Fillcon Ltd v. Kitty Yeung Mei Yee t/a Longman Enterprise

HCA005982/1983

1983 No. 5982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Clay in Chambers

Date of Hearing: 20 December 1983

Date of delivery: 20 March 1984

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ASSESSMENT OF DAMAGES

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1. This Assessment is concerned with damages payable by the Defendant in respect of breach of an agreement by the Defendant to transfer on a permanent basis certain textile export quotes. The agreement pleaded in the Statement of Claim was for the Defendant to transfer 500 dozen of the quota within 2 weeks from the last day of acceptance of the preliminary allocation of quota by the Trade Industry & Customs Department and for the balance of 500 dozen to be transferred within 2 weeks from the last day of acceptance of final allocation of quota by the Department. The Defendant transferred the first 500 dozen at the end of December 1982 but thereafter failed to transfer the balance of 500 dozen.

2. The writ in this matter was issued on 17th May 1983, a defence was filed on 14th June 1983 and interlocutory judgment for the Plaintiff for damages to be assessed was entered on 8th November 1983.

3. The Plaintiff called Miss Hung Wai-lin, a secretary, to give evidence on its behalf. She told me that to comply with the terms of the contract the Defendant should have delivered the remaining 500 dozen between the end of March and the beginning of April 1983, whatever that may mean. I presume, although I was not specifically told it, that the date of acceptance of final allocation of quota by the Trade Industry & Customs Department was therefore some time in the middle of March. Miss Hung then went on to tell me that the Plaintiff purchased 300 dozen temporary quota on 6 September 1983 at $138 per dozen and a further 200 dozen temporary quota on 7th October 1983 at $198 per dozen. She told me that they were purchased in 3 separate amounts as the full 500 dozen were not available. She then purchased on 11th November 1983 500 dozen permanent quota at a price of $250 per dozen.

4. Miss Loh who appeared for the Defendant criticized the evidence of Miss Hung on several grounds. Firstly on the ground that Miss Hung was only a secretary in the Plaintiff and the buying and selling of quota was not part of her duties. Secondly her evidence as to the buying and selling of the quotas in this case was vague and unsatisfactory and what evidence there was related to matters not directly within her own knowledge. Miss Loh stressed the duty of the Plaintiff to mitigate its loss and argued that the evidence of Miss Hung on this matter was almost entirely hearsay.

5. I do not accept these criticisms. Firstly it is plain from her evidence that Miss Hung was concerned directly with the buying and selling of quota in this matter for the Plaintiff and so far as matters within her own knowledge are concerned I accept her evidence. Secondly Miss Loh's criticisms relating to mitigation of loss are of no importance in view of my decision which appears later as to the proper date at which to assess damages.

6. I turn now to deal with the point raised by Miss Loh as to what is the proper date at which to assess damages. She has argued that damages should be assessed at or shortly after the date of Breach by the Defendant, at a time when, Miss Hung, admitted the cost of purchasing permanent quota was low. The Plaintiff has cited to me the case of Radford v De Froberville 1977 1 WIR page 1262. The following passages in the judgment of Oliver J. at pages 1286 and 1287 are in my view important.

"The question then it seems to me, comes down to one of the reasonableness of the steps actually taken by the Plaintiff, and, in my judgment, the proper approach is to assess the damage at the date of the hearing unless it can be said that the Plaintiff ought reasonably to have mitigated by seeking an alternative performance at an earlier date."

and

"Once proceedings have been commenced and are defended I do not think that the Defendant can complain that it is unreasonable for the Plaintiff to delay carrying out the work by himself before damages have been assessed, more particularly where his right to any damages at all is being contested for he may never recoup the loss."

7. In this case a defence was filed on behalf of the Defendant and in my view it was proper for the Plaintiff to have taken no steps to purchase permanent quota until interlocutory judgment was entered for the Plaintiff on the hearing of their summons under Order 18 rule 19 on 8th November 1983. I further regard it as reasonable for the Plaintiff to have purchased temporary quota in September and October for the order referred to by Miss Hung in her evidence.

8. I accept Miss Hung's evidence as the cost of purchasing both the temporary and permanent quota, the Plaintiff's damages are therefore as follows:-

9. I award interest to the Plaintiff at the rate of 8% per annum from the date of writ to judgment and costs to the Plaintiff.

Representation:

Mr L. Ho of Lau, Wong & Chan for the Plaintiff

Ms E. Loh of Loh & Co for the Defendant