EVER HARVEST TOBACCO AND LIQUOR BONDED WAREHOUSE LTD v. FORCE 8 CELLARS LTD

bjbj z P gP Defendant ____________ Coram: H.H. Judge Chow Hearing dates: 12th to 15th and 22nd August, 23rd October and 28th November 2008 Date of handing down Judgment : 6th February 2009 JUDGMENT The Plaintiff is a limited company carrying on the business of providing warehousing and delivery services for duty paid goods and duty free goods. The Defendant is a limited company carrying on the business of importing, distributing and selling wines. The Plaintiff s claim against the Defendant is for the payment of $52,808.41, being outstanding payment for services provided to the Defendant. On the other hand, the Defendant counter-claims against the Plaintiff for the amount of $716,961.93. On 7 October 2005, the Plaintiff and the Defendant signed a Warehousing and Delivery Agreement ( the Agreement ) under which the Plaintiff agreed to provide warehousing, logistics and delivery services to the Defendant. Pursuant to the Agreement, the Defendant would deliver their goods (duty paid wines) to the Plaintiff s warehouse at G1-G2, Ground floor, Well Fung Industrial Centre, 68 Ta Chuen Ping Street, Kwai Chung, New Territories ( the Warehouse ). The Warehouse was divided into two areas: one for the storage of duty paid wines, and one for the storage of duty free wines. According to Laura Budlong, at 12:52 p.m. on 27 October 2005 a finalized stock list of items of duty paid wines to be stored at the Warehouse was emailed by her to the Plaintiff. On 27 October 2005, the Defendant delivered the first batch of wines to the Plaintiff. It is not disputed that the Defendant s wines arrived without a delivery list provided by the delivery workers. The Defendant only provided the Plaintiff with a stock list. According to Mr. Liang Jin Sheng ( Liang ), the director and shareholder of the Plaintiff, by referring to delivery lists the Plaintiff could check whether the items unloaded matched those as set out in the delivery lists. If items unloaded matched those as stated in the delivery lists, the Plaintiff would sign on the delivery lists, confirming that the wines unloaded were in order. The delivery workers of the Defendant and the Plaintiff would respectively keep a copy of the signed delivery list for record. According to Liang, the Defendant s wines arrived by truck at late 27th to early 28th October, 2005. Since no delivery list was provided by the Defendant, he estimated that about 7,000 bottles of wines were delivered to the Warehouse that night. He also found that the Defendant had placed different kinds of wines (different brand names, years and vintages) in one pallet (Each pallet had about 50 boxes of wines) or even in each single box (Each box contained 12 bottles of wines). So they were required to open each sealed box of wines in order to confirm the details of each bottle of wine. Mr. Kenneth Cheng ( Kenneth Cheng the operational manager of the Defendant), Zico Man and all the delivery workers were unable to conduct the stock count that day. The Plaintiff did not sign any document to confirm the receipt of the wines because the exact amount or type of wines unloaded could not be ascertained at that time. The Defendant s wines were then placed in the Warehouse to be sorted out. Kenneth Cheng agreed with Zico Man that the Defendant would pay overtime charges to the Plaintiff in this regard. On 29 and 31 October 2005, the Defendant continued to deliver wines to the Warehouse. About 10,000 bottles of wines were delivered on these 2 days. The delivery workers just left after unloading the wines at the Warehouse. The wines unloaded were packed in a disorganized manner, e.g. different types of wines were packed in a single box. The Plaintiff s workers had to spend a lot of time to sort out the wines by opening the boxes and pulling out the wines for inspection. This made stock counting an impossible matter to be completed. About 2 or 3 days after the arrival of the first batch of wines, the Defendant provided the Plaintiff with a list of wines ( the Defendant s List ) and began to give instructions for deliveries of wines from the Warehouse to its customers. But during this time, the Plaintiff s workers were still in the course of stock counting the wines whereas the Defendant s workers were unloading wines at the Warehouse. So the Plaintiff found it very difficult to keep track of the ingoing and outgoing of the wines that had still to be inventoried. Liang had no way of knowing whether the Defendant