William Artists International Ltd. v. Chevalier (Hong Kong) Ltd.

1994, No.A10706

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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The action

1. The Plaintiff is a company that is engaged, inter alia, in the supply of furniture. It is the agent for an Italian manufacturer called Tecno and sells its products in Hong Kong. The Defendant is a limited company which placed an order for a walnut conference table. The Plaintiff's claim is for the balance of the purchase price for this conference table, namely $150,000.

2. The contract between the parties relating to the conference table was made on or about 11 May 1994, partly in writing and partly orally. It is common ground that on 11 May 1994, the Defendant paid 50% of the cost of the table to the Plaintiff by way of deposit and part payment. It was presented with and approved a set of drawings in respect of the table on 31 May 1994. The table was delivered to and assembled and installed in the Defendant's office on or about 13 and 14 September 1994. It was thereafter rejected by the Defendant. It is the colour of the conference table and nothing else that is the subject-matter of the dispute between the parties. The issue is whether under the contract, the conference table to be delivered is to be of a particular colour or range of colours.

3. The Plaintiff's case as pleaded is that the Defendant was expressly warned both by letter dated 9 May 1994 and at a meeting the following day that "the colour of the wood ... was subject to certain variations or deviations in actual production" and that the Plaintiff made no undertaking to supply a conference table that had to comply with any definite or particular colour specification.

4. The Defendant's case is that it was an implied term that the wood colour of this table was to correspond to that of the Tecno walnut wood sample supplied to the Defendant, or alternatively with that of the Tecno desktop finished in walnut which the Defendant at the Plaintiff's invitation inspected prior to the order being placed or of a colour that would tally with the overall colour scheme of the boardroom which the Plaintiff knew was being refurbished. In the alternative, it was pleaded that the Plaintiff represented to the Defendant that the colour of the table would correspond to that of the sample supplied and that the representation was intended to be and was in fact relied on by the Defendant in entering into the contract.

The background

5. In late 1993/early 1994, the Defendant had its offices refurbished and Chow's Architects Limited were retained by the Defendant for the renovation. The director in charge of the project and the main designer was one Wailee Chow, the daughter of the Chairman of the Defendant. The conference table in question was to be placed in the main conference room or boardroom on the 23rd floor.

6. Between 22 February 1994 and 7 May 1994, information and prices relating to different models and types of conference tables were sent from the Plaintiff to Chow's Architects. The last communication with Chow's Architects prior to the placing of the order was dated 7 May 1994 which was a quotation for a specially made Tecno SP/T333 700 Blk Matt conference table. This was the table that was eventually ordered albeit in a different wood finishing.

7. Miss Chow gave evidence on the Defendant's behalf. Although she was not present at the meeting when the desk was inspected, nor was she directly involved in the actual placing of the order, her evidence is relevant as she was the director in charge of the project and involved in selecting and recommending to the Defendant the conference table to be purchased. She had designed the overall colour scheme of the boardroom : woodwork in the room consisted of the doors, shelving and of strips of wood in between panels of white fabric. The timber used was mahogany and an African wood veneer called dukka.

8. It is Miss Chow's evidence that she made a preliminary recommendation to the Defendant, based on a pamphlet and colour chart obtained from Tecno, that a Tecno walnut conference table would be the right colour for the boardroom.

9. So far as it was put to Miss Chow that Mr Chan and Mr Wong were in contact with the Plaintiff since March, the correspondence shows otherwise. Up to and including 7 May, it was Raymond Lau of Chow's Architects who was corresponding with the Plaintiff and not anyone from the Defendant's office. Miss Chow's evidence is that she made her recommendation prior to direct contact being made between the Plaintiff and the Defendant. If direct contact was not made until 9 May or thereabouts, it would follow that Miss Chow's recommendation was made in the early part of May. It is also apparent from the correspondence that on 22 February, "a picture" showing inter alia the Model No.T333 was sent to Chow's Architects. It is unclear whether this is the pamphlet and colour chart referred to in Miss Chow's evidence but it would appear to be something different from Tecno's brochure which is Exhibit D4. A "brochure" is mentioned in manuscript annotations to a fax transmission of 25 March 1994 from the Plaintiff to Chow's Architect.

