Wai Yuk Ching v Kung Wah Trading Company Ltd [1998] FJHC 207; Hbc0371j.94s (18 November 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0371 OF 1994

BETWEEN:

WAI YUK CHING
trading as SHIE TA INVESTMENT COMPANY
a firm c/- 64 Pathik Crescent, Namadi Heights,
Suva
- Plaintiff

AND

KUNG WAH TRADING COMPANY LIMITED
a limited liability company having
its registered office at 41 Freeston
Road, Walu Bay, Suva
- Defendant

S. Maharaj for the Plaintiff
G.P. Lala for the Defendant

Dates of Hearing and Submissions: 14th, 15th May, 11th August 1997,
6th April, 4th, 19th May 1998
Date of Judgment: 18th November 1998

JUDGMENT

The Plaintiff claims from the Defendant the sum of $25,000.00 for breach of contract in failing to supply to the Plaintiff 130 kilograms of dried shark fins after the Plaintiff had paid this amount to the Defendant and $8,000.00 loss of profit for non-delivery of the goods. The Plaintiff also claims interest at the rate of 13.5 per centum per annum on the sum of $25,000.00 from about 17th of August 1993 the date on which it alleges goods were to be shipped from Fiji to Hong Kong.

Both parties gave evidence and the hearing was protracted due to difficulties in obtaining a translation of the numerous documents most in the Chinese language on which the parties relied.

According to the Plaintiff she ordered 130 kilograms of dried shark fins from the Defendant in or about August 1993 which the Defendant agreed to supply by the 20th of August 1993. The Plaintiff said that as required by the Defendant she paid the sum of US$16,151.00 equivalent to approximately F$25,000.00 as follows:

(a) By remitting US$9,700.00 to the Defendant's Account No. 30-206288.00 with ANZ Bank Limited on 17th August 1993.

The Defendant admits receiving this amount.

(b) Paying the sum of US$6,451.00 (HK$50,000) to Yu Cheong Trading Company. The Plaintiff says she paid to this company on instructions of the Defendant who denies giving such instructions and denies receiving this sum from that company.

The receipt (Exhibit 11) translated by Mr. Edmund March states "Now received HK$50,000.00 from sister Wai to pay for Yian Xiu Hua" (meaning the Yian Xui Hua of the Defendant company.

After paying the above sums the Plaintiff waited for a while but when she did not receive the goods ordered she telephoned and wrote to the Defendant querying the non-delivery of the goods. This appears from nine letters from the Plaintiff to the Defendant at various times.

By letter dated 25th November 1993 the Plaintiff cancelled the order and asked the Defendant to refund her the sum of US$16,151.00 (Exhibit P.15).

The Defendant did not send the goods until after the order was cancelled. The Bill of Lading (Exhibit P.17) shows the place and date of issue of that Bill of Lading as 18/12/93 at Suva by the vessel Kyowa Hibiscus Voyage 63.

It appears that the Defendant faxed the Bill of Lading to the Plaintiff and upon receipt of it the Plaintiff wrote a letter dated 27th December 1993 to the Defendant in which inter alia she said as follows:

(a) "Saw you fax about the Custom Document, feel very strange; why I didn't order the Beachtimer and you sent 75 kg Beachtimer for me."

(This is a reference to the Bill of Lading which refers to 75 kilograms of Bech-De-Mer.)

(b) The Plaintiff met a person named Yian Xiu Hua of the Defendant company at Hong Kong Airport and referring to that meeting in the letter of the 27th of December she wrote further inter alia as follows:

"... You went back to Fiji on 21st October, I farewell in Hong Kong Airport. Begging you again to refund some money for me, but you said the money is send by bank, you don't have money with you. You'll arrange after you go back. Until now after four month, 1. Because the delay supply the buyer who order in August, cancel the order. 2. Goods different from sample I don't want. 3. Now the price of the fin (market) lower in August. 4. I lost hope to deal business with a untrustable person like you. So even you supply me the goods now, won't take it; now I'm very busy with other business."

According to the Defendant she never instructed the Plaintiff to pay Yu Cheong Trading Company.

Having observed her give evidence I am unable to accept her version of the events. I found her an unsatisfactory witness who when cross-examined on a number of occasions did not answer questions which she obviously thought would damage her case. In addition I do not accept her claim that she never instructed the Plaintiff to pay Yu Cheong Trading Company for the following reasons:

(a) The Defendant claims she supplied the full order yet has done nothing to claim the money from Yu Cheong Trading Company although the Plaintiff notified her as early as 18th August 1993 that she had paid US$9,700.00 to the Defendant's ANZ Bank account in Fiji and US$6,440.00 to Mr. Chou (meaning Yu Cheong Trading Company of Hong Kong) but made no claim on that company for the money. Neither does she write or question the Plaintiff why she paid Mr. Chou without her instructions.

In my judgment the reason for this was that she had instructed the Plaintiff to pay the money to Yu Cheong Trading Company.

Exhibit P.7 is a letter from the Defendant to the Plaintiff wherein the Defendant asks the Plaintiff to pay the money as follows:

(1) Deposit US$9,700.00 in the Defendant's ANZ Bank Account 30-206288.00.

(2) Deposit the balance of the total amount said to be US$12,550.00 to her private account so that the Defendant could avoid paying certain taxes.

