BILLION YEARS CO LTD v. LUI WAI CHEUNG

IN THE HIGH COURT JUSTICE

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DECISION

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1. This is an appeal by the defendant against a decision of Master Betts given in chambers on 27th June 1984 by which the Plaster gave judgment for the plaintiff pursuant to Order 14 Very briefly, the facts of this matter are these: there was either a business relationship or a proposed business relationship between the plaintiff company and the defendant. The plaintiff says that in connection with that business relationship or proposed business relationship, a considerable quantity of machines were delivered to premises which were then in the occupation of the defendant. That was done with a view to the continuation or cementation of that business relationship. The background, perhaps, does not matter greatly. The plaintiff's case is that when they obtained possession themselves of factory premises on 23rd March 1984 where machines were supposed to have been delivered, a large number of them were found to be missing. The plaintiff claims that they have been converted by the defendant. Before the Master, their case was clear enough. They were able to produce as exhibits to affirmations the contract documents by which the machines had been purchased from a third party and they were also able to produce what appeared to be either confirmed inventories or receipts for those machines signed by the defendant. Before the Master, nothing was put in evidence by way of affirmation or otherwise which could conceivably have raised a sufficient defence for the Master to have given leave either conditional or otherwise, and consequently, as I have said, judgment was given for the plaintiff. Before me, the defendant put in an affirmation which was sworn, I believe, two or three days after the hearing before the Master, which, for the first time raises in terms the question whether or not the defendant had ever been in possession of any machinery belonging to the plaintiff. Even then, it was ambiguous and it seas only on the second day of this hearing, that is to say today, that by a further affirmation exhibiting a defence that the position of the defendant became at all clear. What the defendant is now saying or so I glean from the affirmation and the craft defence, is that if the machinery listed in those receipts or inventories eras ever in the possession of the defendant at any time, it was acquired from other sources and did not come into his possession as belonging to the plaintiff. Moreover, the defendant says in effect: "I do not admit that any of the machinery alleged to be missing was missing on 23rd March when I ceased to have control of the factory  premises and the plaintiff took over. It is for the plaintiff to prove that the machinery was owned by the plaintiff and further, if any of that machinery went missing, that it cent missing at a time when I was in control of it." I think that does raise a triable issue though by reason of the manner in which the defence has come to be presented,piecemeal and, if I may say so, with the advantage of some prompting in the course of argument that I think I am entitled to view the defence with considerable suspicion which I do. But, I think, having regard to authorities, it would be wrong to make the leave which I propose to give to defend conditional, and I do not. I am bound to say, however that had the evidence before me been the same as was presented to the Master, I would have come to precisely the same decision as he did. But this is re-hearing and in the result, having had my attention invited to further evidence, I find that this is a proper case in which leave to defend should be given and I so order. Having heard argument as to costs, I leave the order for costs before the master undisturbed and I order that the costs of the hearing before me be costs in the cause and I give the usual order as the directions for the advancement of this trial hereafter.