NGAI YEE CHIU v.YIP TIN LOI

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.1704 OF 2001

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JUDGMENT

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[1] On or about 2/6/2000, the Plaintiff verbally agreed to purchase an excavator, model number CAT320-3XM1699 (the "Excavator"), from the Defendant, for the purchase price of HK$330,000. The Plaintiff paid the Defendant the sum of HK$190,000.00 as deposit. The parties agreed that the Excavator would be delivered by the Defendant at his warehouse on 3/6/2000.

[2] The Plaintiff's case was that on 3/6/2000, when the Plaintiff went to the Defendant's warehouse, the Defendant stated that the Excavator would stay with him and he will refund the Plaintiff's deposit within two days. However, the Defendant failed to repay the deposit within the time limit. After the Plaintiff called the Defendant everyday pressing for the refund, on 28/8/2000, the Defendant repaid the sum of HK$20,000.00 to the Plaintiff. Despite the continued pressing by the Plaintiff, the Defendant has failed to repay the balance of the deposit.

[3] The Defendant's case was that on 6/6/2000, the Excavator was delivered to the Plaintiff at the Defendant's warehouse in Hong Kong. At the Plaintiff's request, the Defendant shipped the Excavator to the Mainland for and on behalf of the Plaintiff. The Plaintiff agreed to pay balance of the purchase price, once the Plaintiff's old excavator has been sold. The Excavator was later detained by Mainland custom authority.

[4] So far as the HK$20,000.00 was concerned, the Defendant alleged that it was a loan to the Plaintiff.

[5] The Defendant counterclaimed against the Plaintiff for balance of the Excavator's purchase price in the sum of HK$140,000.00,

[6] Both parties were legally represented at the pleading and discovery stage. Trial was set down on 14/8/2001 for today at the presence of both solicitors. Notice of Trial was sent to both solicitors on 24/8/2001. On 28/11/2001, the Defendant filed a Notice to Act in Person. The Defendant was absent this morning. I asked my clerk to call the Defendant at the telephone number stated on the Notice to Act in Person and the Defendant's former solicitor's firm. There were no answers at either of the telephone numbers. I waited till 10:30 AM, an hour after the time this trial was supposed to have started, before beginning this hearing without the presence of the Defendant.

[7] Mr. Wong, Counsel for the Plaintiff, requested leave to file and serve the Plaintiff's supplemental witness statement with additional documents. The same had already been served to the Defendant with the bundle of documents. The supplemental witness statement had only stated the fact that the Plaintiff had, on 31/10/2000, made a complaint to the police about the Defendant's failure to repay balance of the deposit. The Plaintiff submitted the Police's Background Report as additional documentary evidence. Leave to file was duly approved.

[8] The Plaintiff then proceeded to prove his case. The Plaintiff produced his Statement of Travel Record for the period of June 2000, issued by the Immigration Department, as proof that he left Hong Kong at 13:58 on 3/6/2000 and did not return until 8:20 on 7/8/2000 and could not have accepted delivery of the Excavator at the Defendant's warehouse in Hong Kong as alleged by the Defendant.

[9] The Plaintiff also produced a receipt for the deposit of HK$190,000. The receipt was dated 2/6/2000, signed and chopped with the Defendant's company chop (Tin Wai Engineering Co.). The receipt had clearly stated that the Excavator's model and serial number as CAT320-3XM1699.

[10] Mr. Wong stated that on page 33 of the bundle, being a receipt issued by the Mainland Custom authority and produced by the Defendant as proof that the Excavator was seized by Mainland authority, in fact involved a different excavator altogether. The two seized excavators listed on the Mainland authority's list had model and serial numbers CAT320B-FL4699 and SK027-ME2116.

[11] Finally, the Plaintiff pointed to the receipt dated 28/8/2000, where the Plaintiff clearly stated that he had received HK$20,000 from the Defendant as repayment.

[12] Having considered the evidence from both parties, with the Defendant being absent, I found that the Plaintiff never took delivery of the Excavator on 6/6/2000, as alleged by the Defendant, there was an agreement between the parties that the deposit in the sun of HK$190,000.00 was to be repaid to the Plaintiff and on 28/8/2000 the Defendant paid the Plaintiff HK$20,000.00 as part of the agreed repayment. The Defendant has failed to repay balance of the deposit to the Plaintiff. Judgment is for the Plaintiff for HK$170,000.00. The Counterclaim is dismissed.

Order:

(1) Judgment is for the Plaintiff in the sum of HK$170,000.00, together with interest at the judgment rate from the date of writ until payment.

(2) The counterclaim is dismissed

(3) Costs of this action, together with any costs reserved shall be to the Plaintiff, to be taxed on a Party/Party basis if not agreed.

(4) Plaintiff's own costs to be taxed in accordance with Legal Aid regulations.