I take the word "private" to mean payment to Yu Cheong Trading Company in Hong Kong. The Plaintiff actually paid US$6,440.00 and not $12,550.00. Reading the letter P.7 it seems the Defendant was hoping to sell the Plaintiff more shark fins. She uses expressions such as "all is very beautiful", "is made from good fin", and "if you want can send you about 25 kilograms".

There is evidence that the Defendant went to Hong Kong in October 1993 and the Plaintiff met her at Yu Cheong Trading Company's office. Exhibit P.18 is a letter from the Plaintiff to the Defendant which contains this passage:

"You said got some loose fins, I ask you why not give me to sell, you say try tomorrow, second time I met you said sold to someone else, don't feel sorry when you receive my money for so long and you came back to Hong Kong too. Never give me the goods? Or totally you don't want to give me the goods. I hurt, I tears, in front of Chou's brother in the office a old woman like me crying in front of you to beg you, no goods then refund my money on time after time I gave my account # wrote to me. Beg you refund my money in my account; begging you in the long letter, beg you take some trust to me."

Here the Plaintiff is saying she complained to the Defendant to her face and cried in an effort to beg the Defendant to refund the money she had sent and yet according to the Plaintiff the Defendant did not reply. When she was cross-examined on this the Plaintiff said that when she wrote that letter on the 27th of December 1993 she had not received the faxed Bill of Lading.

It was never put to the Plaintiff in cross-examination that the passage I have just quoted was untrue. I therefore deduce from this that the Plaintiff was telling the truth when she described the incident referred to. In my judgment the Plaintiff complied with the Defendant's instructions to send US$6,440.00 or HK$50,000.00 to Yu Cheong Trading Company and the Defendant received that money. The Plaintiff maintains that she never ordered Bech-De-Mer at all but 130 kilograms of dried shark fins only.

The letter Exhibit P.18 begins with these two sentences:

"I went to Japan for business, after one week come to Hong Kong today. Saw you fax about custom documents, feel very strange, why I didn't order the Beachtimer and you sent 75 Kg Beachtimer for me."

I am left with no doubt that the only order placed by the Plaintiff was for 130 kg of dried shark fins and no Bech-De -Mer at all. In my judgment therefore the Defendant did not supply what she was requested to and agreed to supply and for which she was fully paid. I therefore find it unnecessary to say much about the question of whether the Defendant supplied unmerchantable goods but only that in my judgment the evidence is overwhelming that the goods were unmerchantable. When the goods were inspected under protest in Hong Kong by the Plaintiff after the shipping company kept insisting that she clear the goods or return them at her own cost to Fiji the survey report says this:

"DRIED SHARK FINS found to be "caudal" grade, not fin and with no commercial value.

BECHDEMER found to be of inferior grade and of negligible value."

Of course the Plaintiff's case is that she did not order Bech-De-Mer.

I suspect that all along counsel for the Defendant realised he had an up-hill task so that in his submissions, perhaps not unnaturally, he refers to Exhibit P.11 which according to the Plaintiff is the receipt from Yu Cheong Trading Company on behalf of the Defendant for the sum of HK$50,000.00.

Counsel submits that the letter is only a receipt and does not mention whether the Defendant had authorised the payment or whether the payment would be made to the Defendant. Counsel then quotes the case Plomien Fuel Economiser Co. Ltd. v. National Marketing Co. (1941) 1 Ch. 248 in which Morton J. said that if a party to a dispute is to have a statement, to which no cross-examination can be directed, adduced in evidence against him, that party obviously labours under a great disability and so the statement must be treated with considerable caution. He said it is imperative therefore if such a statement is admitted it should have been made by an independent person in the ordinary sense of that expression. I do not question that statement of the law but point out that this document was admitted by consent in the trial and it is therefore too late now to say that its contents cannot be relied on because they were never subjected to cross-examination.

For all his experience and skill as a lawyer even counsel for the Defendant cannot make a purse out of a sow's ear. In my judgment the Defendant's evidence in cross-examination was discredited on all issues.

I found her evasive and untruthful and much prefer the Plaintiff's evidence which was not shaken in cross-examination. There will therefore be judgment for Plaintiff in the amount claimed namely $25,000.00 with interest at the rate of 13.5 percent from 18/8/93 to the date of judgment, a sum of $17,718.75. Normally I would have probably awarded less interest than claimed but as no submissions were made to me by the Defendant on this and the case is purely a commercial one I consider the rate of 13.5 percent is reasonable.

The Plaintiff is also entitled to judgment in the sum of $8,000.00 for loss of profit so that the total award will be $25,000.00 + $17,718.75 + $8,000 = $50,718.75.

The Defendant must also pay the Plaintiff's costs.

JOHN E. BYRNE
JUDGE

Case referred to in judgment:

Plomien Fuel Economiser Co. Ltd. v. National Marketing Co. (1941) 1 Ch. 248.

The following additional legislation and authorities were referred to in submissions:

Sale of Goods Act Cap. 206.
Gills & Duffs S.A. v. Berger & Co. Inc. (1984) AC 382.
Holton v. Holton (1946) 2 ALL E.R. 534.
Biddell Brothers Ltd. v. E. Clemens Horst & Co. Ltd. [1911] UKLawRpKQB 61; (1911) 1 K.B. 934.
Atiyah, Sale of Goods, 6th Edition, Pitman Publishing, London.
Benjamin's Sale of Goods, 5th Edition, Sweet & Maxwell, London 1977.

HBA0371J.94S