ANANDA LIMITED v. VANNY (HONG KONG) CO. LTD

1988 No.A5416

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

_____________

_______________

J U D G M E N T

_______________

1. The plaintiff claims loss of profit and consequential damages in respect of a defaulted contract between itself and the defendant. The defendant short delivered 150 metric tonnes of aluminium ingots out of a total contract quantity of 200 metric tonnes. Interlocutory judgment for damages to be assessed was entered on 17th October, 1988.

2. The defendant was absent having been duly served with notice of this hearing.

3. The plaintiff called its Assistant General Manager, Mr. Edward Wong, who produced a Board Resolution authorising him to give evidence (Ex. P.1). Mr. Wong then produced the original purchase contract as Exhibit P.2 showing a purchase price from defendant of US$1,570.00 per metric tonne (P.M.T.). He also produced a sales confirmation from the on-purchaser in Taiwan (Choice Way Trading Co. Ltd.) as Exhibit P.3, showing a price of US$1,600.00 P.M.T. for 150 P.M.T. of ingots.

4. Mr. Wong went on to say that the Taiwan purchaser had stipulated that the goods be tendered not later than 15th December, 1987. When the plaintiff failed to make delivery due to defendant's own prior failure to do so, the Taiwan company bought the 150 M.T. of ingots in the market. Mr. Wong produced as Ex P.4 a letter to plaintiff company from the Taiwan company to this effect showing a purchase at US$2,200.00 P.M.T. Also in Ex. P.4 is a debit note to plaintiff for US$90,000.00, representing the difference between the contract price at US$1,600.00 P.M.T and the replacement purchase price to the Taiwan purchaser.

5. There is no direct evidence that the replacement price of US$2,200.00 represented the market price at, the time. However, the plaintiff had no interest in accepting too high a price, uncertain as it would be of reclaiming it from the defendant.

In the circumstances, and in the absence of dispute, I find it probable that the replacement price represented the market price.

6. The plaintiff produced as Ex. P.5 bank transfer slips totalling US$90,000.00, and this sum is accordingly awarded.

7. The plaintiff pleads that the contract price from the defendant was reduced from US$1,570.00 P.M.T. to $1,560.00 P.M.T., and Mr. Wong duly gave evidence to that effect. The plaintiff therefore claims as loss of profit a further US$6,000.00, being the difference of US$40.00 P.M.T. between its purchase price from defendant and the intended sale price to Taiwan. This amount is also awarded, making a total of US$96,000.00.

8. Interest will run at 2% over prime rate from the date of writ and the plaintiff is awarded its costs.