10. The final recommendation was made only after the Defendant had obtained from the Plaintiff a wood sample of Tecno walnut. Miss Chow said that she personally saw a wood sample before the order was placed. Miss Chow was firm that she would never let a client place an order before obtaining and seeing a wood sample. She said she also told Mr Tin Chan of the Defendant that the colour of the wood should match that of the window sill on the 23rd floor.

11. Although it is Miss Chow's evidence that there was also a sales person that she took up to the site to show the woodwork required and that her assistant was subsequently told that it would match, she was unable to give any more information regarding the sales person other than that he was a man. Given the evidence of Mary Chan, the Group Administration and Marketing Director of the Plaintiff that all the relevant salestaff were women, and the lack of identification and corroboration for the existence of the sales person described by Miss Chow, this aspect of Miss Chow's evidence is to be disregarded. But it does not follow that Miss Chow's evidence generally is to be rejected. I am satisfied that her instructions to the Defendant was to purchase a Tecno T333/SP walnut conference table based, in part, on the walnut wood sample. I further accept that she told Mr Chan that the colour was to be that of the bay window sill.

The pre-inspection telephone discussion

12. The first direct written contact between the Plaintiff and the Defendant did not take place until 9 May 1994. This was a letter from Lourdes Poon, the personal assistant to the Chairman of the Plaintiff to John Wong and Tin Chan of the Defendant, referring to an earlier telephone conversation between "you" i.e. Mr Wong and/or Mr Chan and Mr Chui, the Chairman of the Plaintiff. Two wood samples, respectively of walnut and rosewood were enclosed with the letter. These were produced at the trial as Exhibits D1 and D2. The letter was in these terms :

"... These samples are just for your reference and it is subject to certain deviations in actual production as material will be cut from tree stems that colour and wood pattern would be beyond our control. We have a desk finished in walnut wood at our office and would welcome you to come over to have a look at any time at your convenience. Kindly please confirm with us your decision on the wood finishing of the conference table top so that we can confirm the order with the factory in turn."

A copy of this letter was sent to Chow's Architects.

13. It is the Defendant's case that the telephone conversation took place between Mr Tin Chan and Mr Chui and that Mr Chan expressed an interest in purchasing a T333 conference table of walnut colour. During this telephone conversation, Mr Chan also told Mr Chui that the conference table was to match the rest of the interior decoration of the conference room. Mr Chan asked to be sent a sample and inquired if the Plaintiff had clients who had the same kind of table which could be inspected. He was told that there was a table not of the same shape but of the same colour and wood in the Plaintiff's warehouse and was invited to view it.

14. In cross-examination, Mr Chui denied that such a telephone conversation ever took place. In his evidence-in-chief, however, he did admit that a telephone conversation did take place prior to the meeting but that it was with Mr John Wong. According to Mr Chui, nothing firm was discussed except that the Defendant apparently asked for a better price and also if there was existing furniture or stock that could be inspected. An appointment was duly made for an inspection.

The inspection on 10 May 1994

15. Prior to the inspection, Mr Chan received two wood samples, namely Exhibits D1 and D2 although it is his evidence that he had only asked for a walnut wood sample. It is common ground that a meeting and inspection occurred at the Plaintiff's office and warehouse attended by Mr Wong and Mr Chan of the Defendant and Mr Chui and Miss Poon of the Plaintiff on 10 May 1994. It is also common ground that Mr Wong and Mr Chan had with them the wood samples as well as the Tecno brochure.

