CHOW KIN MAN t/a CHOW'S TRADING & TRANSPORTATION CO. v. SHUM YIP WA SHENG CO. LTD.

HCA6008/94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6008 OF 1994

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. In its Re-amended Statement of Claim, dated 6th February 1999, the plaintiff company claimed against the defendant company for a total sum of $1,854,744 as damages. The basis of the claim was that the defendant had failed, inter alia, to obtain the licences from the Mainland authorities that were necessary for the operation of the transportation business carried out by one Hoi Tung Development Company which was jointly set up by the plaintiff and the defendant. The defendant did not appear at the trial and its Solicitors, Messrs Yip, Tse & Tang had filed a notice of cease to act on 12th March 1999. The plaintiff was represented by Counsel.

2. The defendant should have been aware of the trial date as the case was on the Fixture List. In the circumstances, Counsel for the plaintiff proceeded to prove his case in accordance with O.35, r.1(2), which provides that when the trial of an action is called on, if one party does not appear, the judge may proceed with the trial of the action or any counterclaim in the absence of that party.

3. Before the hearing, the plaintiff submitted a supplemental bundle of pleadings and witness statement which included the Re-amended Statement of Claim, the Re-amended Defence, and the second witness statement of Chow Kin Man.

4. To prove the case, the plaintiff had called three witnesses. PW1, Chow Kin Man, was the sole proprietor of the plaintiff company. Under oath, and with the leave of the court, Mr Chow adopted and confirmed the contents of his two witness statements dated 30th June 1995 and 19th September 1998. The two witness statements covered the factual basis of the claim and the method of calculating the damages. Mr Chow testified that the amount claimed remains outstanding.

5. A number of exhibits were produced by Mr Chow. They included three receipts of payment made by Mr Chow to the defendant, the first agreement made between the plaintiff and the defendant regarding the setting up of Hoi Tung Development Company, two supplemental agreements and an agreement signed between Mr Chow and the Shenzhen company as referred to in paragraph 6 of the Re-amended Statement of Claim.

6. The main issue in this dispute, as raised on the pleadings, was whether the defendant had the obligation but failed to obtain the licences for Hoi Tung Development Company for the period from 5th March 1993 to 4th March 1995.

7. PW2 and PW3 were called in relation to the damages. They testified that as a result of the failure to obtain the licences, the plaintiff had to refund to them the licence fees that they had paid earlier. They had also prepared witness statements, which they adopted in their evidence.

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

Orders

9. In the premises, I shall give judgment to the plaintiff of the said sum of $1,854,744 as particularised and claimed under paragraph 12 of the Re-amended Statement of Claim and interest at judgment rate from 21st June 1994 to the date of payment.

10. I also make an order nisi that the 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.