Bestech Development Limited v. Fu Wai Loi and Another

CACV000121M/1992

IN THE COURT OF APPEAL

(On Appeal from H.C. Action No. A 1528/90)

BETWEEN

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Coram: Hon. Litton, J.A., Godfrey & Kaplan, JJ.

Date of Hearing: 12 November 1992

Date of Judgment: 12 November 1992

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C O R R I G E N D U M

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The attached edited version of the judgment delivered by the Honourable Mr. Justice Godfrey replaces the previous unsigned version already circulated.

Godfrey, J.,

I agree that this appeal must be dismissed, although the order of the judge below must be varied as indicated by Litton, J.A.

Litton, J.A. has sets out the facts of this case and I need not repeat them. On those facts, the question for decision on the appeal (as counsel for the appellant accepted) is this: Is the purchaser entitled to be credited, against his liability to the vendor for the deficiency on the resale, with the sums received by the vendor which, but for the purchaser's breach of contract in failing to complete the original sale, the vendor would not have received? The vendor's claim for the deficiency on the resale being a claim for liquidated damages, the answer is that the purchaser is not so entitled.

The law implements the intention of the parties in the case of liquidated damages by holding the plaintiff entitled to recover such damages without requiring proof of the actual damage and irrespective of the amount, if payable, of the actual damage. In most cases where the plaintiff has recovered liquidated damages such damages have been greater than the actual, or at least the provable, damage. Such damages are, nevertheless, not reduced to the figure representing the loss which the plaintiff has actually suffered.

It follows that, as My Lord has said, this appeal was misconceived and must be dismissed.