(a) Mr Chui's account

16. According to Mr Chui, Mr Wong remarked that the walnut sample and the desk top were not exactly the same in colour. Mr Chui explained that : (1) what Mr Wong had was a small sample and the desk was a large piece; (2) even if it is the same wood type, the colour could be different because the trees from which they come are different. He said that a difference in texture and grain could be expected. It is Mr Chui's evidence that Mr Wong and Mr Chan had no firm idea as regards colour. He said they did not know what they really wanted and only informed him what kind of wood they preferred, which was walnut.

17. Mr Chui denied that either Mr Wong or Mr Chan ever asked for a table that was the colour of the walnut wood sample. It is his evidence that they never specified the colour and certainly "did not specify it to a firm or against any standard". Nevertheless, in cross-examination, Mr Chui admitted that the Defendant had a right to choose the colour but had waived it and that it was decided that nothing would be said about colour and that it would be left to the manufacturer when it was actually making the table. When asked whether this meant that the choice of colour was left to the manufacturer, Mr Chui gave differing answers.

18. Mr Chui acknowledged that Mr Wong asked Mr Chan in his (Mr Chui's) presence about the colour of the wood in the conference room. Mr Chui then said to Mr Wong "I'm showing you a kind of wood, the colour that comes with this kind of wood is the natural colour of wood. But if you want the table to match exactly the wood that is used in existing furnishings you are asking for the impossible." He apparently also informed them that if they insisted on talking about colour, he would not be prepared to take their order. Thereafter, the discussion focused on the price and nothing further was said about colour.

19. Miss Poon's evidence, in general, supported Mr Chui's account insofar as his response was that the colour would be determined by the manufacturer and that the Defendant would have to accept the colour as delivered from the factory. But it differed about the "Remarks" clause in the quotation : whilst Mr Chui's evidence in cross-examination was that this was not a standard term used by the Plaintiff but was inserted because this customer through its architect had thought about various choices "to match the interior decoration", Miss Poon's evidence was that this was a standard provision to be found in the Plaintiff's quotations.

(b) Mr Chan's account

20. At the relevant time, Mr Chan was the Defendant's administration manager. During the renovation of the Defendant's premises, he was, inter alia, responsible for purchasing furniture. Mr Chan confirmed that it was Chow's Architect who formally made the proposal for the purchase of the Tecno walnut conference table and that the instructions he received from Miss Chow was to purchase a walnut colour table. He was shown a picture of a conference table identical to that in the centre spread of the brochure by Miss Chow which is Exhibit D4 and he understood that that was what was to be purchased. It is Mr Chan's evidence that prior to the inspection, he already had an idea of the colour of walnut and that if walnut was to be purchased, the Defendant would be getting a dark colour. He had confirmed with Miss Chow that the colour in question was like that of the bay window sill on the 23rd floor. According to Mr Chan, the purpose was to inspect "the real thing as to the colour and finishing".

21. At the inspection, he took out the walnut wood sample and noted that the desktop and the wood sample were different in colour but after inspecting the desktop he told Mr Chui that it was the colour that he wanted. Mr Chan said that although he was informed that there would be a variation in colour given that different pieces of wood would have different degrees of colour absorption and that the colour would differ from one pile of wood to another, he was given to understand by Mr Chui that the colour would be in the range between the sample and the desktop or not very different from those two colours. In his view, such a colour would tally with the colour of the wood used in the boardroom. He therefore placed the order and asked the Plaintiff to prepare a written contract.

22. Mr Chan agreed that Mr Chui did say that as it was not going to be a printing process, he should not expect identical results and that Mr Chui had put it, jokingly, that if the Defendant was after identical colours, he would rather not take the order. Nevertheless Mr Chan said he was given the impression that Mr Chui had given him a range of shades of colour of the finished product.

The site visit

23. A site inspection was carried out at the end of the hearing. Having seen the colour of the desktop and compared it to the Tecno walnut wood sample (Ex.D1), I have no hesitation in saying that the photographs (Ex.P1 A-D) do not depict or convey the real colour of the desktop which is not of the bright orange/reddish hue seen in the photographs. Rather, if one had to compare the colour of the wood sample, the desktop and the table that was delivered, the wood sample and the desktop be at one end of the spectrum and the table that was delivered, the other. Whilst it is possible to describe the colour of the table actually delivered as "light", that description is plainly inapposite when it comes to the colour of either the walnut wood sample or the desktop.

