WISHING LONG HING (A FIRM) v. JINLING ENTERPRISE CO LTD

1998, No. A7964

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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D E C I S I O N

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1. The plaintiff and the defendant were parties to a previous contract for the supply of cement. One Mr Ling was allegedly the former manager of the defendant. The appointment of Mr Ling as manager in the past was as a result of a pre-arrangement between the Shenzhen company and the defendant when the Shenzhen company the defendant were in full co-operation.

2. The Shenzhen company and the defendant allegedly found their join enterprise disharmonious, and their association allegedly came to a halt.

3. According to the defendant, Mr Ling, ceased to be the of the manager of the defendant, but prior to further alleged unauthorized orders placed by Mr Ling with the plaintiff, the cement contract had yet to run its full course, and at the time of these alleged unauthorized orders the remainder of the cement contract was still being performed.

4. According to the plaintiff, these further orders were placed by Mr Ling purportedly on behalf of the defendant. Goods were supplied under these orders, but no payment has been made; hence the plaintiff sues the defendant.

5. The defendant disputes having at all placed these orders. The defendant claims that if they had been so placed, they were without its consent or authority.

6. The crux of the defence revolves around paragraph 9 of Mr Kan's affirmation filed herein on the 6th July. Counsel for the plaintiff was fully conscious of the various implications arising from this paragraph 9, particularly its last sentence which reads as follows :

"The said Zai Chung Ling told me and I verily believe that he was fully aware of the matter and that the said Zai Chung Ling only requested me to make attempt to ask the said Shenzhen Jinling Enterprise Co. Limited for repayment."

7. From this paragraph 9, it can readily be appreciated that the defendant's contention is that the Mr Zai of the plaintiff admitted to the defendant, in the presence of Mr Zai's daughter-in-law sometime at the end of 1986, that he was fully aware of Mr Ling's want of authority but that he was merely seeking assistance from the defendant to chase after the Shenzhen company for payment of the goods supplied under the orders.

8. Mr Thong informs the court that he has carefully considered the last sentence and the interpretation he seeks to put on it is thus :

"All Mr Zai said when he was first made aware of the matter is that he was now aware of the matter on being told (probably for the first time) and (that be) proceeded to ask the defendant to make some attempt to hold the Shenzhen company responsible."

9. Mr Thong, counsel for the plaintiff, readily concedes that his version is but one of the interpretations. The last sentence in paragraph 9 reasonably read would, in my view, support more the interpretation that I have endeavoured to put upon it. With at least these two possible interpretations to be ultimately determined when evidence is led, in the absence of any conclusive circumstances or documents to negative the assertion of Hr Kan of the defendant, the Court is inevitably driven to concur with the decision made by the learned Master.

10. This is a fit case for unconditional leave to be granted to the defendant to defend. The appeal to-day therefore stands dismissed. The order of the Master is therefore affirmed, and subject to what counsel have to say, costs of today he costs for the defendant in any event.

(Counsel make no further submissions on costs)

11. Mr Thong, raises no opposition to the proposed order and I order accordingly.