s List accurately reflected the amount and type of wines delivered to the Warehouse. The Defendant s List was produced to the Plaintiff two or three days after the arrival of the Defendant s first batch of wines. This made it impossible for the Plaintiff to check whether the wines unloaded by the Defendant s delivery workers corresponded accurately the amount and types of wines referred to in the Defendant s List. The Defendant s picking and delivery of wines from the Warehouse in the course of this situation intensified the problem, and made it impossible for the Plaintiff to have a proper stock count of the wines. In view of this problem, on 30 October 2005, he talked to Laura Budlong at the Warehouse about the Plaintiff s difficulties, but she insisted on the picking up and delivery of wines from the Warehouse without waiting for a proper stock count to be done. In view of her attitude, he told her that it would be impossible for the Plaintiff to provide its services to the Defendant as per the Agreement. The two of them orally agreed ( the Oral Agreement ) for the duty paid wines, that firstly, from the outset of November 2005, the Plaintiff, instead of providing the warehousing services to the Defendant as per the Agreement, would only rent out the Warehouse to the Defendant to store its wines at HK$8,000 a month, and other than delivery of the wines, the Plaintiff would not provide other services to the Defendant (i.e. stock counting, packing, unpacking, placing, sorting of the wines etc., would be handled by the Defendant) and that secondly, for delivery of the wines, the Plaintiff would follow the Defendant s instructions to pick up and deliver the wines and would charge the Defendant in this regard. On 7 December 2005, Liang sent a letter to the Defendant, stating that the Agreement was to be terminated on 7 February 2006. On 16 February 2006, Laura Budlong and Laing signed a settlement agreement under which the Defendant agreed to pay $58,000 to the Plaintiff as full and final settlement for the services provided by the Defendant while in return, the Plaintiff agreed that the Defendant could retrieve their duty paid wines from the Warehouse. She gave a post-dated cheque dated 20 February 2006 in the amount of $58,000 to Liang. She then retrieved all the Defendant s duty paid wines from the Warehouse. The cheque was dishonoured on 21 February 2006. On 22 February 2006, the Plaintiff terminated the settlement agreement and asked the Defendant to settle the full sum of $96,358.63. On 24 February 2006, the Plaintiff cashed a cheque issued by the Defendant in the sum of $46,608. The Defence case is that the calculations of the invoices are not correct because the Plaintiff did not do the calculations in accordance with the Agreement, and that the warehousing and delivery services provided by the Plaintiff were poor. The Plaintiff was in breach of the Agreement, thereby causing losses and damages to the Defendant. The Defendant s only witness is Laura Budlong. She was not present when the Defendant s wines were delivered to the Warehouse. Kenneth Cheng was present at the Warehouse at that time. But he did not testify in court. So what she told this Court is hearsay evidence. She said that when the first batch of wines arrived at the late morning or early afternoon on 27 October 2005, the Warehouse was not ready for receiving the wines because the metal racks intended to keep the wines had not been set up. She further avers that the Plaintiff did not have sufficient space in the duty paid area as the Plaintiff continued to use part of that area as a passageway for use for the duty free area. She alleges that photos shown at the Bundle of Documents (F139-142) show the condition of the Warehouse on 27 October 2005. But those photos were taken by Kenneth Cheng, and not by her. Kenneth Cheng did not testify in Court, so that there is no evidence to show when these photos were taken. So whatever she told this Court in relation to the photos is hearsay evidence. Such evidence carries little weight. It is sheer common sense that there should be a delivery list to accompany the delivery of the wines. By checking the quantity of wines delivered against the delivery list, the receiver of the wines could tell whether the wines delivered corresponded with the delivery list. A stock list cannot be a substitute for a delivery list. A stock list is a list showing the quantity of articles stocked up in some place, e.g. a godown or a warehouse. Such goods may or may not be