Gitanes Engineering Co Ltd v Cowinda Ltd

CourtHigh Court (Hong Kong)
Judgement NumberHCA11472/1982
Subject MatterCivil Action


Action No. 11472/82





Gitanes Engineering Co. Ltd. Plaintiff


Cowinda Limited Defendant


Coram: Deputy Judge Saied in Court.

Date of Trial: 21, 22, 23, 24 January 1985

Date of Delivery of Judgment: 30 January 1985




1. The plaintiff's claim against the defendant arises out of an oral agreement which it claims was reached between the parties on or about the 15th January, 1982 whereby the plaintiff was to transport mud for disposal at a dumping area in Nine Pins on behalf of the defendant at rates which it claims were agreed at $10.00 per 12 ton truckload and $14.00 per 16 ton truckload; and the plaintiff was to buy from the defendant pell mell rubble at rates which the plaintiff claims were agreed at $70.00 per 12 ton truckload and $46.65 per 8 ton truckload. It was the plaintiff's case that no term for which the agreement was to last was fixed and that each delivery was to amount to a dealing.

2. The plaintiff avers that on or about the 12th February, 1982 the rates were varied: the rate of $10.00 per 12 ton truckload of mud was maintained but only if the quantity of mud was the same as the quantity of rubble delivered by the defendant during any half-monthly period, and where the quantity of mud exceeded that of the pebbles then the plaintiff would charge at the rate of $25.00 for each 12 ton truckload that was in excess in the same half-monthly period. The price of rubble was varied to $30,00 per 12 ton truckload and $20.00 per 8 ton trucdload.

3. The plaintiff ' s claim is that for the period 16th January- 17th October, 1982 an amount of $951,084 .20 was due and payable by the defendant for services rendered by the plaintiff in the transportation and disposal of mud; and for the period 16th January-30th June, 1982 an amount of $305,328.75 was due and payable by the plaintiff to the defendant for the rubble it bought from the defendant. Giving the defendant credit for $100,000.00 paid on the 5th May, 1982 and allowing a set-off in the amount it owed to the defendant, the plaintiff now claims the balance of $545.755.45.

4. The defendant admits the meeting of the 15th January, 1982. It admits ts that the rates in respect of mud were as stated by the plaintiff but avers that the other terms agreed were:

(i) the rates of rubble were agreed at $105.00 per 12 ton truckload, and $70.00 per 8 ton truckload;

(ii) the arrangements were to continue until the end of the Chuk Yuen Chuen project when the account between the parties was to be stated and settled.

5. The meeting of the 12th February, 1982 is admitted, but the defendant avers that at this meeting the defendant was requested "to withhold further deliveries of rubble to Hoi Sum Temple Pier for collection in compliance with a written warning from the Government whereby the plaintiff was ordered to reduce the quantity of rubble accumulated thereat", and accordingly delivery of rubble ceased for the period 13th February - 12th March, 1982.

6. In its amended defence and counterclaim, the defendant claims that for the period 20th January - 30th June, 1982 the amount payable by the plaintiff for rubble sold and delivered by the defendant was $858.305.00; and for the period 16th January-15th October, 1982 the amount owed to the plaintiff by the defendant for transportation of mud was $510,710.00 On this basis, the defendant claims that a sum of $347,595.00 is due and owing to it by the plaintiff, which it claims in its counterclaim. It also counterclaims the refund of $100,000.00 which it says was paid as "deposit on account to secure additional services to be rendered by the plaintiff to Virbo (HK) Ltd. "(it should read Vibro which was the name mentioned in evidence )"at the defendant's request, namely, sea transport of mud from Hoi Sum Temple Pier to the reclamation area at Hong Kong and Macau Ferry Pier".

7. In its reply, the plaintiff joins issue with the defendant on its defence in so far it relates to what is alleged by the defendant to have been agreed between the parties, and while admitting that an agreement with Vibro (HK) Ltd. for the dumping of mud was entered into, it denied that the payment of $100,000.00 by the defendant had any connexion with that agreement with Vibro.

8. At the beginning of the trial, the parties agreed to each other's bundle of documents, both as to their authenticity and admissibility. The plaintiff's bundle was marked Ex. P1 and that of the defendant, Ex. D1. As various documents from these bundles were referred to during the trial, I have used the particular exhibit number to which the document belongs, followed by the document's number in the bundle.

9. Also agreed between the parties is the quantity of mud and pebbles that was delivered, the various quantities being those...

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