WINSTON CAMERA & RADIO CO. LTD. v. YUE KONG REALTY LTD. AND OTHERS

HCA7348/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A7348 OF 1996

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J U D G M E N T

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1. In its Re-amended Statement of Claim, the plaintiff claimed against the three defendants for a sum of $2,246,100.00 as the purchase price for goods sold and delivered to the 1st defendant in June 1995. Except the 3rd defendant, the parties were limited companies. The 1st defendant did not appear for the trial and had previously ceased giving instructions to its Solicitors, Messrs So & Associates. All the other parties were present and were represented by Counsel.

2. Before commencement of the trial, parties had asked for indulgence to hold discussions, which resulted in a settlement reached between the plaintiff and the two present defendants. Their agreement was reduced into writing and signed by the parties concerned. In effect, the plaintiff had decided to withdraw its claim against the two defendants and chose to proceed against the absent 1st defendant only. Having heard Mr Cheung of Messrs So and Associates, the Court learned that the director of the 1st defendant was aware of this trial date but elected not to attend. Mr Cheung was excused by the Court.

3. To prove its case, the plaintiff had called two witnesses. PW1, Lam Hoi Tat, was the representative of the 2nd defendant. His testimony simply confirmed the 2nd defendant's role as the carrier of the air-conditioners in question. Under oath, Mr Lam adopted his witness statement dated 22 October 1998 (marked as P-2), in which he maintained that he had no knowledge about the dealings or identities of the plaintiff or the other defendants. However, one could appreciate that this witness was called by the plaintiff to show that such goods really existed and they were actually delivered.

4. PW2 was the manager of the plaintiff company. He confirmed the claim against the 1st defendant as stated in the Re-amended Statement of Claim and testified to the truthfulness of the contents of his witness statement (marked as P-3) which stood as the evidence-in-chief. He also produced the set of documents marked as P-4 (1) to (37). One of the most important documents appeared to be the debit note P-4 (12) which showed the details of the relevant transaction regarding the model numbers, quantity, unit price and the total amount involved. The debit note, dated 5 July 1995, bore the name of the plaintiff company and it was addressed to the 1st defendant.

5. Regarding the delivery of this debit note, PW2 first said in evidence that it was posted to the 1st defendant but then corrected himself when reminded of his witness statement. He said that Madam Guo Zhen, who was a director of the 1st defendant, had collected it personally at the plaintiff's office on 9 July 1995. PW2 also mentioned in his witness statement that Madam Guo had subsequently acknowledged her indebtedness under the debit note but claimed that she was unable to settle the amount for the time being.

6. Having heard Counsel for the plaintiff, and having considered the uncontradicted evidence presented by the plaintiff, I found the claim proved on a balance of probabilities.

Orders

7. In the premises, I shall give judgment to the plaintiff of the said sum of $2,246,100 as claimed under paragraph 17 of the Re-amended Statement of Claim and interest at the judgment rate from 1 July 1996 to the date of payment. I also make an order nisi that the 1st defendant do pay costs of the plaintiff in this action, to be taxed if not agreed. The order nisi is to become absolute after expiration of 14 days from the date of this judgment.