Sung Tsang Tung v. Maker Internation Enterprises and Another
Read the full judgment text of CACV 38/1977 on BabelCite. This Court of Appeal judgment.
1. This action has had a truly lamentable history. The cause of action alleged was a straight forward breach of a contract of employment by the employers. Nevertheless we are now faced with the position that two judgments have been entered in the action in favour of the Plaintiff and that there have been separate hearings before three different registrars for the assessment of damages. The first judgment has never been formally set aside but seems to have been treated as of no effect because the
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CACV000038/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 12th May 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This action has had a truly lamentable history. The cause of action alleged was a straight forward breach of a contract of employment by the employers. Nevertheless we are now faced with the position that two judgments have been entered in the action in favour of the Plaintiff and that there have been separate hearings before three different registrars for the assessment of damages. The first judgment has never been formally set aside but seems to have been treated as of no effect because the writ was twice amended after that judgment had been entered. An application was made to set aside the second judgment, which had been entered in default of defence to the amended Statement of Claim, and an order was made setting it aside on conditions which were not fulfilled. An appeal against the conditional order was dismissed. The present appeal is against an assessment of damages at $1 made by Mr. Registrar Cameron. 2. The learned registrar not unnaturally felt considerable embarrassment on ascertaining how the matter had reached him. He said:
He might well have taken a different view and insisted that the position be regularised. It does not even appear from the papers before us whether the summons before the registrar was the same as that which was before the other registrars. If it was, it was taken out before the second judgment was entered. However, like Mr. Registrar Cameron we have been disposed to deal with the assessment of damages on its merits. The Defendants have maintained both before us and in the court below that they are not liable to pay damages at all, but that is not open to them at this stage. Mr. Lau, the partner who has represented the Defendants before us, asserts that the writ was originally served on a partner who did nothing about it and who kept the other partners in ignorance of the proceedings. That might account for the first default judgment, but the appearance which was subsequently entered was entered by Mr. Lau himself. The Defendants have only themselves to blame for the fact that the issue of liability has never been tried upon the merits. 3. The damages claimed fell under two heads of special damages and one of general damages: (1) reimbursement of travelling expenses and hotel expenses, (2) loss of salary and (3) loss of a share in the profits or prospective profits of the Defendants' business. Under Head (3) the registrar awarded $1 and under Heads (1) and (2) he made no award. It was common ground that the Defendants never established their business, so that no profit was earned. The Plaintiff adduced no evidence of prospective profits and accordingly it seems to me that the registrar was right to award only nominal damages for breach of contract. I would not disturb that part of his assessment. 4. The reason why the registrar made no award under Head (2) and for travelling expenses under Head (1) was that on the evidence adduced before him the Plaintiff had not proved the liability of the Defendants to pay either the travelling expenses or the salary. With respect to him that was inconsistent with his own earlier statement that liability was not in dispute, judgment having been entered in default. Under Head (1) the only question he had to decide was whether the Plaintiff had spent the whole or part of the sum of US$571.80 on a return air passage from the United States of America to Hong Kong. On the papers before us it does not appear that the Plaintiff established that he had reasonably incurred hotel expenses in the sum of US$200 claimed under Head (1), or any part thereof, as a result of the Defendants' breach of contract. Prima facie the Defendants were liable to pay a salary of US$2,000 a month for the duration of the contract, but that was, of course, subject to the duty of the Plaintiff to mitigate his loss. Having decided that the Defendants were not liable to pay any salary the registrar did not make a finding on the issue of mitigation. 5. I agree that the appeal should be allowed in part and the case remitted to the registrar, first to make the necessary findings as to travelling expenses incurred and as to the opportunity of the Plaintiff to mitigate his loss of salary and then to assess the damages accordingly. The award of $1 as general damages should stand. 12th May 1978. Representation: |