delivered. So a stock list cannot be a substitute for a delivery list. Laura Budlong was in this business in France for 15 years, and for a number of years in Hong Kong. There is no reason that she is not aware of the importance of providing a delivery list to the Plaintiff. The lack of delivery lists must have caused the problems faced by the Plaintiff when the batches of wines were delivered to the Warehouse. There is no witness from the Defendant who personally witnessed what actually happened in respect of the delivery of the wines. In other words there is no evidence to contradict the evidence of Liang. I find that the scenario depicted by Liang is truthful. Liang said that the situation led him to reach the Oral Agreement with Laura Budlong. But Laura Budlong strongly denies this allegation. It is the Plaintiff s case that pursuant to the Oral Agreement, it issued invoices to the Defendant, charging the Defendant $8,000 per month for renting out the Warehouse to the Defendant to store its wines. On this issue, this Court will examine the evidence available. On 10 March 2006, Messrs. Minter Ellison ( Minter Ellison ), the Defenant s solicitors, wrote to the Plaintiff regarding, inter alias, about the invoices provided by the Plaintiff in January, 2006. It states:- 1. Invoices provided in January 2006 According to our client s records, you invoiced our client a total sum of HK$49,681.00. In January 2006, your Mr. Liang agreed orally with Miss Budlong of an client that HK$11,392 need not be paid. Consequently, our client paid you a total sum of HK$38,289 by cheques on 13 and 18 January 2006 in full settlement of all your charges up to 31 December 2005. For the sake of completeness, we set out below particulars of the invoices and agreed deduction. Date Invoice No. Original Amount Agreed Deduction Amount Paid 3.11.2005 2005/11/001 2,445.00 1,885.00 560.00 3.11.2005 2005/11/002 1,380.00 710.00 670.00 3.11.2005 2005/11/003 620.00 290.00 330.00 3.11.2005 2005/11/004 1,488.00 680.00 808.00 Missing invoice 237.00 237.00 6.12.2005 2005/12/007 3,329.00 2,225.00 1,104.00 6.12.2005 2005/12/0087 2,400.00 2,400.00 31.12.2005 2005/12/011 24,000.00 24,000.00 31.12.2005 2005/12/012 800.00 390.00 410.00 31.12.2005 2005/12/013 330.00 330.00 31.12.2005 2005/12/014 435.00 105.00 330.00 31.12.2005 2005/12/015 400.00 70.00 330.00 31.12.2005 2005/12/016 412.00 412.00 31.12.2005 2005/12/017 410.00 10.00 400.00 31.12.2005 2005/12/018 1,045.00 25.00 1,020.00 31.12.2005 2005/12/019 Client delivery - 11/05 9,950.00 8,885.00 1,065.00 31.12.2005 2005/12/019 Client delivery - 12/05 (6,520.00) 6,520.00 Total 49,681.00 ======= 11,392.00 ======= 38,289.00 ======== (Underlines provided) It is important to note that the agreed deduction for invoice 2005/12/011 is . The Defendant paid the full amount of $24,000 as requested by the Plaintiff. No query had been raised in respect of this invoice before the sum of $24,000 was paid. In its letter dated 10 March 2006, Minter Ellison did not make any protest in respect of this request for payment. Then on 20 June 2006, in its letter to Ford Kwan & Co., Minter Ellison made a protest for the first time in relation to the request for payment of $24,000 under this invoice. It said:- 1.3 We are further instructed that although our client had paid your client s invoice no. 2005/12/011 dated 31 December 2005 in full in the sum of $24,000.00, the charges therein have not been computed correctly. Ever Harvest has simply charged a flat rate of HK$8,000/month for the 3 months from 8 October 2005 to 8 January 2006. Our client calculated that no more than 50 cbm of wines were stored at Ever Harvest s warehouse on any single occasion. Ever Harvest has simply failed to provide sufficient space to store and manage our client s inventory in accordance with Clause 1.1 of the Agreement. The correct charges should be calculated as follows: HK$90/cbm x 50 cbm x 3 months = HK$13,500.00 On the basis of this calculation, our client has overpaid Ever Harvest by HK$10,500.00. (Underlines provided) If what is stated above is truthful, why was this not raised in its letter dated 10 March 2006? It was abundantly clear that the Plaintiff charged the Defendant a flat rate of $8,000 per month for 3 months from 8 October 2005 to 8 January 2006. According to the Defendant this is a wrong calculation. Then it should not have agreed that there was deduction, and paid the full amount. The Defendant received Invoice No. 2005/12/011 some time in January 2006. In March 2006 it must have noted