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Takashi Holding Ltd v Lo Chap Fai T/a Y&h Trading Co And Others

Judgment Cited in Precedent Map Related
Vincent
Judgment Date10 March 2011
CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ6348/2006
Subject MatterCivil Action
DCCJ006317/2006 TAKASHI HOLDING LTD v. LO CHAP FAI t/a Y&H TRADING CO AND OTHERS

DCCJ 6317 & 6348/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6317 & 6348 OF 2006

____________

BETWEEN
Takashi Holding Limited Plaintiff

and
Lo Chap Fai trading as
Y&H Trading Company		 1st Defendant
HPC International Ltd.
HKC Worldwide Electronic Co. Ltd.		 2nd Defendant
3rd Defendant
____________

Coram: H.H. Judge Chow

Date of Hearing: 17th to 19th August, 29th October, 5th & 8th November 2010, 6th, 18th & 31st January 2011

Date of handing down Judgment: 10th March 2011

JUDGMENT

1. The Plaintiff is a trading company, whereas the 1st Defendant is a shareholder and a director of the 2nd and 3rd Defendants respectively. Its claims against the Defendants are for losses and damages it suffered due to the wrongful acts of the Defendants.

2. In August 2005, the Plaintiff received a purchase order from a company in Singapore known as Rich Brothers Pty Limited (“the Rich Brothers”), ordering 4 containers of television sets. There was also another order from an Egyptian client placing an order of 1 container of television sets. Consequently on or about 5th and 26th August 2005 respectively it entered into 4 sales contracts with the 3rd Defendant, as particularized under Paragraph 2 of the Amended Statement of Claim. The 1st Defendant was named as the beneficiary under these 4 sales contracts, each of which contained an express term that the terms of delivery were FOB (free on board) Shenzhen.

3. By 21st September 2005, the Plaintiff had paid the 1st Defendant all the money due and owing under the first 3 contracts and 30% under the 4th contract. On 23rd September 2005, the Plaintiff received the original bill of lading for the 1st contract. However, it never received the remaining 4 containers of goods to Madagascar and their original bills of lading. Hence it instituted the present action against the Defendants. The defence case is that because the Plaintiff owed a debt of US$25,000, a tri-parte meeting was held and an agreement was entered into between the Plaintiff, the Defendants and the Rich Brothers for the settlement of the matter. Hence it is not liable for the claims.

4. When the sale contracts were signed, the Plaintiff was required to pay 30% of the total sum of the sales contracts in advance as deposit before shipment. After payment of this 30%, in or around mid-September 2005, the 3rd Defendant required the Plaintiff to pay the remaining 70% before shipment. On 21.9.2005, the Plaintiff paid this remaining 70% into the account of the 2nd Defendant.

5. According to his witness statement, the 1st Defendant gave an account of what allegedly happened around that time:-

“10. …… However, I was reported form the Shipping Department of HKC that the Plaintiff refused to give the forwarder the freight. As such, the forwarder could not provide the Plaintiff with the bills of lading. For such matter, 2 staff of the Plaintiff, Roger and Victor met with the forwarder in a street in Shenzhen. However, Roger and Victor in the meeting suddenly scrapped the bills of lading from the forwarder and ran away. After such incident, even though Roger and Victor returned the said bills of lading back to the forwarder who had called the police for help, the forwarder and HKC totally lost confidence on the Plaintiff. In order to escape from the risk of the Plaintiff, HKC asked the forwarder to change the parties in the said bills of Lading.

The Plaintiff’s evidence is that, it is the forwarder who seized the bills of lading from the Plaintiff. Mr. Rajsekar Swampypc (“Roger”), witness for the Plaintiff, said that on 11.10.2005, he went to the forwarder’s office at...

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