CINARUS (H.K.) LIMITED t/a WILLY (KUEN KEE) HARDWARE v. EXPRESS BUILDING CONTRACTORS COMPANY LIMITED FORMERLY KNOWN AS EXPRESS CONSTRUCTION COMPANY LIMITED

1986, No. A6724

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff's claim against the defendant is in the sum of $74,539.45 being the balance of the price of goods sold and delivered to the defendant between the 1st March 1986 and the 21st July 1986.

2. It is not in dispute that goods amounting to this value were delivered to the defendant.   The defendant however contends that his company has made part payment in the sum of $54,469.35, and that the amount due to the plaintiff is therefore only $20,070.10.

3. This is the sole issue to be tried.

4. Mr. Lam a director of the plaintiff company outlined the manner in which his company did business with the defendant.

5. The plaintiff company sold construction materials to the defendant during the period in question and the course of business was conducted in this manner.

6. The defendant company would telephone the plaintiff and place an order for goods. The plaintiff would then quote a price, which the defendant would agree.

7. In due course the goods would be delivered and an employee of the plaintiff would be sent to the defendant taking with her the invoice in respect of the goods, a delivery note and a receipt.

8. The employee would collect a cheque from the defendant and give him a receipt in exchange. It was the normal practice for the plaintiff's collector to type on the receipt the number of the cheuqe issued by the defendant.

9. The dispute in this action centres on whether the plaintiff received from the defendant the sum of $54,469.35.

10. The defendant's case is that payment in that sum has been made and produced three receipts all purporting to be issued by the plaintiff's company and delivered by Miss Cheng, who was at the material time their employee.

11. The defendant's accountant, a Mr. Chong Tat Wai gave evidence relating to these receipts and the payment made in respect of them.

12. From the defendant's records he produced the following invoices covered by the first receipt - No. 1036. (Exh. Dl)

13. He also produced a cheque drawn by his company and made payable to Willy (Kuen Kee) Hardware, endorsed account payee only. It was in the sum of $44,951.50 and dated 1.10.86. He produced a copy of this cheque supplied by the Hong Kong & Shanghai Banking Corporation (Exh. D4). It is stamped 'Paid' by the bank.

14. Mr. Chong produced the next receipt - No. 1035 (Exh. D2). It is a receipt for $8,366.35 and Mr. Chong has produced copies of the invoices which are related to it.

These are:

 

15. Mr. Chong produced a copy of another Hong Kong & Shanghai Bank cheque. It is made payable to Willy (Kuen Kee) Hardware and is endorsed 'paid' by the Hong Kong & Shanghai Bank and is in the sum of $8,366.35 (Exh. D5). He produced a third receipt - No. 10137 showing a payment for $4,657.50. (Exh. D3).

16. The plaintiff's accountant, Mr. Tsang (PW2) admits receiving this sum.

17. Mr. Chong admits that all the invoices relating to this receipt are payable to the plaintiff but are not claimed in this action.

The relevant invoices are:

18. Mr. Chong produced Exh. D6 another cheque paid by his company and payable to Willy (Kuen Kee) Hardware in the sum of $4,657.50.

19. Again it has been cleared by the Hong Kong & Shanghai Banking Corporation and stamped paid.

20. Mr. Chong has matched all the relevant invoices with the receipts. He has produced copies of the cheques used in payment. The plaintiff does not allege fraud in the pleadings.

21. Miss Wong for the plaintiff in her cross-examination of Mr. Chong sought to cast doubt on the authenticity of Exh. Dl, the receipt for $44,951.50. Her point was that the cheque number typed in the receipt did not match the cheque Exh. D4.

22. Mr. Chong was unable to explain how this came to be.

23. He said that the numbers of the cheques shown on the receipts were recorded by the plaintiff's employee who came to collect the cheque.

24. Miss Cheng whose name appears on all three receipts is no longer working for the plaintiff and was not called to give evidence.

25. Miss Wong suggested that possibly the receipt number Exh. D1 and Exh. D2 were not authentic and that their form and colour were different from the other receipts issued by the plaintiff's company.

26. In my view, it is not open to Miss Wong to question the authenticity of Exh. Dl.   A copy of this receipt was disclosed to the plaintiff on the 6th May 1987 (see Annual Practice 0.27 r.4)

27. Moreover the plaintiff does not plead that the receipts are forgeries.

28. From the evidence I am satisfied that in the normal course of business an employee of the plaintiff would call on the defendant company to collect payment on the invoice and in exchange for a cheque would issue a receipt.

29. I am satisfied on a balance of probabilities that these 3 receipts were produced to the defendant company and that the cheques exhibited were exchanged for them.

30. It may be that the plaintiff's records are not in order. It may be that their staff have been dishonest. On the evidence before me I am however satisfied that the defendant has proved on balance that these sums amounting to $54,469.35 have been paid to the plaintiff.

31. It follows that I give judgment for the plaintiff in the sum of $20,070.10.

32. I will hear counsel on the costs.