its contents, when it gave instructions to Minter Ellison about various invoices issued by the Plaintiff, which included Invoice No. 2005/12/011. So the Defendant must have gone through the contents of the Invoice No. 2005/12/011 for the second time. It must have realized that the Plaintiff had not computed the charges under Invoice No. 2005/12/011 correctly by the time it gave instruction to Minter Ellison. Yet it raised no disagreement with this invoice. There is simply no excuse for the Defendant to say that it was not aware that the Plaintiff was charging warehouse fee at a flat rate of $8000 per month. By letter of 10 March 2006 issued by Minter Ellison, it agreed that there was to be no deduction for the sum of $24,000, being the warehouse fee for 3 months. Yet on 20 June 2006 it turned round and said that the charge rate of $8,000 per month was not correct. In doing so, it went against its letter dated 10 March 2006 in this respect, and yet no explanation was offered as to why it had admitted the charge at this rate of $8,000 per month being correct, and then about 3 months later it changed its stance. The defence evidence in this regard is wholly incredible. I do not accept for one second that the defence raised on this issue is truthful. I accept without any hesitation the evidence given by Liang. The invoices concerning the rate of warehousing the wines are in line of what Liang told this Court in respect of the circumstances leading to the formation of the Oral Agreement. That is the true scenario. I reject the evidence given by Laura Budlong that the Oral Agreement did not exist. I find that she was not telling me any truth in this regard. The accuracy of the calculations of the Plaintiff s invoices The claims instituted by the Plaintiff are as follows:- (1) Invoices in January, 2006, including 3 months of storage fees at $8,000 per month $49,579.00 (2) Invoices in February, 2006 $62,787.61 (3) Loading and unloading charges $14,179.04 (4) Additional 6 invoices, including one month storage for at $8,000 from 10.01.2006 to 9.02.2006 $11,059.76 $137,605.41 ========= The Plaintiff received $84,797 in total from the Plaintiff. Hence the Plaintiff is now claiming $52,808.41 ($137,605.41 - $84,797). By a letter dated 7 February 2006, the Plaintiff set out the amount due from the Defendant:- Outstanding balance of $19,395 from invoices issued in December 2005. Invoices issued in February 2006, in the sum of $62,787.61. The amount due at 7 February 2006 is $82,182.61 ($19,395 + $62,787.61). As soon as the cheque (in the sum of $58,000) issued by the Defendant was dishonoured, the Plaintiff asked for the full sum due, namely, $82,179.61 (the correct figure should be $82,182.61), and a sum of $14,179.02 for loading and unloading charges (the Loading Charges) for removing the Defendant s wines from its previous warehouse. So it asked for the sum of $96,358.63 ($82,179.61 + $14,179.02). On 20 February 2006, the Defendant paid to the Plaintiff a sum of $46,608. So the Plaintiff claims that the outstanding sum due to the Plaintiff is $49,750.63 ($96,358.63 - $46,608). By a letter dated 10 March 2006, Minter Ellison avers that the Defendant is not liable to pay $49,750.63 for the following reasons:- It was orally agreed that there would be a discount of $11,392 in relation to the invoices provided in January, 2006; The Plaintiff had made overcharges in some invoices; for example, the amount due under Invoice 2006/02/016 should be $402.39, and not $14,717. It was orally agreed that another 3 invoices relating to the Loading Charges in the sum of $14,179.04 were to be waived. By a letter dated 28 March 2006, Ford Kwan informed Minter Ellison that additionally 6 invoices had been served on the Defendant in the total sum of $11,059.76, namely:- Date Invoice No. Amount Payable 27.1.2006 2006/01/001 $8,000.00 28.2.2006 F03/B0028 $1,029.42 28.2.2006 F03/B0029 $852.91 28.2.2006 F03/B0029 $296.97 28.2.2006 F03/B0030 $592.61 28.2.2006 F03/C0001 $287.85 Total $11,059.76 ======== By a letter dated 20 June 2006, Minter Ellison says that:- The sum of $11,392 under the January invoices need not be paid due to errors in the invoices. But in its letter dated 10 March 2006, Minster Ellison says that it was orally agreed between the parties that $11,392 need not be paid . The amount due under the Invoice No. 2006/02/016 should be $12,519 instead of $402.39 as mentioned by the Defendant in its letter dated 10 March 2006. Hence the balance due should be $12,116.61. (It is a glaring surprise