TAI KONG ENTERPRISES COMPANY v. LI HOK SO, JOHN t/a TIN YEN COMPANY AND ANOTHER

--------------

___________

JUDGMENT

___________

Cons, V.-P.:

1. This is an appeal against the judgment of Mr. N.J. Barnett, sitting as a Deputy Judge of the High Court, given on the 9th June this year.

2. The action arose out of a sale of Angora rabbit hair. The Plaintiff agreed to buy approximately 1 tonne from the 1st Defendant. He paid a deposit of $100,000 in earnest of that agreement to the 2nd Defendant. The balance of the purchase price was to be paid and the goods delivered before the 23rd November 1984. However the parties fell out at the last minute and the agreement was not carried through. Each side blamed the other for the collapse of the transaction.

3. The case took some six days to be heard before the judge below, both sides being represented by counsel. As the judge observed, the two conflicting stories of the principal witnesses could not possibly have arisen through misunderstanding. One or other was not being truthful. It was his duty, as a judge of first instance, to decide who that was.

4. In a reserved judgment he made a very thorough and careful analysis of the evidence, and set out in full the reasons why in the end he came to the conclusion that it was the Defendants' witness who was not being truthful. He gave judgment for the Plaintiff for the return of the deposit and damages for the loss of profit in the expected transaction.

5. The 1st Defendant appeals from that decision. The Notice of Appeal filed in this Court is dated the 19th July. We are now almost at the end of October, yet when first called on this morning the Defendant said that he was still not ready to proceed with the appeal. We refused an adjournment, taking the view that he had had ample time to prepare his case, but had chosen instead, as he admitted, to occupy himself with other matters.

6. In the appeal itself he has criticized the conclusions of the judge, but has not been able to show that the judge in any way went wrong in his analysis of the evidence or in the reasoning which he applied to it. Nor has the Defendant indicated any defect in the form of the trial.

7. For my part I find no merit in the appeal and I would diemiss it.

Silke, J.A.:

8. I entirely agree with the conclusions of my Lord. I also would dismiss the appeal.

Kempster, J.A.:

9. I agree and have nothing to add.