Tech Gain International Ltd v La Win Trading Ltd

CourtDistrict Court (Hong Kong)
Judgment Date04 August 2008
Judgement NumberDCCJ6361/2006
Subject MatterCivil Action
DCCJ006361A/2006 TECH GAIN INTERNATIONAL LTD v. LA WIN TRADING LTD

DCCJ 6361/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6361 OF 2006

____________

BETWEEN

TECH GAIN INTERNATIONAL LIMITED Plaintiff
and
LA WIN TRADING LIMITED Defendant

____________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 31 July 2008

Date of decision: 31 July 2008

Date of handing down reasons for decision: 4 August 2008

REASONS FOR DECISION

1. The present case involved the sale and purchase of computer hard disk drives (HDD). Tech Gain, the buyer, contends that due to La Win (the seller)’s breach, it had cancelled the order to La Win for the HDD. Tech Gain claimed for the return of the payment made or alternatively damages. La Win disputed the claim and counterclaimed for damages for Tech Gain’s refusal to take delivery of the HDD.

2. After trial, this court handed down the judgment on 16 May 2008. I dismissed the claim and allowed the counterclaim. Tech Gain applied for leave to appeal against the judgment.

3. After hearing Tech Gain’s application, I refused to give leave to appeal and ordered that La Win should have costs of this application to be taxed if not agreed with certificate for counsel. I said I would give my reasons in writing, which I now do.

4. Leave would normally be granted unless the grounds of the intended appeal have no realistic prospect of success: see Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538.

5. Mr Kwan, who was not involved in the trial, appeared for Tech Gain in the present application. The draft notice of appeal lists out the grounds of the intended appeal. Mr Kwan submitted on the following issues:

(1) subject matter of sale;

(2) warranty of quality by La Win; and

(3) cancellation of the order by Tech Gain.

Subject matter of sale

6. During trial, there was dispute as to whether the subject matter of sale was used HDD as alleged by Tech Gain or scrap HDD as alleged by La Win. I found that parties did not really consider that there was any misunderstanding about the subject matter at the material time. They simply chose to describe them differently (paras.16-23 of the judgment).

7. Mr Kwan agrees with these findings. In this respect, Mr Kwan should perhaps note this court’s observation about the difference between Tech Gain’s pleaded case and its position when the trial closed...

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