Expert evidence

24. Mr Garrison Rousseau who was formerly the managing director of Bollore and Company since reorganised and renamed as Bollore Furniture Limited and G. Lowell Limited and now a director of those companies gave expert evidence on behalf of the Defendant. His companies manufacture high quality furniture for export and import wood and veneer for furniture making. He also assists in design and decorating projects involving, inter alia, the use of Italian furniture and is consultant to the Italian Trade Commission on the appointment of agents for Italian furniture manufacturers. As an interior designer, it forms a major part of his duties, matching wall panelling and furniture.

25. It is Mr Rousseau's evidence that in the furniture industry, the term "walnut" is associated with and generically denotes mid to dark coloured wood, that is to say American or English walnut unless a specific species is asked for. Mr Rousseau opined that the Tecno walnut wood sample (Ex.D1) is not the European or Circassian variety of European walnut which is normally lighter in colour than the American or English variety. It is also Mr Rousseau's evidence that in the absence of any express reference to colour, it would be natural to assume that the industry standard of walnut colour was meant in the quotation. In his opinion, the table delivered is not of the colour of walnut as it is generally understood in the furniture industry. In fact, Mr Rousseau and his colleagues who had inspected the table initially believed it to be of cherry wood.

26. Although the Plaintiff put in an expert's report, it is of little assistance. Mr Corti's "expertise" is not apparent from the report. If it is true as stated in that report that "Tecno uses for all its executive furniture the NOCE NAZIONALE unless a different choice is expressly requested by the Client", it is not readily explicable why the Tecno walnut wood sample was not of that variety. Nor, seemingly, the desktop that was inspected.

The written quotation

27. In addition to the letter of 9 May in which were enclosed the wood sample of walnut, at the request of Mr Wong and Mr Chan after the inspection on 10 May 1994, the Plaintiff provided a written quotation to the Defendant for the supply of :

"TECNO SP/T333 700 Walnut

Special-made conference table ... walnut table tops and polished aluminium bases ...

Remarks

Price valid for 30 days and inclusive of installation. All finishing, detailing, wood colouring, grain pattern and specifications according to manufacturer's production and standard."

This quotation was signed by both parties.

28. The Plaintiff made much of the fact that this quotation did not contain any express reference to colour. But where the same wood denotes both a type of wood and a colour, the absence of an express reference has little significance; I accept Mr Rousseau's evidence that one would assume that the industry standard was meant. Moreover since it is common ground that the contract was partly in writing and partly oral, the absence of a reference in writing is plainly not fatal.

Was the Plaintiff contractually bound to deliver a table of a particular colour or range of colours?

29. I have little difficulty in coming to the conclusion that the Plaintiff was contractually bound to deliver a conference table that was of the colour within the range of the Tecno walnut wood sample and the desktop inspected on 10 May 1994. I do so for a number of reasons but principally because I find Mr Chui's evidence unsatisfactory.

30. First, it is Mr Chui's evidence that the Plaintiff made no commitment or undertaking to deliver a table of any particular colour so long as the wood was of walnut. Yet, he repeatedly denied that it would be a matter of luck whether, in those circumstances, the Defendant would get the colour that it wanted. Second, when asked several times whether the Defendant could receive a table of as light a colour as the witness stand or of as dark a colour as the walnut wood sample, Mr Chui was evasive and refrained from giving a direct answer to this simple question. He attempted to avoid the issue by saying that no fair or good comparison could be made because the wood sample was too small and that there would be a different result and a very different impression if it was a large piece as big as a table. That, of course, was not an answer and Mr Chui knew it. Third, although Mr Chui initially said that he was not aware that the table would have to match the rest of the conference room colour theme, that apparently was what prompted Mr Chui to insert the "Remarks" clause (which, according to Mr Chui, was not the Plaintiff's standard clause) into the quotations. As noted above, Miss Poon's evidence was otherwise. Fourth, it is Mr Chui's evidence that the Defendant never specified the colour because Mr Wong and Mr Chan could not decide on the colour that they preferred,

