XCHRX ANDREW PETER WINDEBANK AND ANOTHER v. PRIME CONSULTANTS LTD. t/a WINFIELD MOTORS CO.

HCA 6338/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6338 OF 1998

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J U D G M E N T

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1. This is a plaintiffs' application for summary judgment. The plaintiffs accept that insofar as their claim is a claim for damages for breach of contract (as formulated in a re-amended statement of claim which, in the absence of objection, I shall give them leave to file) the defendant, which has a counterclaim for damages against the plaintiffs for breach of the same contract, must be given unconditional leave to defend the action, and I shall so order.

2. But the plaintiffs ask for summary judgment now in relation to a different claim. This claim, properly analysed, is a claim for damages for the tort of conversion, arising because the defendant refused to deliver up to the plaintiffs, when called on to do so, a motor car delivered by the plaintiffs to the defendant for the purposes of the contract but remaining the property of the plaintiffs. The claim can be quantified in the sum of $220,000, because the car has been sold for that sum and neither party seeks to suggest any other sum as representing its value.

3. In my view, the plaintiffs are entitled to summary judgment for this sum. As it seems to me, this claim stands on its own, irrespective of the outcome of the parties' respective claims against each other under the contract. I shall therefore give judgment for the plaintiffs for $220,000, and order that the sum of $220,000 paid into court and representing the proceeds of sale of the car, be paid together with any interest earned thereon, out to the plaintiffs in full satisfaction of the judgment.

4. I appreciate that the plaintiffs ask for interest on the sum of $220,000 from an earlier date but the moneys paid into court should carry interest, and it would not be right to saddle the defendant with any further liability after the sum of $220,000 was paid into court. As to the claim for interest before then, I refuse it. It was not until today that it became clear, at least to me, precisely what the plaintiffs' cause of action was in relation to the car itself.

5. The directions already given by the master as to the conduct of the action and counterclaim are to stand. There is no objection from either party to these directions.

6. As to costs, I shall give the plaintiffs the fixed costs of their application for summary judgment on which they have, in somewhat unusual circumstances, succeeded in part, and I shall give the defendant its costs in any event of the plaintiffs' application for leave to re-amend the statement of claim and of any consequential amendments to the defence and counterclaim.