POLYTRADE CHEMICALS CO. LTD. v. SAI KEE CONTAINER TRANSPORTATION LTD. t/a SAI KEE CO.

IN THE COURT OF APPEAL

1997, No. 188
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by the defendant against the order of Deputy Judge W.C. Li in the District Court on 1 April 1997, entering summary judgment upon the plaintiff's summons under rule 27(1)(b) of the District Court Civil Procedure (General) Rules, Cap. 336.

2. Mr Bernard Mak for the respondent elects to make no submissions on the merits. He has, however, put in helpful written submissions. The matter in the light of those submissions can be dealt with quite shortly.

3. The statement of claim in substance pleaded a breach of agreement to transport the plaintiff's goods from Hong Kong to mainland China. It averred that, because of the negligence of the defendant's driver in queuing in the wrong channel at the Chinese Border Customs Post, the goods were detained with the consequence that the plaintiff had to pay $23,200 by way of a deposit and storage charges.

4. The defence consisted almost entirely of bare denials of the averments in the statement of claim, with the additional denial that the defendant had never entered into any agreement as alleged in the Particulars of Claim or at all.

5. The deputy judge, as is clear from his reasons given on 9 April 1997, took the view that the defence was a general traverse without more of the plaintiff's claim and that this was "prohibited" by the Rules of the Supreme Court O18 r13(6). He concluded that the defendant had not disclosed any reasonable ground of defence, and therefore entered judgment in favour of the plaintiff.

6. However, both parties had before the hearing on 1 April 1997 put in affidavits, the plaintiff in support and the defendant in opposition to the plaintiff's summons. The affidavit put in by the defendant raised two defences. First, it denied that the defendant was in breach of the agreement in the way alleged and deposed that to the contrary it was the unreasonable refusal of the plaintiff's factory manager in China to bring the requisite import permit to the Customs Post, that caused the detention of the plaintiff's goods.

7. Second, it claimed that its transport business had been conducted only as a sole proprietary business, and that a company that had been incorporated with that intention had never got to the point of taking over the transportation business, and had never entered into any agreements. Moreover the company that had been incorporated had a different name from that specified in the statement of claim.

8. The deputy judge should have had regard to the affidavits. That is trite law and also obvious from the wording of r27(1)(b) that has been referred to. Had he done so, he might not have entered judgment. That seems clear from the reasons the deputy judge gave on 19 April 1997 for dismissing the defendant's cross summons to strike out the defendant's name in the proceedings, which the deputy judge had heard and dismissed at the same time as the plaintiff's summons on 1 April.

9. In those reasons the deputy judge appears to acknowledge that the position of the plaintiff in naming the defendant company in the way it has and moreover as the sole defendant is untenable, that name not being that of the company incorporated by the transportation business. Curiously the deputy judge did not bring that view to bear upon his consideration of the plaintiff's summons.

10. However all that may be, clearly the appeal must be allowed. I would accordingly allow the appeal and set aside the orders below and in place thereof order that the plaintiff's summons be dismissed.

Godfrey, J.A.:

11. I agree.

Liu, J.A.:

12. I also agree.

Nazareth, V.-P.:

13. The appeal is accordingly allowed, the orders below set aside and the plaintiff's summons dismissed. Having heard counsel on costs, we order that the defendant is to have its costs of the plaintiff's summons below with a certificate for counsel, and also its costs of its application for leave to this Court and of the appeal.