"Whether it was to be a light shade or a dark hue, so my suggestion to them was that basically leave it to the manufacturer because it would be the manufacturer who would have the choice of the particular stock pile of wood but they would be getting a colour which is the natural colour of the wood of a table, so that was a conclusion, they were going to get the natural colour of that kind of wood."

According to Mr Chui, this was the "solution" he proposed to resolve the question of colour, given Mr Chan and Mr Wong's indecision. Nevertheless, when asked whether this meant that the choice of colour was left to the manufacturer, Mr Chui was ambivalent. Fifth, his reasons as to why the Plaintiff could not take up the order if the purchaser was to be very particular about the colour - principally because he had no control over the manufacturer - were unconvincing. There is simply no evidence that it was beyond the capabilities of Tecno to supply a walnut table of a hue similar to that of the desktop inspected. In fact, the fax transmission dated 18 January 1995 from Tecno to the Defendant, if anything, suggests that it is possible. Indeed Mr Rousseau's evidence on this point confirms that colour was within the manufacturer's control.

31. I do not accept Mr Chui's evidence that the customer never specified a colour, given the circumstances in which the order came to be placed. It is common ground that the 23rd floor of the Defendant's offices were being refurbished and that the conference table was to be placed in its main boardroom. I accept the Defendant's evidence that Mr Chan's brief was to place an order for a walnut conference table and that these instructions were given after a Tecno walnut wood sample had been obtained. Apart from the wood sample, the Defendant had been provided with a Tecno brochure which in its centre spread depicts the conference table that was being ordered. Although no evidence was adduced as to the type of wood of the conference table shown in the brochure, the wood used was of a dark, as opposed to a light, variety. I also accept that Mr Chan confirmed with Miss Chow his perception of the colour furniture. Then followed the inspection of the desktop before the placing of the order. As noted above, the walnut desktop shown to the Defendant was again of a dark, as opposed to a light, variety of walnut.

32. Given this background, I do not accept that Mr Chan and Mr Wong, respectively the administration manager and a senior executive officer of the Defendant had no brief as to the colour of the table to be ordered. The Defendant was spending a sizeable sum of money, namely $300,000, on a conference table, quite apart from the cost of refurbishing its offices. I find it inherently unlikely that Mr Chan and Mr Wong were indecisive about the colour they wanted at the inspection.

33. It was also suggested that Mr Chan is not a reliable witness because, contrary to his evidence, at the time of the telephone conversation prior to the inspection, that the type of wood had been decided on is not borne out by the Plaintiff's letter to the Defendant of 9 May 1994. The particular sentence reads :

"Kindly please confirm with us your decision on the wood finishing of the conference table top so that we can confirm the order with the factory in turn."

It is Miss Poon's evidence that the first and second sentences of the second full paragraph of that letter was written on the instructions of Mr Chui. She was not asked whether the sentence in question was written upon the instructions of Mr Chui although it is likely in the circumstances to be so. It is also her evidence that she received instructions from Mr Chui to send the two wood samples to the Defendant. However, Mr Chui denied that samples were mentioned during the pre-inspection telephone conversation. In these circumstances, it is not at all obvious that Mr Chan had specifically requested a rosewood wood sample. How or why it was sent to him can only be a matter of speculation. I do not think that based on that particular sentence in the letter, I am to conclude that Mr Chan has, as a result, been shown not to be a reliable witness.

