WHOLE LIGHT INDUSTRIES LTD v. TURBO-KNIT FACTORY LTD

DCCJ 3593 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3593 OF 2006

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DECISION

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Introduction

1.  On 15 November 2007, I handed down reasons for decision and gave judgment in favour of Whole Light in the sum of HK$117,551.80 after trial (see: paragraph 97 of the reasons for decision).  I also made an order nisi that Whole Light should be entitled to half of its costs of the action.  

2.  The judgment has not been perfected or sealed by the parties.

3.  Whole Light by way of a letter dated 20 November 2007 and Summons dated 23 January 2006 now asks the Court to vary the judgment sum awarded.

4.  At the same time, Turbo-Knit also applies by way of a letter dated 21 November 2007 to vary the costs order nisi on the basis of a payment into Court in the sum of HK$145,000.00.

5.  It is common ground that if I rule in favour of Whole Light’s application, the question of payment-in becomes irrelevant, as there is no more basis to vary the costs order nisi as requested by Turbo-Knit.  As such, I will consider Whole Light’s application first.

Application to vary or correct the judgment

Applicable principles

6.  The parties are not in dispute as to the applicable principles, which can be summarized as follows:

(1)

When a judgment or order has not been sealed or perfected, the Court is not functus officio and has a discretion to review and vary or correct its own decision:  Andayani v Chan Oi Ling [2000] 4 HKC 233 at 237D-238A per Keith JA; followed in Ho Choi Wan v Hong Kong Housing Authority (unrep., HCAL 174/2002, Chung J, 12 August 2003) at para 10.

(2)

In the exercise of its discretion, the Court may correct its decision for any minor or clerical mistake, or errors arising from any accidental slip or omission.  The Court also has inherent power to vary its orders so as to carry out its own meaning or to make its meaning plain.  The error or omission must be one in expressing the manifest intention of the Court, and the Court cannot correct a mistake of its own in law or otherwise.  See: Hong Kong Civil Procedure 2008, para 20/11/1.

The present application

7.  The background leading to the dispute and my various finding of facts have been set out in the reasons for decision, I would not repeat them here.

8.  At paragraph 97 of the reasons for decision, I granted judgment in favour of Whole Light in the sum of HK$117,551.80, as I set-off from the outstanding balance of HK$180,757.00 in Whole Light’s invoices against (a) the agreed settlement sum of HK$62,348.45 (as found in paragraphs 79 and 94), and (b) HK$856.75 (as the sum overpaid by Turbo-Knit, being the difference between the value of the paid returned defective yarns and the value of the replacement yarns, as found in paragraph 61 of reasons for decision).

9.  Mr Arthur Wong for Whole Light submits that in light of the basis upon which I reached my conclusion on the judgment sum as set out above, the sum of HK$29,411.25 should be added back to the judgment sum.  This sum represents the value of the 2557.5lbs of replacement yarns delivered to Turbo-Knit by Whole Light to replace 2,632lbs of defective yarns (see paragraph 56 of the reasoned decision).  Mr Wong submits that the proposed correction is to reflect the obvious intention of the Court that this sum should be paid by Turbo-Knit to Whole Light.

Discussion

10.  Given that the judgment has not been perfected or sealed, I clearly have the jurisdiction to correct or vary it.  The question is should I?

11.  I accept Mr Wong’s submissions that, in granting the original judgment sum basing on the calculation as set out above, it was the Court’s clear intention that Whole Light should be entitled to be repaid HK$29,411.25 as the value of the replaced yarns (2557.5lbs x HK$11.5).  This is further demonstrated by the following aspects of the reasons for decision:

(1)	It is my finding that the settlement agreement included the repayment by Whole Light to Turbo-Knit the sum of HK$30,268.00, being the value of the already paid defective yarns (2632lbs x HK$11.5). In giving the original judgment sum, I have deducted this sum from the original outstanding balance of the invoices.
(2)	At the same time, given Turbo-Knit’s own case that it would repay Whole Light the value of the replaced yarns  (albeit upon the issue of a new invoice, which also according to Turbo-Knit’s own case had already been issued:  see paragraph 58 of reasoned judgment), it was my intention that after making the above deduction, Whole Light should be given back credit for the value of the replaced yarns, otherwise there would have been no basis to deduct the above sum (in particular as it is common ground that Turbo-Knit had made use of the replaced yarns and it only claimed for damages arising from the defective yarns).
(3)	This intention is underlined by my further (though erroneous as explained below) deducting HK$856.75 from the outstanding balance in my calculation for the original judgment sum.  The HK$856.75 only comes into picture if Whole Light is to be given back the value of the replaced yarns.

12.  In the premises, I agree that there is an error in the judgment, and in order to reflect the clear and manifest intention of the Court, the judgment sum should be varied to HK$147,819.80 (i.e., HK$180,757.00- HK$62,348.45 + HK$29,411.25).  At the same time, after deducting the settlement sum and adding back the value of the replacement yarns, the sum of HK$856.75 becomes irrelevant and should no longer be taken into account in arriving at the judgment sum.

Turbo-Knit’s application to vary the costs order nisi

13.  Given my above conclusion to vary the judgment to award Whole Light a sum of HK$147,819.80, it is common ground that this would beat the payment-in made by Turbo-Knit.  It follows that Turbo-Knit’s application to vary the costs order nisi must fail.

14.  In the premises, the costs order nisi will be made absolute.

Conclusion

15.  For the above reasons, I make an order that:

(1)	The judgment be varied to the extent that there is judgment in favour of Whole Light in the sum of HK$147,819.80.
(2)	The costs order nisi in the Judgment be made absolute.

16.  By way of the present decision, I further issue an corrigendum to correct parts of the reasoned judgment dated 15 November 2007 as follows:

(1)	In paragraph 49 thereof, the word “Turbo-Light” should be read as “Turbo-Knit”.
(2)	The last sentence of paragraph 93(1) thereof should be read as follows:
	“	Whole Light was chasing Turbo-Knit for payment of the two outstanding invoices, while Turbo-Knit was negotiating with Whole Light Turbo-Knit for confirmation on various deduction on various deductions it sought to make against the payments.”

17.  I further make an order nisi that:

(1)	Costs of Whole Light’s application to vary the judgment be to Whole Light to be taxed if not agreed, with certificate for counsel.
(2)	There will be no order as to costs of Turbo-Knit’s application to vary the cost order nisi of the judgment.