SUPERIOR WAY INDUSTRIAL LTD v. EXCELLENT STEEL COIL CENTRE (HK) LTD

HCA 1243/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1243 OF 2006

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D E C I S I O N

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Application

1. This is an application for summary judgment by the Plaintiff against the Defendant.

Preliminary issues

2. One day before the scheduled hearing before me, both parties took out similar summonses to attempt to adduce further affidavit evidence.  With consensus, I allowed the applications and ordered that costs thereof would be in the cause of the application for summary judgment.

3. I also had another summons from the Defendant to amend its Defence.  Parties agreed that, depending on the outcome of the Order 14 application, this Court would see how this application was to be decided.

Background

4. On 9 June 2006, the Plaintiff commenced the present proceedings against the Defendant for, inter alia, a sum of $1.5m, being price for purchase of steel.  It was pleaded that no steel was delivered and so there was a total failure of consideration on the part of the Defendant.

5. Having received Answers to the Request for Further & Better Particulars of the Statement of Claim, the Defendant filed its Defence on 10 August 2006.  Briefly, the Defendant denied having entered into any agreement with the Plaintiff.  It was pleaded that an oral agreement for sale and purchase of steel was made on or about 18 December 2003 by the Defendant as vendor and one Dongguan Chin Fai Metal Products Factory (東莞巿石碣展輝五金制品廠) (“Chin Fai”), an associated company of the Plaintiff, as purchaser.  The oral agreement was made by Mr. Lau Yun Kai (“Mr. Lau”) of the Chin Fai and Mr. Gao Guan (“Mr. Gao”) of the Defendant.  It was also said that Mr. Lau was the General Managers of the Plaintiff, Chin Fai and another associated company of the Plaintiff, called Dongguan Hi Fai Metal Products Co. Ltd (東莞協輝五金制品有限公司) (“Hi Fai”).  Payment of the subject HK$1.5m was then made by the Plaintiff as deposit to enable to Defendant to arrange delivery of the steel.  On 9 January 2004, the oral agreement was reduced into writing by Sale Contract No. 2003 ECL-S39.

6. The Defendant further said that the steel was delivered and payment of the contract price of RMB2,512,620 was effected by:

(a) the said deposit of HK$1.5m,

(b) transportation fee of RMB31,403.38 paid by Chin Fai to a state-owned intermediary company 深圳巿豐利恆保稅貿易有限公司 (“FLH”),

(c) custom duty of RMB491,222.85 paid by Chin Fai to FLH, and

(d) balance of HK$364,162.78.

7. The Plaintiff filed its Reply on 7 September 2006 and joined issue with the Defendant on its case.  It was specifically denied that Mr. Lau had been a General Manager of the Plaintiff.  He was only the General Managers of Chin Fai and Hi Fai, but had been dismissed due to misconduct.

8. On 18 September 2006, the Plaintiff issued the present Order 14 application. It was said that payment as per 6(d) above was not made by the Plaintiff.  Instead, a sum of RMB1,989,993.77 was paid by Chin Fai to the Defendant through FLH.  The Defendant is therefore liable to return the said sum of HK$1.5m, or that the Defendant would be unjustly enriched.  I heard the substantial arguments of the matter on 6 March 2007.  Mr. Bernard Man of Counsel represented the Plaintiff and Mr. Jonathan W. Ah-weng acted for the Defendant.  Having heard from both Counsel, I reserved my decision to be delivered.  I now do so.

The Law

9. The legal principles in relation to application for summary judgment are clear.  It suffices to summarize that the underlying policy of the Order 14 application is to prevent the defendant from delaying the plaintiff to obtain judgment in a case whereby the defendant clearly has no defence.  Two questions are to be dealt with.  First, factually, is what the defendant says believable in light of undisputed or indisputable circumstances?  In this respect, the Court is entitled to take into account of the commercial reality as well as of the contemporaneous documents.  However, mini-trial on affidavit evidence shall not be embarked.  Bare assertion is insufficient and the defendant must condescend upon particulars.  Second, legally, if what the defendant says is believable, does it amount to an arguable defence in law?  After all, the burden lies on the defendant to show triable issue or some other reason to be a trial.

Ruling and Reasons

10. Applying the above principles to the present application, I have come to the decision that unconditional leave should be granted to the Defendant to defend for the proceedings.  My reasons appear below.