34. In conclusion, I find that it was a term of the contract between the parties that the conference table to be delivered was to be of a dark, rather than a light, shade of brown within the range of colours exemplified by the Tecno walnut wood sample and the desktop in walnut that was inspected. It follows that the table actually delivered was not in accordance with the contract entered into between the parties and I hold that the Defendant was entitled to reject the table.

Damages

35. The Defendant is plainly entitled to be repaid the $150,000 paid on 11 May 1994 with interest. In addition, the Defendant seeks damages for the loss of the use of the boardroom from the date the table was delivered and assembled, namely 13 September 1994. Although Mr Chui in giving evidence stated that no special tools were required for the installation of the table, the Defendant has adduced evidence to the effect that it has not been able to dismantle the table : Mr Rousseau's evidence was that he and his workmen attempted to dismantle the table but after inspecting it decided that they did not have the tools nor the knowledge of how it was assembled to enable them to dismantle the table. The Defendant also approached Crown Pacific and BHI, respectively furniture removers and a renovation contractor, to dismantle the table. Both declined. As a result, the table is still in the Defendant's boardroom.

36. On 14 October 1994, shortly after the Defendant rejected the table, its solicitors wrote to the Plaintiff requesting it to remove the table and giving notice that the Defendant would be forced to seek damages arising out of the loss of the use of their boardroom in the event of the Plaintiff's failure to remove the table from the Defendant's premises. By a letter dated 12 December 1994, the Plaintiff's solicitors were notified that the Defendant had not been able to find any contractor willing to dismantle the conference table and repeating its claim to mesne profits represented by the loss of use of the boardroom. Notwithstanding these letters, the Plaintiff took no steps whatsoever to dismantle the table pending the resolution of the dispute between the parties. As a result, it is a fact that the Plaintiff's deliberate inaction has prevented the Defendant from having the use of its boardroom. A buyer who has rejected goods is nonetheless an involuntary bailee and is under an obligation to look after them : Heugh v. London and North Western Railway Co. (1870) LR 5 Exch 51. So the Defendant could not have been expected to take steps to dismantle the table without regard to possible damage to it.

37. Counsel for the Plaintiff submitted that in the absence of actual loss incurred by the Defendant, e.g. actual warehousing charges or the actual costs of having to hire rooms to hold conferences and board meetings which would otherwise have been held in the boardroom in question, the Defendant is not entitled to anything other than nominal damages. I find the argument singularly unattractive. The Plaintiff's conduct, in response to the Defendant's request, was both deliberate and wholly unreasonable. The Defendant must have realised that its conduct would effectively put the Defendant's boardroom out of action. Yet, it persisted in refusing to dismantle and/or to remove the table even after receiving express notice of the Defendant's inability to dismantle it.

38. The Defendant cited the case of Kolfor Plant Ltd. v. Tilbury Plants Ltd. (1977) 121 Sol. Jo.390 for the proposition that where a buyer is entitled to rescind a contract for the sale of goods, it is entitled to counterclaim for storage costs as part of the damages for breach of contract. In that case, the plaintiffs agreed to sell to the defendants a generator and to deliver it to the defendants' customer by a certain date. Time was of the essence of the contract and because there was delay in delivery, the generator was rejected. The plaintiffs sought to recover the costs of the generator and its delivery. The defendants counterclaimed on the ground that they had been entitled to rescind and also counterclaimed for the cost of transporting the generator to their premises from their customer and of storing it. The defendants succeeded in their counterclaim. However, the brevity of the report throws no light on how the storage costs were computed. It would not appear that the generator was stored at a warehouse, it was stored at the defendant's premises. Whilst that decision is of assistance on the question of whether as a matter of principle damages could include "storage" costs where such costs were not actually incurred e.g. by storing it at a third party's warehouse, it offers little assistance as to how that loss is to be computed.

