCCJ2737/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2737 OF 2015

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JUDGMENT

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Issues[1]

1.  This is a simple contractual dispute.  By a written agreement (“Rental Agreement”), the plaintiff, High Power Foundation Engineering Limited (“High Power”) as the lender and/or owner of a Piling Rig with Rotator (“Piling Rigs”) leased the Piling Rigs to the Defendant, MSY Engineering Limited (“MSY”) as the hirer, at the rate of HK$85,000 per month for the period between 8 December 2014 to 6 May 2015 (“Contractual Period”), with the total rent of HK$422,167.00.  High Power alleges that other than the first payment of HK$85,000, MSY fails to pay the rest; hence a total sum of HK$337,167.00[2] remains outstanding.  MSY alleges that within the Contractual Period, in or about late March 2015, High Power had, by its agents, servants, employees or reprehensive[3], took away the keys which would be used to operate and control the Piling Rigs (“Keys”), thereby depriving MSY to use the Piling Rigs until about 2 April 2015, which caused losses and damages on MSY.

2.  Accordingly, the court is asked to resolve factual disputes that:

a.  if MSY fails to pay High Power in accordance with the Rental Agreement; and

b.  if High Power, by it agents, servants, employees or representative, has taken away the Keys as alleged which caused losses and damages on MSY.

3.  MSY was absent from the trial.

High Power’s Case

4.  High Power calls two witnesses to give evidence, Mr Chan Tat Ting (陳達廷先生, PW1) and Mr Chan Ken Chor (陳建初先生, PW2).

5.  PW1 gives evidence that he is a shareholder and a director of High Power.  On or about 8 December 2014, MSY accepted and signed the Rental Agreement, and the Contractual Period commenced on 8 December 2014; the Piling Rigs were delivered to the MSY at its site in Tsz Wan Shan (“the Site”) on the same date.

6.  Pursuant to the Rental Agreement, the following invoices were issued:

Invoice Date	Rental Period	Invoice Number	Amount (HK$)	Payment
30/12/2014	8/12/2014 – 7/1/2015	General-MSY-Inv-031	85,000.00	Paid on 10/2/2014
9/2/2015	8/1/2015 – 7/2/2015	General-MSY-Inv-034	85,000.00	Unpaid
3/3/2015	8/2/2015 – 7/3/2015	General-MSY-Inv-039	85,000.00	Unpaid
1/4/2015	8/3/2015 – 7/4/2015	General-MSY-Inv-043	85,000.00	Unpaid
8/5/2015	8/4/2015 – 6/5/2015	General-MSY-Inv-051	82,167.00	Unpaid
		Total Outstanding Amount	337,167.00

7.  Despite High Power kept on asking MSY to make the payments, MSY simply failed to reply.  On 6 May 2015, High Power removed the Piling Rigs from the Site successfully.

8.  He did not know who that Ah 初 was, but he believed it would be Mr Chan Ken Chor, who was not a staff, agent, contractor of High Power; and did not involve in this transaction. He had never heard that the Keys had ever been taken away, which made MSY failed to operate the Piling Rigs at any time.

9.  Mr Chan Ken Chor gave evidence that it was mentioned by MSY that a person called Ah 初 had taken away the Keys; although no particulars were given, he believed it referred to him.  Through his introduction, MSY hired the Piling Rigs from High Power; however, he was not a staff or agent of High Power, and High Power had never instructed him to take away the Keys; and no one had ever told him to do so.

MSY’s Case

10.  MSY fails to attend court; I will not attach any weight on its evidence or witness statement.

Analysis

11.  As MSY elects to be absent from the trial, High Power’s evidence is not challenged; further, its case is supported by contemporaneous documents, like e-mails, invoices, and letters, etc., I attach full weight on its case.

12.  On the balance, I find High Power proves its case successfully; and MSY fails to prove its defence or counterclaim.

Conclusion

13.  I rule that:

a.  MSY do pay the damages to High Power assessed at HK$337,167.00 with interest at judgment rate from the date of Writ of Summons upto the date of payment;

b.  Costs of this action be to High Power with certificate for counsel, to be taxed if not agreed.

14.  I grant Counsel’s Certificate and thank for the assistance of Miss Chung.