Li Wai Shing t/a Lee Chiu Kee Laan 訴 Lao Chan Meng

HCA3443/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCA3443 OF 2000

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J U D G M E N T

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1. The plaintiff is suing the defendant for the price of goods sold and delivered in the sum of $1,992,342.

2. The defendant was absent at trial. He had filed a notice to act in person on 22 December 2000 but had failed to appear before a master at three hearings on 2 April 2001, 4 July 2001 and 23 January 2002. He had failed to file any witness statement pursuant to an unless order dated April 2001 and was debarred from producing evidence at trial without leave. The plaintiff had attempted to serve the trial bundle on the defendant at his last known address twice but the door was locked. Hence, I decided to try the matter in the defendant's absence.

The Facts

3. The plaintiff was a fruit wholesaler. It had dealt with the defendant's uncle under whom the defendant worked. In 1995 the defendant said he wanted to come out to do business. He represented that he was an agent of "Wing Shing Tai" in Macau. Goods were delivered to the defendant's order in Hong Kong. Invoices were made out to Wing Shing Tai but were all paid for by personal cheques of the defendant.

4. Since February 1999 the defendant has delayed in payment of the invoices. He stopped payment altogether in September 1999. During that period, the plaintiff was still making deliveries to the defendant because he was making partial payments and the plaintiff trusted him because of the long course of dealings. The unpaid invoices amounted to $1,992,342.

5. The plaintiff has conducted business registration searches both in Hong Kong and Macau, and there is no registration in the name of Wing Shing Tai. I am satisfied on the evidence that the price of $1,992,342 has remained unpaid.

Personal Liability of the Defendant

6. When a person is purportedly contracting as an agent for another, whether he is personally liable on the contract with the third party depends on whether that person has expressly or impliedly negatived his personal liability.

7. The contract was oral in the present case. The course of conduct over the 5 years was that the plaintiff had only dealt personally with the defendant and all previous invoices were paid by personal cheques of the defendant. In the circumstances I hold that the defendant is personally liable for the price. Whether Wing Shing Tai is or is not in existence really adds nothing to the point.

Conclusion

8. I shall give judgment on the sum of $1,992,342 in favour of the plaintiff. I shall also award interest at the judgment rate from the date of the writ until judgment and thereafter until payment.

9. The defendant shall pay the costs of the action to the plaintiff.