Read the full judgment text of HCCT 17/2010 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 4 July 2014 before Mr Recorder Shieh SC.
Contract Law – Construction and Supply Contract – Existence of Contract – Credibility of Witnesses and Contemporaneous Documents – Authority to Bind – Oral versus Written Agreements – Counter-offers – Compliance with Contractual Conditions – Notification – Liquidated Damages Clause – Damages Quantum – Expert Evidence. The plaintiff, an approved supplier of bituminous pavement materials, alleged a contract with defendant, a main contractor, for exclusive supply under a government roadworks contract. Defendant denied contract existence, asserting supply was via a subcontractor Fook Lucky under a separate preliminary agreement. The court analysed competing witness testimony, documentary evidence including emails and draft agreements, and commercial context. Findings included rejection of plaintiff’s key witness evidence due to inconsistencies and lack of documentary support. The court found no valid contract had been proved and that purported faxing of the agreement was not established. Defendant’s denials were preferred, and the complex negotiations involving third parties were found inconsistent with plaintiff’s alleged contract. Howard Kong lacked authority to bind defendant. Even if contract existed, the liquidated damages clause was only applicable during subsistence, not post-termination. Quantum of loss was assessed on actual deliveries, rejecting plaintiff’s speculative estimates. Plaintiff’s claim was dismissed with costs to defendant. Counsel on both sides commended.
Legal issues: Existence of contract between plaintiff and defendant · Authority of Howard Kong to bind defendant · Status and effect of the Quotation as part of the contract · Compliance with SCC 6 and notification to Highways Department · Validity and applicability of liquidated damages clause · Assessment of actual loss and damage quantum
Outcome: Plaintiff’s claim dismissed with costs to defendant on a nisi basis to be taxed if not agreed.
Cites 2 cases