11. First, I cannot come to a conclusion that the case of the Defendant is unbelievable in the circumstances.  There is evidence that Chin Fai did pay HK$1,989,993.77 to FLH.  However, does such sum go to the Defendant?  The Defendant denies the same, and the best that the Plaintiff can provide with this Court is the followings:

“24.     I have myself made inquiries with FLH and I was told by an officer of FLH that according to their records, the Remainder Sum had been duly paid out by FLH in accordance with the instructions of the Defendant but FLH would not disclose any further to Chin Fai on the ground that it was not our business.  Notwithstanding my request for their written confirmation, the officer of FLH verbally replied that it was not necessary for them to and they would not give us any written confirmation.”

(2nd Affirmation of Ho Chi Man filed on 6 November 2006)

Such “tracing result” is far from satisfactory.  In my view, it does not justify for an order of summary judgment.

12. On the other hand, it should be noted that there is also evidence that the sum of HK$364,162.78 was indeed paid to the Defendant.  These issues of facts are to be resolved at trial.

13. Second, in order to explain to me as to why the sum of HK$1.5m was paid, both parties put before this Court different PRC practices.  Mr. Man said that:

“3. Briefly stated, P’s case is that:

(1) Under the relevant PRC practice (which protects all parties concerned, including the seller), since the transaction involved a supply of goods by a Hong Kong entity (D) to a PRC entity (Chin Fai), the goods would first have to be delivered to a state-owned entity 深圳巿金屬材料有限公司 (“SMC”) and all payments under the sale contract (including custom duty and transport charges) would have to be paid to FLH pending completion of the formalities, at which point the goods would be released by SMC to Chin Fai ……

(2) Upon completion of the relevant procedures, FLH would pay over the contract price to entities as directed by the seller of the goods (D) ……

(3) Hence, the manner of the payment out of the RMB1,989,993.77 by FLH to D is a matter between FLH and D only and P could have no knowledge at all ……

(4) ……

(skeleton of Mr. Man)

Mr. Ah-weng however submitted:

“4. D’s case, in gist, is that:

a. ……

b. ……

c. Under PRC law and quite apart from paying for the Goods under the Contract, Chin Fai had to collect tax vouchers equal to the Contract Sum and hence, apart from paying for Custom Duty and Transportation Fees (for which tax vouchers were also issued … it had to pay FLH the Remainder Sum, being RMB1,989,993.77 (equivalent to Deposit + Balance) in order to collect tax vouchers of the equivalent value...  Afterwards, Chin Fai can direct the monies to be paid elsewhere...  Chin Fai appeared to have paid the sum to FLH, but there is no evidence as to how the money was dealt with after it entered FLH.

(i) P takes issue with the PRC legal procedure regarding the RMB1,989,993.77 after Chin Fai paid it to FLH and claims that D had the power to instruct FLH, and it would have been paid automatically to D ……

(skeleton of Mr. Ah-weng)

14. Such dispute cannot be decided at this stage.  Mr. Man attempted to persuade me to accept the Plaintiff’s case because the Defendant’s case was “wholly nonsensical and completely unbelievable”.  I respectfully decline to go into such exercise because by so doing, I would be conducting a mini-trial on affidavit evidence making finding of facts on trade practice in PRC.  Irrespective whether the parties will adduce expert evidence in future, the matter has to be decided at trial.

15. Third, if this Court will accept the Defendant’s case, I do not consider that it does not amount to an arguable defence in law.

16. Fourth and finally, Mr. Man further commented on a number of weaknesses on the Defendant’s case.  It suffices for me to conclude that they will be factors to be considered by the Court in assessing merits of the Defence at trial, but are not persuasive enough to amount to factors justifying granting summary judgment against the Defendant.

Directions and Costs

17. In the circumstances, in relation to the Order 14 application, I grant to the Defendant unconditional leave to defend for the proceedings.  As to costs, it appears that there is no reason to depart from the usual costs order as stated in paragraph 14/7/13 of HKCP 2007 at page 197.  I therefore further direct that there is an order nisi that costs of the application, including costs reserved on 23 October 2006 and Certificate of Counsel for hearing on 6 March 2007, be in the cause.

18. Regarding the Defendant’s summons for amendment of its Defence, I allowed the same as follows:

(a) The Defendant do have leave to amend its Defence in the manner as shown in the copy annexed to the summons filed herein on 28 February 2007.

(b) The Defendant do file the Amended Defence within 14 days from the date hereof.

(c) Service of the Amended Defence on the Plaintiff be dispensed with.

(d) The Plaintiff do also have leave to amend its Reply within 21 days from today.

(e) There is an order nisi that costs of and incidental to this application and the amendment, including the costs reserved on 5 March 2007 and Certificate of Counsel for hearing on 6 March 2007, be to the Plaintiff and borne by the Defendant to be taxed if not agreed, in any event.