JUDGMENT

IanChin J:

Introduction

The writ herein was taken out on 20 October 1995 by Soosan Trading Co. Ltd., a South Korean company, ('the plaintiff') against six defendants but the trial involved supposedly three, namely, Tawau Auto Sdn. Bhd. ('the 1st defendant'), Lucas Liong ('the 2nd defendant') and Lung Wing Sang ('the 4th defendant'). However, as the evidence revealed, the names of the 2nd defendant and of the 4th defendant, though different, refer to the same and one person.

Therefore, the trial involved only the 1st defendant and the 2nd defendant.

Despite directions being given for trial in 12 September 1996, no step was taken to set this case down for trial and it was not until after a show cause letter was issued that it was done on 3 July 1997.

The trial was then held on 29, 30 September and 1 & 2 October. I will now proceed to set out the claims of the plaintiff

The Claims

The plaintiff's claims are based on a breach of contract and on a conspiracy to defraud.

As for the breach of contract claim, it is worded is in this manner;

6. The 1st Defendant acting through the 2nd Defendant and/or the 4th Defendant on or about 10 June 1993 purported to sell and deliver to the Plaintiff a consignment of special timber expressly described as "Rosewood" for the total sum of USD181,183.08 as per the 1st Defendant's Invoice No 93- 06/1 dated 10 June 1993 (hereinafter referred to as "the said Timber"). 7. The said Timber was shipped by the 1st Defendant to the Plaintiff on board the vessel "Kris Terasek" from the port of loading at Tawau and to be discharged at the port of Inchon at Korea vide a Bill of Lading No TWUINC 001 dated 10 June 1993 issued by Malaysian International Shipping Corporation Berhad as the carrier of the said Timber 8. The said Timber was fully paid for by the plaintiff vide documentary credit No M1692305NU00107 issued by the Plaintiffs' banker, Cho-Hung Bank Ltd., Do Hwa Dong branch of Seoul, Korea with the 1st Defendant as the beneficiary.

The advising bank was Hongkong Bank, Tawau branch, Sabah, Malaysia. 9. The documents required from the 1st Defendant to claim payment for the Timber supplied by them to the Plaintiff pursuant to the said documentary credit under paragraph 8 hereof includes, inter alia:-

(a) signed commercial invoice in quintuplicate; (b) full set of clean on board ocean bills of lading made out to the order of Cho Hung Bank Ltd marked "Freight Prepaid" and "Notify Accountee"; (c) "Certificate of Origin" in duplicate; and (d) Inspection Certificate by Y H Kim and H K Kim 10. The said contract as evidenced by the said Invoice and the documentary credit was clearly a contract for the sale of the said Timber by description.

In the premises, it was an expressed and/or implied condition of the said contract or alternatively the 1st and the 2nd Defendants (and/or the 4th Defendant) thereby warranted, that the said Timber should correspond with the said description of "Rosewood", and should be merchantable under the said description.

Save for a sentence in para. 10, the statement of claim adverted to a contract being entered into between the 1st defendant and the plaintiff.

The sentence I was referring to made reference to a warranty by the 1st defendant as well as by the 2nd defendant.

But Mr Victor Chong, learned counsel for the plaintiff, made no mention of that warranty by the 2nd defendant and I, therefore, will take it that there is no claim against the 2nd defendant based on any breach of warranty or any breach of contract.

The claim for conspiracy to defraud is worded this way:

21. Further and/or alternatively, the 1st Defendant acting through the 2nd Defendant (and/or the 4th Defendant) together with the 2nd to 6th Defendants and two (2) other Korean nationals namely, Young Hwan Kim (Y.H. Kim) and Hong Koon Kim (H.K. Kim) wrongfully and maliciously conspired and combined amongst themselves to defraud the Plaintiff of the sum of USD181,183.08 by fraudulently pretending to supply "rosewood" to the Plaintif