CHUNG SAU SAN AND ANOTHER t/a BROTHER METAL WORKS CO. v. CHUI KUEN t/a KUEN LEE STEEL & IRON WORK ENGINEERING CO.

HCA6515/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.6515 OF 1997

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J U D G M E N T

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1. This is the trial of an action by the plaintiff against the defendant where the plaintiff is suing the defendant for the sum of $186,750 in respect of work done and goods supplied in a project in relation to Kowloon Tong which, in the course of the trial, is called the 2nd project. It is common ground between the parties that a deduction should be made from the claimed sum of $186,750 in respect of a cart that was taken away by the plaintiff from the defendant valued in the sum of $2,900. So far as the plaintiff is concerned, there is no dispute that $183,850 ought to be paid by the defendant.

2. The defendant has three defences to the claim. The first defence is that a sum of $80,000 had been paid by the defendant to the plaintiff in July 1995, and therefore that sum should be deducted from the amount claimed. The plaintiff says "No, the sum was received but it is in relation to a what is called 'the 1st project' of earlier date". So the question then is : was the $80,000 paid in respect of the 1st project as contended by the plaintiff, or paid as deposit for the 2nd project as contended by the defendant. Much of course will depend on both the circumstantial evidence and the written documentation, as well as on the oral evidence of the parties.

3. So far as oral evidence is concerned, I have no doubt that the only witness for the plaintiff, i.e. Mr Chung Sau San, is a credible, reliable and excellent witness and that the defendant, Chui Kuen, is a wholly unreliable and a deceitful witness. I reject everything material said by the defendant at this trial, and I have no hesitation in accepting everything said by the plaintiff, Mr Chung.

4. So far as the circumstantial material is concerned, the story in relation to the 1st project starts with the quotation. The quotation can be seen at page 1 of the plaintiff's bundle consisting of 10 items of work required to be done. The defendant says he did not receive it, but the plaintiff says that the quotation, of course, was given to the defendant. It just simply does not make sense for the plaintiff not to give a quotation. In relation to the 2nd project, the quotation at pages 12 and 13 was admitted to have been received. So I can see no sense in no quotation being given in respect of the 1st project.

5. The quotation is important because it corresponds to the invoices. The invoices for the work done in relation to the 1st project are to be found at pages 6 and 7, i.e. Invoice Nos.3340 and 3341, and they tally in respect of the 10 items of work done stated in the quotation. The defendant says he only received the 1st invoice, that is, No.3340 and not the 2nd invoice, No.3341. It can be seen that those two invoices had mark on the top right hand corner "(1)" and "(2)". So they came as a set and it simply made no sense for the plaintiff to give to the defendant only No.3340 and not No.3341.

6. The case of the defendant on the 1st project is that he only received Invoice No.3340 and he relied on his document (Exh. D1) and said that was for $96,800 and the agreement between him and the plaintiff was to treat the $50,000 - which was an undisputed deposit that was paid earlier - as the full payment for the 1st project. He relied on the words written at the bottom left of Exh.D1 as evidence of this.

7. I do not believe a single word of what he said, for it made no sense to give one invoice. It made no sense for the plaintiff to agree to accept $50,000 as settlement for a total 1st project sum of something like $130,000; and it certainly makes no sense for the plaintiff, or anyone on his behalf, to be writing at the bottom of Exh. D1 the words "the total sum of $96,800" or the words "payment all at once of $50,000". I do not accept the veracity of the defendant's evidence or the authenticity of the last line of Exh.D1.

8. The receipts, Exh.D2 and D3, that had been relied upon where there were written in pencil the references to the projects are not reliable. I have no doubt that the plaintiff, Mr Chung, did not write those words, which are not, as far as I can see, in his handwritten. They are in pencil. It would make no sense if the plaintiff was making the notations in the receipts by reference to the project that the plaintiff should be writing it in pencil for both receipts. I think that the likelihood is that the defendant, in his desperation, had doctored these documents and put them forward as evidence of the alleged settlement and as alleged payment of the $80,000 for the 2nd project. So far as the defence of the payment of $80,000 is concerned, I dismiss it as having no merits whatsoever.

9. I now turn to the 2nd defence. The 2nd defence is a minor one. This is in relation to the gas burner in relation to the 2nd project where the defendant says $3,500 should be deducted. I have no doubt that this oral allegation is not to be believed. It is not backed by any documentation as far as I can see and I accept the plaintiff's version of the events.

10. The last defence of the defendant, by way of counterclaim, is that the plaintiff had ordered 37 carts of various models, with each model in various quantities. The total sum alleged to be owing therefore by the plaintiff to the defendant for these 37 carts is some $93,000 odd. It is the defendant's case that these were orally ordered by the plaintiff but the plaintiff did not take up delivery. The defendant said that he chased the plaintiff once or twice, but the plaintiff did not take up delivery and that it took the defendant a long time (something like a year or more) to sell these carts in mitigation and that he had made a loss. He also had to store them for that period of time and therefore there should be a sum payable in respect of the proportion of the rent of the premises taken up by the storage of these carts. That is the essence of the counterclaim.

11. The defendant admits that there is no written contemporaneous document exchanged between the parties in relation to the order. The defendant further admits that there was no invoice sent by the defendant to the plaintiff in relation to these sums alleged to be owed for the carts ordered. The defendant also admits that he had sent no written communication to chase the plaintiff for the counterclaimed sums. As I have indicated earlier, I have no doubt that the plaintiff's version of events is to be accepted, he being a reliable witness. I just find it incredible that the defendant could put up such a story and hope that would be believed. There is simply no substance to the oral order. There is no substance in his excuse of why he did not send any invoice to the plaintiff in relation to these cart orders while he had certainly sent invoices to all the others in relation to his mitigation sales. And it just simply made no sense for the defendant to have these carts and did so little with them for so long. The defence of the counterclaim in relation to the 37 carts, therefore, is not established.

12. The case of the defendant fails in total. I therefore order that judgment be entered in favour of the plaintiff in the sum of $183,850 with interest thereon from the date of the writ until today, at 3% above prime. The plaintiff is to have the costs of the action which I will now assess by way of gross sum assessment under Order 62, rule 9(4)(b).

13. I have seen the two schedules and I will order by way of gross sum assessment that the full sum set out in the schedule of the plaintiff before me should be paid by the defendant. The sum I assess is $170,350 + $33,500 = $203,850. This sum is to be paid forthwith.