as to why the Defendant could have made such a big mistake!); There should not be a flat rate of $8,000 a month for the storage of wines in the warehouse; Under Clause 1.6 of the Agreement, there should not be any Loading Charges; The Defendant would only be willing to pay $3,059.76 to settle the six invoices. So it would not pay $8,000 (Invoice No. 2006/01/001). Item (1) of the letter 10 March 2006 does not refer to errors in the invoices. But item 1 of the letter dated 20th June, 2006 refers to errors in the invoices. So it appears that in its two letters, Minter Ellison gave two different reasons to explain the non-payment of $11,392 by the Defendant. Miss Ye Jieyun, an account clerk of the Defendant, gave evidence relating to the calculations of the logistic and storage charges as represented by the invoices sent to the Defendant. According to her, she made explanations to Kenneth Cheng about the invoices after every invoice had been sent to the Defendant. Zico Man also informed her that the amount stated in the invoice had been agreed and confirmed by Kenneth Cheng before the invoice was issued and sent out. Kenneth Cheng did not testify in Court to rebut her evidence. Laura Budlong did not put questions to her to test her credibility on the accuracy of the invoices. She attached Annexes to her closing submission, in order to prove that the Defendant s calculations are correct. She told this Court that the information disclosed in the Annexes has been adduced as evidence in the trial. So what this Court should do is to refer to the evidence adduced in the course of the trial. I accept the evidence of the Plaintiff s interests. I am satisfied that the invoices issued by the Plaintiff are accurate. I do not accept the Defendant s evidence that the invoices are incorrect. Accordingly I enter judgment in favour of the Plaintiff in the sum of $52,808.41. The Counter-claims Item 1 of the Counter-claim is for the overpayment of storage fees in the sum of $10,500. This claim must fail as the storage charge was fixed at a flat rate of $8,000 per month. Item 2.1 is the claim for delivery charges paid to Lucky Win Lam Wai Kwok Delivery. The Defendant alleges that it paid $560 when it should have paid $270 in accordance with Clause 2.1 of the Agreement. Clause 2.1 forms the legal basis of this item. The Agreement did not operate since November 2005. So Clause 2.1 of the Agreement does not apply to this item. There is scanty any information about this claim. The Defendant has not proved that it is due to the fault of the Plaintiff that an extra sum of $290 was paid to Lam Wai Kwok. Therefore this claim cannot stand. Item 2.2 is the Delivery charges paid to Fortune Transport as a result of Ever Harvest s failure to deliver. Our client paid HK$1,920 which consisted of transferring 85 cases of wines to its office and delivery of 10 shipments. In accordance with Clause 2.1 of the Agreement, Ever Harvest was only entitled to charge HK$450 (HK$45 x 10). Scanty evidence was adduced to support the claim. There is only a bare allegation that the Plaintiff failed to deliver. The circumstances relating to such an alleged failure were not known. There is no actual evidence adduced to show that the Plaintiff was at fault. Fundamentally the Agreement was not operative since November 2005. So this claim must fail. Item 2.3 is Delivery charges paid to Kuehne and Nagel in respect of pick up of wines from port. Our client had paid HK$880 when it should only be liable for HK$250 in accordance with Clause 3.1 of the Agreement. The Defendant has failed to show that the Plaintiff was at fault so that it had to pay the sum of $630 ($880 - $250). The Agreement no longer operated since November, 2005. So there is no legal basis to ground this item. Under Item 3, there is no evidence to show that the Plaintiff did receive the sum of $1,068, and that it failed to return this sum to the Defendant in accordance with Clause 2.11 of the Agreement. The Agreement no longer operated since Nov., 2005. There is no legal basis to ground the claim. So this claim must fail. In respect of Items 4 and 5, the Plaintiff never acknowledged receipt of the Defendant s wines. It must have received the wines before it could lose them. In the absence of such a receipt the Defendant has failed to prove that the Plaintiff had possession of the wines before it could lose them. The Defendant has not produced evidence to show that they were indeed lost, and that they were lost due to the fault of the Plaintiff. So claims 