Cheung Shun-choi v. George Geor Kee Wong

HCA003004/1977

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Coram: Zimmern J.

Date of Judgment: 14th July, 1978.

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JUDGMENT

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1. In this case the plaintiff claims against the defendant originally for specific performance of a contract for the sale and purchase of a brand new taxi car together with its franchise and licence at a price of $216,000, the plaintiff being the buyer. He claims in the alternative damages for breach of contract and leave has been granted to the plaintiff to amend the Statement of Calim by including a prayer for the return of $20,000 paid by the plaintiff to the defendant on the 13th of July, 1976.

2. The defendant admits that there was such a contract but where they differ is in respect of delivery.

3. The plaintiff says the contract was entered into on the 13th of July and that the defendant would deliver the car to him against payment of the balance of the price within one month from the date of the contract, and failed to do so.

4. The defendant says "No". The defendant says the agreement was that the car was to be delivered seven days from the 13th of July and it was the duty of the plaintiff to order the car, a brand new car, from the motor dealer, and once that had been done the plaintiff would pay out of the price of $216,000, $30,000 to the dealer for the car and transfer from his old taxi AX9491 the franchise and licence to the plaintiff.

5. Now, as regards the claims of the plaintiff. The plaintiff failed to complete specific performance has been abandoned and quite rightly so. It never had a hope of succeeding on the facts of this case. As for the alternative claim for damages for breach of contract, there is no evidence whatsoever that if the defendant were in default the plaintiff had in fact suffered any damage and he would be entitled to nominal damages at best. Lastly, the return of the deposit of $20,000, this rests entirely on the Court's finding as to who was in breach. If the plaintiff were in breach - I think it is clear on the evidence of both sides that the $20,000 was paid as a deposit being a security for the performance of the contract by the plaintiff - through his own default in completing, I think on the facts of this case and on well known authorities the defendant is entitled to forfeit the deposit as claimed by his Defence. If it were the defendant who was in default, then clearly the plaintiff is entitled to the return of the deposit.

6. As Mr. Suffiad has rightly said, there is very little documentary evidence, in support of the case of either side. I have seen and heard the plaintiff in the witness-box, as I have also the defendant and I far prefer the evidence of the defendant. Mr. Suffiad argues that the defendant's version of the terms of delivery and so forth were laborious. I do not think so. Besides preferring the evidence of the defendant, I think, and I so find, his version far more probable than the plaintiff's. The buying and selling of taxis, according to the evidence, is really spot business, that is you buy and sell on the spot, delivery and payment within a day or so.

7. In this case the defendant says the plaintiff was given seven days because at the time the agreement was made he, the plaintiff, had not ordered a brand new car as yet. That I accept.

8. The plaintiff's case of one month delivery without any reason whatsoever, seems most improbable to me. He wanted a third taxi for his fleet. Why wait a month? There is no evidence that a brand new taxi was not available from the market and I am unable to accept his evidence that for a year he pressed the defendant for delivery without success and that was why he only issued his writ a year after the date of the agreement.

9. For the reasons I have given there will be judgment with costs to the defendant on the claim.

10. As regards the Counterclaim, the defendant has claimed forfeiture of the deposit of $20,000 as well as damages for breach of contract. I have found that the plaintiff was in breach but I am unable to accept that the difference of the resale price by the defendant of $161,000 on the 16th of August after deducting from the sale price between the plaintiff and the defendant as being the correct measure of damage. This is not a case of anticipatory breach. Having found that the plaintiff was bound to take delivery and pay on the 20th of July, the defendant knew on the 20th of July, according to his evidence, that the market was coming down pursuant to the Government's announcement of new licences for three hundred new taxis. Therefore he was bound to mitigate his damages as soon as possible.

11. I accept the resale price of $160,000 on the 16th of August but there is no evidence as to what was the price on the 20th of July or within a few days thereafter.

12. For the defendant to succeed on damages he must prove a sum which exceeds $20,000 because he is bound to take the $20,000 forfeited into account.

13. The defendant fails in his claim for damages in that he has failed to prove damages in excess of $20,000 but he succeeds in his claim for declaration that the defendant is entitled to forfeiture of the deposit of $20,000 and I so declare, and there will be judgment with costs for the defendant on his Counterclaim, accordingly.

Representation:

A.R. Suffiad (Raymond Tang & Co.) for plaintiff.

A. Hoo and B.K. Ho (Hampton, Winter & Glynn) for defendant.