TSUI WAH FERRY SERVICES (HK) LTD v. Y & H ENGINEERING CO LTD

DCCJ5245/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5245 OF 2002

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J U D G M E N T

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1. The plaintiff and the defendant entered into an agreement dated 17 September 2001 under which the plaintiff agreed to provide ferry service to transport the workers of the defendant from Hong Kong Island to Lamma Island.

2. The rental of the service varied with the number of workers. The relevant rates for the purpose of this action were $16,000 per month for 19 passengers or below and $33,000 per month for 51 to 60 passengers. Then for any single trip there would be a charge of $1,400.

3. In this action the plaintiff claims against the defendant for arrears of such rental in the total sum of $183,400, which is the total of seven invoices issued in respect of ferry service provided from January 2002 to the end of June 2002.

4. In support of its claim, the plaintiff called Miss Mak Yuk-yee, Sandy as its witness. Miss Mak is a director of the plaintiff and she confirmed that the invoices, as particularised in the statement of claim, have been issued by the plaintiff to the defendant pursuant to the agreement referred to above. She also confirmed that the total sum outstanding is still at $183,400.

5. The defendant has not appeared at the trial. It has, however, filed a defence and counterclaim through solicitors on 18 September 2002. In the defence counterclaim, the defendant raised two defences.

6. Firstly, it says that the plaintiff has overcharged the defendant for the service provided because the number of passengers at all material times was at 19 or below and the relevant monthly charge should have been $16,000 only.

7. Since the defendant has not given any evidence, I will ignore this line of defence. Furthermore, I note that the defendant has not made any complaint of overcharge in any contemporaneous document.

8. The second line of defence is by way of an implied term, namely that the plaintiff should have provided a vessel solely for the use of the defendant's workers, and the defendant goes on to say that the plaintiff has breached this implied term because it has allowed other workers of other companies to share the ferry service. However, no particulars have been pleaded on what damages have been suffered by reason of this alleged breach of the implied term by the plaintiff.

9. I accept the submissions of Mr Wong for the plaintiff that in order to imply a term in a contract, the term should only be implied if it is in all the circumstances equitable and reasonable. Furthermore, a term can only be implied if there is the necessity for it being implied.

10. I do not see any necessity for such a term to be implied here because without the implied term, the parties could still perform the contract. I also note that the defendant has, by a letter of 19 February 2002 addressed to the plaintiff, sought indulgence from the plaintiff because there was already substantial amount of rental for the vessel in arrears.

11. Neither this letter nor any other document bears any complaint from the defendant on the lack of exclusive ferry service provided by the plaintiff. I therefore do not see any merit on this ground of defence.

12. I therefore give judgment to the plaintiff for the sum as claimed at $183,400. I also order interest at the judgment rate to accrue from the issue of the writ up to today, and I further order that cost of this action be to the plaintiff.