KADER INDUSTRIAL CO LTD v. NGAI HING HONG PLASTIC MATERIALS LTD

KADER INDUSTRIAL CO LTD v. NGAI HING HONG PLASTIC MATERIALS LTD

Court accepted expert and manufacturer evidence that Moplen EP-332K and Profax 7533 are the same resin; found HKPC elongation-at-break results unreliable due to uncontrolled mould/cooling temperature; preferred contrary expert evidence showing no material difference; consequently no breach of implied terms or actionable misrepresentation; Kader's substantive claims dismissed; NHH's counterclaim and related claim in second action awarded.

Citation
KADER INDUSTRIAL CO LTD v. NGAI HING HONG PLASTIC MATERIALS LTD
Parties
Plaintiff (hca1534)/defendant (hca1709): Kader Industrial Company Limited; Defendant (hca1534)/plaintiff (hca1709): Ngai Hing Hong Plastic Materials Limited; Third Party (hca1534): Million Supply Limited trading as Wah Cheong Hong; Fourth Party (hca1534): Luen Fung Hong Plastic Materials Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 March 2007
Case Number
HCA1534/2003
Procedural Posture
Consolidated Civil Trial Sale of Goods / Contract / Final Judgment (trial) Delivered 30 March 2007
Outcome
Kader's claim dismissed; NHH's counterclaim upheld; judgment entered for NHH in second action; third and fourth party proceedings dismissed; costs reserved pending written submissions.
Legal Topics
Implied Terms, Merchantability, Fitness for Purpose, Misrepresentation, Damages, Set Off, Third Party Indemnity, Hearsay
Source Language
EN
Contract Sale of Goods Commercial Law Evidence Tort Misrepresentation Implied Terms Merchantability Fitness for Purpose +5 more

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Parties

Kader Industrial Company Limited

Plaintiff (hca1534)/defendant (hca1709)

Ngai Hing Hong Plastic Materials Limited

Defendant (hca1534)/plaintiff (hca1709)

Million Supply Limited trading as Wah Cheong Hong

Third Party (hca1534)

Luen Fung Hong Plastic Materials Company Limited

Fourth Party (hca1534)

Procedural Posture

Consolidated Civil Trial Sale of Goods / Contract / Final Judgment (trial) Delivered 30 March 2007

Legal Issues

  1. 1 Whether seller breached implied condition of correspondence with sample by supplying Profax 7533 instead of Moplen EP-332K
  2. 2 Whether supplied goods contained undiscoverable defect rendering them unmerchantable
  3. 3 Whether there was an implied term as to fitness for purpose for manufacture of toy parts to specified safety tests

Ratio Decidendi

Court accepted expert and manufacturer evidence that Moplen EP-332K and Profax 7533 are the same resin; found HKPC elongation-at-break results unreliable due to uncontrolled mould/cooling temperature; preferred contrary expert evidence showing no material difference; consequently no breach of implied terms or actionable misrepresentation; Kader's substantive claims dismissed; NHH's counterclaim and related claim in second action awarded.

Court Disposition

Kader's claim dismissed; NHH's counterclaim upheld; judgment entered for NHH in second action; third and fourth party proceedings dismissed; costs reserved pending written submissions.

Orders

  • Kader Industrial Company Limited's claim in HCA 1534/2003 dismissed
  • Judgment for Ngai Hing Hong Plastic Materials Limited on its counterclaim in HCA 1534/2003 (counterclaim amount admitted HK$160,305) with interest at 1% over HSBC prime from invoice dates until judgment and thereafter at judgment rate