4 and 5 must fail. Under Item 6, there is no evidence to show that the Plaintiff did receive the wines in question. The storage of wines at the Warehouse was managed by the Defendant since November 2005 under the Oral Agreement. There is no evidence to show that it was due to the fault of the Plaintiff that the wines were lost. The alleged missing of wines was based on stock count on 17 March 2006. Since 15 February 2006, the Plaintiff s warehouses had been transferred to Wealthzone Bonded Management Limited ( Wealthzone ); hence the Plaintiff cannot be responsible for this claim item. So this claim item must fail. There is no evidence to support Items 7 and 8, which are bare allegations. The Defendant relies on Clause 2 and Clause 1.9 of the Agreement as the bases of its claims. But the Agreement was no longer applicable since November 2005. So these two claims must fail. Under Item 9, the Defendant produced a home-made statement signed by Laura Budlong alleging that $3,000 was paid to the Plaintiff s staff. The statement was dated 31 December 2005. It reads:- I confirm payment in Cash of HK$3,000 to 5 workers at HK$600 per day. Workers were paid to assist Ever Harvest staff in organizing the Duty Paid and Duty Free warehouse at Ever Harvest s request and following the constant missed deliveries and miss-deliveries made by Ever Harvest. This amount covers 5 workers for HK$600 per day on approx. October 31, 2005 November 1, 2005 December 28, 2005 I confirm receipt from Force 8 Cellars of reimbursement of cash paid HK$3,000.00. If the payment is $600 per day for 5 workers on 31 October, 1 November and 28 December, then the sum involved is $1,800 ($600 x 3) and not $3,000. In the claim it is stated 5 days in October, November and December 2005 at HK$500/day for 6 workers, i.e. HK$600 x 6 workers . In the statement only 3 days and not 5 days were set out. Furthermore the statement refers clearly to 5 workers, and not 6 workers. So the claim is at great variance with the home-made statement. There is scanty evidence about this claim. I adjudge that the Defendant has not proved its case on the balance of probabilities. Item 10 is Taxi cost for delivery of our client s wines to the Hong Kong Cricket clubs following incorrect delivery by Ever Harvest on 13 December 2005. The claim amount is $137.80. There is no evidence to support this claim. Under Item 11, Laura Budlong produced a home-made statement to support the Defendant s claim. It reads:- I confirm payment in Cash of HK$1000 to 2 workers of Ever Harvest, Mr. Gee Sing Lai and Ah Cheong at HK$500 per day. Ever Harvest had not completed movement of wines from Duty Free warehouse to Duty Paid warehouse according to our agreement and prior to the date Force 8 was to remove wines according to Ever Harvest s termination letter. These staff worked during the CNY New Year s holiday and should have been paid by Ever Harvest to complete the job. Force 8 told Ever Harvest it would be billed for work done to complete their contractual requirements. I confirm receipt from Force 8 Cellars of reimbursement of cash paid HK$1000.00 The agreement must be the Agreement, which no longer operated since November, 2005. There is scanty evidence to support this claim. Item 12 is based on the followings:- Payment to workers to attend to the moving out between 7 and 9 February 2006 at the Wah Fung Warehouse and Ever Harvest s showroom as a result of Ever Harvest s failure to assign staff to receive, sort and package our client s inventory in accordance with Clause 1.7 and 1.8 of the Agreement. The Agreement no longer operated since November 2005. This claim is based on a bare allegation asserted by the Defendant, and only supported by a home-made statement signed by Laura Budlong. There is no other factual evidence to support this claim. Item 13 is based on Invoices from AZA Cargo in respect of the removal of the Defendant s inventory from the bonded warehouse as a result of the Plaintiff s failure to assign staff to receive, sort and package in accordance with Clauses 1.7 and 1.8 of the Agreement. The Agreement no longer operated since November 2005. So the legal basis for this claim has gone. There is no evidence to show that the Defendant has paid the alleged amount. There is evidence to show that the costs were incurred due to the fault of the Plaintiff. So this claim must fail. Item 14 is based on Smartone Telephone bill in respect of calls made to arrange for the moving of the Defendant s inventory as a result of the Plaintiff s