1 
Judgment:

2 Coram: Judith Prakash JC

3 Cur Adv Vult

4 JUDGMENT

5 Background

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8 On 24 August 1993, the respondents sent the appellants a

facsimile message referring to an earlier discussion and asking

the appellants to send them a revised invoice for the goods at

$580 per piece or to arrange to take the goods back. The

appellants replied that, as explained, they were not in a

position to revise their price and they asked the respondents to

make payment of the full amount. The very next day, the

respondents sent the appellants a further letter stating that on

checking the stocks they were shocked to learn that all the

cartons had been repacked and that the serial numbers had been

removed. They stated that "since original packing and serial

numbers is a mandatory pre-requisite < sic > for all our

purchases we are unable to accept this consignment". They

advised the appellants to treat the purchase order as cancelled

and said that they were making arrangements to return the goods.

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15 The appeal

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17 I will consider these issues in turn.

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21 The above definition is a loose codification of several

decades of judicial consideration of the term "merchantable

quality". As has been judicially recognised, it has been

"left in the widest possible terms in order to cater for the

great variety of situations which may occur .... < and >

any attempt to forge some exhaustive, positive and specific

definition of such a term, applicable in all cases, would soon be

put to mockery by some new undreamt of set of

circumstances". See Bernstein v Pamson Motors (Golders

Green) Ltd < 1987 > 2 All ER 220 per Rougier J at 222.

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24 It was only in cross-examination that Mr Kapur alleged that

the Middle East buyer had refused the goods because of the

missing serial numbers. Although the respondents' counsel had

subjected Mr Yeo to searching cross-examination on the issue of

the desirability of serial numbers with the apparent intention of

establishing that these were needed for purposes of identifying a

specific television set in order to invoke the manufacturers'

guarantee, this point was not mentioned at all by Mr Kapur. In

fact, it would have been quite silly for him to do so as the

goods in question were clearly being sold without the benefit of

any guarantee. He might have said that the serial number would

help prove the authenticity of the goods. But this was not

alleged. Instead, Mr Kapur freely admitted that the goods were

authentic thus indicating that the presence of a serial number

was not vital for proving authenticity. Further, he did not give

any reason whatsoever why the buyer in the Middle East was

insistent on the existence of serial numbers. A possible

explanation like having to declare serial numbers to the customs

of the importing country in order to comply with licence

requirements was not even suggested. Mr Kapur produced no

evidence at all that there was any firm contract for the sale of

the goods to a specific customer in the Middle East. Not only

were there no documents in support of this, but when he was asked

when the respondents were scheduled to deliver the goods to the

customer concerned, his reply was "no specific date"

which was quite inconsistent with his assertion in his affidavit

of evidence-in-chief that "sometime in June 1993, the <

respondents > required 320 television sets for export to a

customer in the Middle East". No independent evidence was

adduced to establish the respondents' allegation that the removal

of the serial numbers from the cartons and the sets themselves

made the sets unsaleable and unexportable except at a reduced

price. It was significant that Mr Yeo had no difficulty reselling

the sets.

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31 Conclusion

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33 (a) for $14,400 under para 17(a) of their statement of claim;

34 (b) for $501.50 under para 17(c);

35 (c) for $135 under para 17(d);

36 (d) for $100 under para 17(e).

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