TUNG HO CO (PTE) LTD v. NELSON LOO T/A NELSON ENTERPRISES CO

HCA002884/1977

IN THE SUPREME COURT
1977 No. 2884
(Civil)

BETWEEN
TUNG HO CO. (PTE) LIMITED Plaintiff
and
NELSON LOO trading as NELSON ENTERPRISES COMPANY Defendant

Coram: Zimmern, J.

Date of Judgment: 26th May, 1978.

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JUDGMENT

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1. This is an appeal by the plaintiff against the decision of the Registrar setting aside a default judgment conditional upon the defendantpaying into Court the liquidated damages of US$24,870.24 within 14 days which the defendant has done.

2. The plaintiff is a foreign corporation without residence within the jurisdiction. By its Statement of Claim the plaintiff claimsagainst the defendant inter alia damages for breach of a contract in writing entered into between a Hong Kong company for and onits behalf and the defendant covering the sale and purchase of a shipment of logs from Indonesia to Taiwan by failing to open theletter of credit which the defendant was bound to do under one of the terms of the contract.

3. The contract in writing was signed by the defendant without any qualification but the defendant however says first it was at alltimes acting as an agent and second in any event the letter of credit was subject to the final user in Taiwan obtaining an importlicense.

4. There was no direct negotiations between the plaintiff and the defendant. The negotiations were between the plaintiff’s agent inHong Kong and the defendant. The evidence shows the whole matter was of some urgency as the logs were afloat in harbour and a vesselwas en route for the purpose of loading. The defendant says the plaintiff’s agent approached him to dispose of the logs well knowinghe was not a buyer of such goods but had connections in Taiwan with such buyers. It was common ground that there was a first contractdated 4th April 1977 which was discharged by mutual agreement. That contract was also signed by the defendant without any qualificationand clause 10 reads thus:

“Letter of credit should be opened by the buyer on/before April 14, 1977 subject to import license being granted to the end-user,Skyscraper Enterprise Co., Ltd. of Taiwan by the Government of the Republic of China (Taiwan)”

5. The contract was discharged because Skyscraper failed to get an import license from Government and the defendant found another buyerthough at a lower price.

6. Clause 10 of the contract sued on reads:

“Letter of credit number should be informed Letter by telex on/before April 25, 1977.”

Henry Tsao Hang Lei of the defendant firm has sworn in an affidavit that he had pointed out to the defendant’s agent before signingthe contract of the omission of the provision concerning import license in Clause 10 and that the agent had said that there was nopoint in putting the provision in because if the people buying the cargo wanted the import license, they would get it. Henry Tsaorelied on that statement.

7. I am in agreement with the Registrar. Inspite of the strenuous efforts made by counsel for the appellant I am unable to say thatthe defendant has failed entirely to disclose any arguable issue. The issues raised might be rather thin and the less I say the betterbut the Registrar has imposed on the defendant stringent terms for the right of defending with which the defendant has complied.The appeal is dismissed. Costs in the cause. Certificate for counsel.

Representation:

Allman-Brown (Wilkinson & Grist) for the plaintiff

William Lane (Johnson, Stokes & Master) for the defendant