failure to release. The total sum of the bill is $6,502.27, but the Defendant is claiming for $4,384.60. So some of the telephone calls must have nothing to do with the Plaintiff. But it cannot be distinguished which telephone calls are related to the Plaintiff. It is incredible that calls to arrange for moving the Defendant s inventory would amount to $4,384.60. If the call is $1 per minute, it would mean 4384 minutes (about 6.6 hours) to make the arrangement. This is simply incredible. This claim is not substantial by sufficient factual evidence. It must fail. Item 15 is the storage charges paid to Wealthzone for the period 15 to 28 February 2006 as a result of the Plaintiff s failure to release the Defendant s inventory. This is a statement of account issued by Wealthzone dated 31 March 2006 claiming for outstanding payment for March 2006. It is not a receipt. It does not support payment of $8,877.19, the amount claimed under this item. Further, the management of the Plaintiff s warehouses was transferred to Wealthzone on 15 February 2006. This is a matter between the Defendant and Wealthzone. So the Plaintiff cannot be involved during this period. Item 16 concerns storage charges paid to Wealthzone for the period from 1 to 31 March 2006 as a result of the Plaintiff s failure to release the Defendant s inventory. The Defendant produced a cash receipt allegedly issued and signed by Wealthzone for $21,892.70 received for the storage from 1 to 31 March 2006. Since the Plaintiff had transferred the management of the warehouses to Wealthzone on 15 February 2006, this is a matter between the Defendant and Wealthzone. There is scanty evidence to form the factual basis of this claim item. Claim Item 17 is loss of profit on sales due to non-release of 72 bottles of wines by the Plaintiff in respect of an order from H K Cricket Club. It is only a bare allegation. There is no factual evidence to support this claim. Item 18 is loss of profit of one year s supply contract with the Foreign Correspondents Club ( ) in February 2006 as a result of the Plaintiff s persistent errors and failure to make deliveries. There can be many reasons for FCC not to place further orders. No one from FCC testified in Court to show the reason(s) for doing so. Attachment 16 shows a purchase order dated 23 February 2006 issued by FCC in the sum of $7,800 ($5,460 + $2,340). This does not support the Defendant s claim for $233,776.80. There is no evidence to support the alleged persistent errors and failure on the part of the Plaintiff to make deliveries. This claim cannot stand. Item 19 is the loss of one year s supply contract with the Red Bar as a result of the Plaintiff s persistent errors and failure to make deliveries. In support of this claim, the Defendant only produced an internal delivery form it issued on 1 November 2005. There can be many reasons for the Red Bar to stop placing orders with the Defendant. No one from Red Bar testified in Court to show the reason(s) to stop placing orders with the Defendant. The Defendant has not produced sufficient factual evidence to show how the Plaintiff was at fault. Item 20 is loss of potential sales of 12 bottles Suckifizzie Cab. Sauv 2003 2820.00 to the Repulse Bay Hotel as a result of the Plaintiff s failure to locate the wine from its warehouse between 7 to 9 February 2006. There is no proof that such wines were kept in the Warehouse at the material times. The Defendant has not adduced sufficient factual evidence to support this claim. The Defendant has not adduced evidence to show that the Plaintiff was at fault. Due to the afore-said reasons I dismiss all the Defendant s items of Counter-claim. I enter judgment in favour of the Plaintiff in the sum of $52,808.41. I order that the Defendant do pay, within 14 days from today, the Plaintiff the sum of $52,808.41 with interest thereon at judgment rate, commencing from 12 July 2007, until satisfaction. Costs I make an order nisi, to be made absolute in 14 days time, that the Defendant do pay costs of this action to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel. (S. Chow) District Judge The Plaintiff: represented by Mr. Brian Wong instructed by Messrs. Chan & Tsui, Solicitors. The Defendant: represented by Miss Laura Budlong, unrepresented. - PAGE A B C D E F G H I J K L M N O P Q R S T U V 1udk 1udk H I J K L M N O P Q R S T U V (#p# >*6D :i#z *\mT zo/< xC&1 ({m8 =J+> P0} bM-]" W~7gb W~7g xC&1 ({m8 =J+> bM-] F?.c n*\U & 6" Normal.dot setup Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8