NG MEI HA t/a CHERRY v. TOPBEST DEVELOPMENT LTD.

1995, No. A12675

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

________________

________________

________________

J U D G M E N T

________________

1. The plaintiff in this matter sues the defendant for the price of goods sold and delivered to the defendant to a total value of $499,661; the plaintiff alleges that the only payment it ever received on account from the defendant was in the sum of $69,000, and it sues for the balance of $430,661.

2. The defendant pleaded various reasons as to why it was not liable for these goods, including non delivery of a fairly substantial quantity of the goods, also late delivery, delivery of incorrect goods, unmerchantable goods, and goods not corresponding with samples and descriptions.

3. The defendant did not appear today to contest these proceedings, and indeed, its solicitors applied for leave to cease to act for the defendant in terms of a summons which had been issued and was duly served on the defendant and was returnable on the 22nd of this month. However, Mr PAN, a member of the firm of solicitors in question, assured me, and produced a letter to this effect, that the defendant knew well that the proceedings were due to commence today and the matter was due to be heard today. A letter was written to that effect to the defendant, faxed to the defendant on Saturday last, Saturday the 13th, and Mr PAN spoke with a director of the defendant about the letter, and the director confirmed that the defendant did not intend to appear today.

4. The plaintiff proceeded to prove its claim. Madam NG Mei Ha, who is the plaintiff, gave evidence. She confirmed that all the goods in question, as described in the 35 invoices, were duly delivered to the defendant. She further confirmed that at no stage prior to the plaintiff issuing proceedings against the defendant on 7 December 1995, did the plaintiff ever receive any complaints from the defendant concerning non delivery or concerning the quality and quantity of the goods which had been delivered. These various defences were raised for the first time in the defendant's defence and counter-claim dated 8 March 1996.

5. Madam NG also referred to three of the various letters, alleging non delivery of the goods to the defendant, dated 14 June, 27 June and 17 July 1996 respectively. These letters, on the face of them, were addressed by the defendant to the plaintiff alleging non delivery of the goods in relation to specified invoices.

6. Madam NG confirmed that the plaintiff never in fact received these letters, that she became aware of them for the first time, via her solicitors, after discovery of documents had been completed.

7. Mr CHAN, who appeared on behalf of the plaintiff, also drew my attention to the date at the top of these letters, which purported to be the date upon which they were faxed to the plaintiff, and indeed it is quite clear that the date on which they were purported to have been faxed, pre-dated the date on which the letters were written. The fact is that they simply could not have been faxed by the defendant on that date. They appear, on the face of them then, to be highly suspect documents, suggesting that they were manufactured for the purpose of assisting the defendant in resisting payment for the goods in question.

8. I might say that Madam NG struck me as a patently honest witness, who obviously knew what she was talking about. She is well acquainted with the facts of this case, and I accept her evidence without reservation.

9. In all the circumstances, I am quite satisfied that the plaintiff has proved its case beyond a reasonable doubt, proved that it delivered all these goods under these 35 invoices to the defendant, and that it received a payment of only $69,000 from the defendant. So the plaintiff is clearly entitled to the balance of the account rendered.

10. I grant judgment to the plaintiff in the sum claimed, $430,661. The plaintiff is equally clearly entitled to interest on the sum from the date upon which the writ was issued, that is 7 December 1995, and I accordingly grant the plaintiff interest at the judgment rate on the sum of $430,661 as from 7 December to the date of payment, and further order that the defendant is to pay the plaintiff's costs of these proceedings.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

................................................

B. Pirie

Date: 19 September 1997