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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BETWEEN

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DECISION

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Introduction

1.  This decision should be read together with my reasons for decision dated 15 November 2007 (“the 1^st Decision”) and 20 February 2008 (“the 2^nd Decision”). 

2.  By way of 1^st and 2^nd Decisions, I gave judgment in favour of Whole Light in the sum of HK$147,819.80.

3.  In coming into that judgment, I have included the sum of HK$29,411.25 (“the replacement yarns sum”), representing the undisputed value of replaced dyed yarns provided to Turbo-Knit by Whole-Light (See: paras 11 and 12 of the 2^nd Decision)

4.  This is now Turbo-Knit’s application for leave to appeal to the Court of Appeal of that judgment.

Applicable principle

5.  The principle applying to the grant of leave to appeal is not disputed.  In considering whether to allow leave to appeal to the Court of Appeal, the intended applicant needs to satisfy the Court that the intended appeal has a realistic prospect of success, in the sense that he has at least an arguable case in the intended appeal:  Ma Bik Yung v. Ko Chuen (unrep., HCMP4303 of 1999, 8 September 1999) per Leong CJHC at paragraph 5, in adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

Ground of appeal

6.  In essence and in substance, there is effectively only one intended ground of appeal advanced by Mr Lau, counsel for Turbo-Knit.  It is that, this Court is not entitled to include the replacement yarns sum in the final judgment, since it is not part of Whole Light’s pleaded case to claim for the replacement yarns sum.

Discussion

7.  Before I deal with the legal principles concerning this ground of appeal, it must be noted that Mr Lau is not seeking to contend against my ruling at paragraph 11(2) of the 2^nd Decision that it is Turbo-Knit’s own evidence that it would repay the value of the replacement dyed yarns.  Mr Lau also fairly accepts that there is no dispute in the evidence on the quantity and unit price of these replaced yarns delivered to Turbo-Knit, and the fact that the yarns had been used by Turbo-Knit. 

8.  In relation to question as to whether and when the Court is entitled to find or determine a particular issue or case on the evidence as found, but in a way which is not pleaded by both parties or the plaintiff, it has been established that Court might ask itself the question as (a) whether the “new version” was a radical departure or merely variation, medication or development of an issue that was already before the Court, and (b) whether the other party’s preparation or conduct of the case would have been different if the “new version” was the one that it had originally come before the court to meet.  If the answers to these questions are negative, baring any exceptional circumstances, the Court is entitled to do so in order to do justice between the parties.   See: Poon Hau Kei v Hsin Chong Construction Co Ltd (2004) 4 HKCFAR 148 at 156-157, approving the principles laid down by Ma JA (as he then was) in the Court of Appeal[1]: Mak Kan Hoi v Ho Yuk Wah David (unrep., FACV 20 of 2006, Bokhary, Chan Ribeiro PJJ, Mortimer and Lord Scott NPJJ, 30 March 2007) at paras 98-101 and 105; KSDY International Co Ltd v Honway (China) Ltd (unrep., HCA 4514/2002, Deputy High Court Judge Muttrie, 23 March 2006) at para 32.

9.  At the same time, it has been emphasized that the essence of any rule of procedure and practice, including the requirement of pleading, must be fairness, and that the trial must be fairly conducted. See: Mak Kan Hoi, supra, para 101. 

10.  Applying these principles, the first question I have to ask for the present purpose is whether there is an arguable case that the “new question” on the liability to pay the replacement yarns sum is a radical departure from any of the issues before the Court at trial.

11.  In the present case, it is clear from the Statement of Claim that, the gist of Whole Light’s claim as pleaded is to claim for the balance of the purchase price of the dyed yarns supplied to Turbo-Knit.  It has pleaded a specific sum as to the balance, which is disputed by Turbo-Knit.   The overall issue before the Court is thus whether there exists any outstanding balance of the purchase price, and if so, what is the amount if it.    As to the other disputes such as whether part of the yarns supplied were defective, and whether there was a settlement agreement, they are issues raised by the Defence.

12.  As such, I do not find that the question of the replacement yarns sum in the judgment sum is a radical departure from the above overall issue, which was already before the Court.  This is so since the replacement yarns sum is indisputably part of the balance of the purchase price of the yarns delivered, and therefore this question is at its highest only a variation or development of the overall issue.  I therefore do not see there is an arguable chance that Turbo-Knit would be able to successfully argue otherwise on appeal.

13.  The next question is whether the there is an arguable case that if “new question” was the one Turbo-Knit had originally come to the court to meet, the preparation or conduct of its case would have been different.  Or in other words, had Turbo-Knit been deprived of the full opportunity to deal with this question now to result in any unfairness?

14.  In my view, the question is again no.  Given the unchallenged evidence coming from Turbo Knit itself that (a) the replacement yarns had been delivered to it by Whole-Light, (b) there is no dispute as to the quantity of the replacement yarns so delivered, (c) there is no dispute as to the value of these replacement yarns, and (d) Turbo-Knit had in fact made use of these yarns, I cannot see there is any arguable room for Turbo-Knit to say that the new question if confronted at beginning, would have somehow affected its preparation or conduct of its case.  It must be reminded that this evidence comes from Turbo-Knit’s own witness at trial and in its witness statement filed. 

Conclusion

15.  For the above reasons, I do not accept that this proposed ground of appeal has a realistic prospect of success.  I therefore dismiss Turbo-Knit’s application for leave to appeal.  

16.  I further order that costs of this application be to Whole Light to be taxed if not agreed, with certificate for counsel.

[1] [2003] 2 HKLRD 56 at 68B-G.