Hong Kong Case Law: Decisions & Judgments

Topic

Merchantability

Legal area

Court

16 Feb 2011

ICON DATACOM LTD v. SOLARBRITE ELECTRONICS LTD

Citation

ICON DATACOM LTD v. SOLARBRITE ELECTRONICS LTD
Court

Court of First Instance
Case number

HCA985/2005

On the balance of probabilities the defendant supplied a batch of EL panels whose electrical and durability properties materially differed from other batches, rendering them unfit for the known purpose (use in NetPos-2000) and breaching s.16 Cap.26; those defects more likely than not caused the reported failures; the plaintiff proved reasonably foreseeable losses for rework, transport and replacement but failed to establish or mitigate consequential loss of the Tai Shin purchase order and some other claimed items; damages of HK$370,885 awarded plus interest from 27 May 2005.
30 Mar 2007

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

Citation

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

Court of First Instance
Case number

HCA1709/2003

On the balance of probabilities the Court found Moplen EP-332K and Profax 7533 to be the same resin (re-branding/packaging difference) and that plaintiff failed to prove any material defect or breach of the implied terms; HKPC elongation-at-break results were unreliable due to flawed mould temperature control and elongation-at-break is an inherently variable metric; plaintiff's hearsay production evidence lacked sufficient weight. Therefore Kader's claims dismissed; NHH's counterclaim succeeded and judgment entered in NHH's favour.
30 Mar 2007

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

Citation

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

Court of First Instance
Case number

HCA1534/2003

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.
26 May 2003

SIREALTON LTD v. STANDARD TOOLING AND PRODUCTS CO LTD

Citation

SIREALTON LTD v. STANDARD TOOLING AND PRODUCTS CO LTD
Court

District Court
Case number

DCCJ4007/2001

Defendant failed to prove on the balance of probabilities that the copper moulds were defective or that any loss was caused by the Plaintiff; the Plaintiff delivered moulds in accordance with contractual specifications and approved samples; the Summary/Schedule was hearsay of little weight and lacked proof of calculation or causation; therefore judgment for Plaintiff for contract price with interest and dismissal of Defendant's counterclaim.
3 Apr 2003

CAPATEL LTD v. KONG KONG PING, GLADYS t/a EASY TELECOM CO

Citation

CAPATEL LTD v. KONG KONG PING, GLADYS t/a EASY TELECOM CO
Court

Court of First Instance
Case number

HCA3415/2002

There existed triable issues on the identity of the contracting party and on alleged breaches (including sale by sample and merchantability) such that summary judgment was inappropriate; because the Defendant could not meet any conditional payment and conditional leave would effectively deprive Plaintiff of recovery, the proper exercise of discretion required granting unconditional leave to defend and allowing the appeal.
13 Aug 2002

PACIFIC COLOR INDUSTRIES (A FIRM) v. TACTWAY FAR EAST (HOLDING) LTD.

Citation

PACIFIC COLOR INDUSTRIES (A FIRM) v. TACTWAY FAR EAST (HOLDING) LTD.
Court

District Court
Case number

DCCJ8881/2001

Plaintiff proved sale and delivery and non-payment; defendant failed to discharge the burden to prove defects; therefore judgment for the plaintiff for the contract price with interest and costs; counterclaim dismissed for lack of evidence.
10 Feb 1999

ALL FUND INDUSTRIAL LTD. v. QUEENTEX CO. LTD.

Citation

ALL FUND INDUSTRIAL LTD. v. QUEENTEX CO. LTD.
Court

Court of First Instance
Case number

HCA11750/1995

On the evidence the QH (head) PCBs were unmerchantable and unfit for the intended interchangeable use and the Defendant was entitled to reject them; there was insufficient evidence of defect or non‑conformity as to Q‑19 and Q‑23 main board PCBs, so Defendant must pay for those; accordingly judgment is entered for the Plaintiff for the net sum of $346,354 plus interest and the Defendant's counterclaim is dismissed.
28 Dec 1987

REGAL TOUCH LTD v. YASAKI INTERNATIONAL CO LTD

Citation

REGAL TOUCH LTD v. YASAKI INTERNATIONAL CO LTD
Court

Court of First Instance
Case number

HCA250/1987

The court held the plaintiff validly agreed to rewash jackets to a shade whiter than the approved stone-wash sample but failed merchantability because majority displayed patchy blue staining; jackets therefore rejectable and defendant entitled to loss of profit and storage. The ice blue jeans in the second instalment were made in at least four distinct shades constituting breach and were rejectable; the stone washed jeans were non-defective and severable so plaintiff recover contract price for those jeans. Damages awarded accordingly.
1 Dec 1987

HOP FAT GARMENTS FACTORY LIMITED v. SIBER HEGNER AND COMPANY (HK) LIMITED TRADING AS SIBER EXPORT

Citation

HOP FAT GARMENTS FACTORY LIMITED v. SIBER HEGNER AND COMPANY (HK) LIMITED TRADING AS SIBER EXPORT
Court

Court of First Instance
Case number

HCA6197/1985

Paragraph 9 of the Re-Amended Defence contained an exhaustive list of alleged breaches against the plaintiff; the defendant is bound by those particulars and cannot rely on paragraph 11 to enlarge that list without seeking and obtaining amendment; particulars in paragraph 11 are excluded for being ambiguous and for unfairly expanding the pleaded case.
4 Oct 1985

VINCENT SINA TRADERS(H.K.) LTD. v. CHIAP WAH TRADING CO.(a firm)

Citation

VINCENT SINA TRADERS(H.K.) LTD. v. CHIAP WAH TRADING CO.(a firm)
Court

Court of First Instance
Case number

HCA15313/1983

On the balance of probabilities the contracted trousers were defective and unmerchantable (did not conform to samples, were moulded and discoloured); limited inspections and manufacturers' certificates did not rebut the preponderance of evidence (telexes, samples, survey and laboratory reports, testimony); conspiracy was rejected as implausible; accordingly defendant liable in damages and its counterclaim failed; set-off under s.55 Sale of Goods Ordinance applied to deduct unpaid contract price, yielding a net judgment for plaintiff.