S. MEGGA TELECOMMUNICATIONS LTD. v. CAD CAM INDUSTRIES (HK) LTD.

1993, No. A11849

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________

_______________

J U D G M E N T

_______________

1. In this case, the Plaintiff, S. Megga Telecommunications Limited, claims against the Defendant, Cad Cam Industries (HK) Limited, for non-payment of invoices. The invoices represent the price of electronic components sold and delivered by the Plaintiff to the Defendant.

2. Perhaps the precise details do not much matter. Suffice to say that the Statement of Claim pleads three invoices: No. 93223, dated 10th May 1993, in the sum of $16,169.76; No. 93589, dated 4th November 1993, in the sum of $32,802.45; and No. 93590, dated 4th November 1993, in the amount of $985,647.25.

3. The Defence filed to this primary claim, at paragraph 2 of the Defence and Counterclaim, avers that the Defendant had on or about 3rd June 1993, paid the Plaintiff the sum of $16,169.76 in respect of invoice No. 93223, but save as aforesaid makes no admission to the Plaintiff's claim, as contained in the Statement of Claim issued on 31st December 1993.

4. Miss Yuen, for the Plaintiff, accepts this morning that, in fact, the first invoice has been paid and, accordingly, she asks for judgment in the balance sum, namely, HK$1,018,449.70.

5. Miss Yuen has caused evidence to be called from Miss Noel Tang, a marketing executive with the Plaintiff at the relevant time, as to the relevant invoices, to the factum of delivery of the goods represented by these invoices, and to the fact of non-payment by the Defendant of those invoices. Accordingly, I consider proven the Plaintiff's claim for the two outstanding invoices in the sum of $1,018,449.70.

6. So far so good. What, however, does the Defendant say? Regrettably, I have heard no evidence on the point. On the pleadings the Defendant has defended the Plaintiff's action on the basis that goods supplied by the Plaintiff - I am informed by Miss Yuen these being different goods from the goods the subject of the invoices in question - were defective and delayed, and, on the pleadings at least, the Defendant has mounted a substantial counterclaim against the Plaintiff arising as a result of such alleged delay and defective merchandise.

7. Miss Yuen, who has done the figures, tells me that this counterclaim, when computed, is in or about the region of HK$4.394 million, after making due conversion from US dollars and Deutschmarks. Be that as it may, regrettably today I have had no evidence whatsoever from the Defendant, who has been absent.

8. The background to this state of affairs, which I discovered only upon walking into Court this morning, is that Messrs Stevenson, Wong & Co., the solicitors formerly acting for the Defendant in this action, took out a summons dated 22nd May 1997, and made application to the Court that they cease to be the solicitors of record acting for the Defendant. Master Jennings of the Supreme Court made an Order dated 6th June 1997, whereby Messrs Stevenson, Wong & Co. ceased to be the solicitors acting for the Defendant. I have been shown a Certificate dated 11th June 1997, issued by Messrs Stevenson, Wong & Co. whereby that firm of solicitors certified that they had ceased to be acting as solicitors for the Defendant, and that the sealed copy of the Order of Master Jennings was duly served on the Defendant by leaving the same at the registered office of the Defendant, that being an address in Arbuthnot Road, which I understand remains the registered address of the Defendant as maintained in the Companies Registry.

9. Miss Yuen says - I believe correctly - that service on the existing registered address is good service under section 356 of the Companies Ordinance. In any event, she advises me that prior to this hearing, and subsequent to Messrs Stevenson, Wong & Co. ceasing to act, a director of the Defendant company did in fact contact her client, and Miss Yuen believes there is no doubt that the Defendant is indeed aware of the factum of these proceedings today.

10. Out of an abundance of caution, I rose briefly to allow those instructing Miss Yuen to see if they could make contact with anyone from the Defendant. This was unsuccessful. A telephone number believed to be that of the Defendant apparently did not exist and, indeed, Miss Yuen has information that a Mr Ebert, a director of the Defendant, is presently in America.

11. She gets that information, she tells me, from a Mr Patrick Braun, who is an ex-employee of the Defendant and who attended Court today in order to give evidence on behalf of the Defendant. I should stress that Mr Braun has never been, he informs me, a director of the Defendant, and he personally can take the matter no further. He did, in a spirit of assistance, apparently furnish an American telephone number, but that only, I am told, represented what is commonly known as a "oice box".

12. Be that as it may. The end result of this rather regrettable state of affairs is that no one representing the Defendant is before this Court today. There is, therefore, no one to advance the Defendant's case in terms of its counterclaim and, more importantly, I have no evidence whatsoever before me which might serve to underpin that cross-claim. As no doubt all litigants appreciate, the courts of this jurisdiction act only upon evidence that is placed before them. Speculation or surmise has no place in the judicial process. There being no evidence before me on behalf of the Defendant, there is absolutely nothing further the Court can properly do to consider the Defendant's case.

13. The result of all this is that I consider the Plaintiff's case duly proved, and accordingly I give judgment in favour of the Plaintiff in the sum of HK$1,018,449.70. The Defendant's counterclaim is dismissed.

14. In the circumstances, the Plaintiff is to have its costs of this action, to be taxed and paid if not agreed.

15. I will hear Miss Yuen on the question of interest.

16. As to the question of interest, Miss Yuen asks for a rate of interest at prime plus 1 per cent from 4th November 1993, the date of the two invoices in question, to today's date, the date of judgment. That seems to me to be not unreasonable, and I grant that request. I so order.

17. Thereafter, interest will accrue on the judgment debt, as such it now is, at the relevant judgment rate until payment.

18. I thank Miss Yuen very much for her assistance, and regret the circumstances which have caused this trial to be much foreshortened.