39. The Defendant's contention is that in substance the Plaintiff's conduct amounts to trespass to land so as to entitle the Defendant to recover a sum representing the fair value of the use of that land for the period for which it is used by the Defendant. The so-called "user principle" has been applied not only to residential property (Swordheath Properties Ltd. v. Tabet [1979] 1 WLR 285) but also to business premises. In Penarth Dock Engineering Co. Ltd. v. Pounds [1963] 1 Lloyd's Rep 359 the owner of a dock recovered damages from a trespasser who failed to remove a pontoon although no actual loss was suffered by the owner because it would not have made use of the dock.

40. Counsel for the Defendant referred to Elvin and Karas on Unlawful Interference With Land (1995 Ed.) at pp.121-124 where recent Court of Appeal decisions in which mesne profits have been put partly on the footing of a restitutionary remedy for the recovery of a benefit obtained by the trespasser as an alternative to compensation for actual loss where an appropriate election is made are considered. These are Ministry of Defence v. Ashman (1993) 25 HLR 513, C.A. and Ministry of Defence v. Thompson (1993) 25 HLR 552, C.A. where at 554, it is stated as follows :

"... first, an owner of land which is occupied without his consent may elect whether to claim damages for the loss which he has been caused or restitution of the value of the benefit which the defendant has received.

Secondly, the fact that the owner if he had obtained possession would have let the premises at a concessionary rent, or even would not have let them at all, is irrelevant to the calculation of the benefit for the purposes of a restitutionary claim. What matters is the benefit the defendant has received.

Thirdly, a benefit may be worth less to an involuntary recipient than to one who has a free choice as to whether to remain in occupation or move elsewhere."

41. Based on the evidence of the rental value of the building, the Defendant seeks damages of $21/sq.ft. Although the lease relating to the 23rd floor was not adduced in evidence, there is no reason to believe that the lease produced which pertained to a lower floor that is let to the MTRC is other than at market value. Accordingly, there is prima facie evidence of the market rental value of the building and, hence, of the boardroom.

42. A point was made by the Plaintiff to the effect that it does not have actual control or possession of the room in question. Nevertheless, given the circumstances of this case, it can be said that the Plaintiff has constructive possession. By analogy with a tenant at sufferance, whilst "entry" i.e. delivery and installation was not as trespasser, the Plaintiff's refusal to remove the table after notice rendered the continuing presence of the table "unlawful" in that it was without the licence of the Defendant.

43. In the circumstances, I am presented with the option of awarding damages based on the evidence of the rental value of the building or, alternatively, as was submitted by counsel for the Plaintiff, awarding only nominal damages.

44. The Plaintiff submitted that damages assessed by reference to rental value should not be awarded because there is no precedent for such an award of damages for breach of contract involving the sale of goods. As the Defendant's argument was entirely novel, the court was invited to reject it. But this is a highly unusual case. The Defendant's evidence which I accept is that the dismantling of the table requires special tools and know-how. That being the case, it was reasonably foreseeable that for so long as the Plaintiff chose to continue to refuse to dismantle the table, the Defendant would be deprived of the use of its boardroom. In any event, even after receipt of actual notice of the Defendant's inability to dismantle the table, the Plaintiff chose to continue that state of affairs. Before engaging in conduct which cannot, on any view, be supported as reasonable, litigants are well-advised to consider very carefully the possible implications. In the present case, the Plaintiff has deliberately chosen to occupy the Defendant's office space by "storing" the rejected table at premises that command a rental value of $21/sq.ft. and must live with the consequences.

45. In all the circumstances, the Defendant is to be awarded a sum corresponding to the rental value of the 1020 sq.ft. at $21 per month by way of damages for the period referred to below. Although the rejection letter was dated 14 October 1994, notice of the Defendant's lack of success in dismantling the table was not given until 12 December 1994. Accordingly the period is to commence from 12 December 1994 until the date of the removal of the conference table from the Defendant's premises. This sum is in addition to the $150,000 which is to be repaid to the Defendant with simple interest at 11% p.a. from 11 May 1994 until the date of judgment and thereafter at judgment rate.

46. I also make an order nisi that the Defendant is entitled to the costs of this action.