Waly Decorative Products Ltd. v. Gitting Engineering Ltd.

IN THE COURT OF APPEAL

1991, Nos. 7 & 8
(Civil)

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J U D G M E N T

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Nazareth, J.A.:

1. This is the judgment of the Court.

2. The two actions that are the subject of these appeals were heard together by consent. In each, the plaintiff claimed damages from the defendant concerned for failure to supply wood veneer of the specifications contracted for. Deputy Judge Sakhrani, Q.C. found for the plaintiff in each case and awarded damages. There is no appeal against those awards.

3. However, in each of the actions the plaintiff also sought a declaration that it was entitled to recover from the defendant concerned such damages for which it may be held liable to the sub-buyers it had contracted to supply as a result of the defendant's breach of contract. The learned Deputy Judge made such declarations and each is now the subject of appeal by which this Court is invited, first, to set aside the declaration granted that the plaintiff is entitled to recover from the defendant such damages for which it may be held liable to its sub-buyer as a result of the defendant's breach of the contract; and, second, to grant an order that any question of damages arising from the plaintiff's liability to its sub-buyer as a result of the defendant's breach of contract be reserved with liberty to apply for directions for trial and assessment in respect thereof.

Mr. Peter Ng for the appellant/defendant relies on Trans Trust S.P.R.L. v Danubian Trading Co. Ltd [1952] 2 QB 297 for the proposition that it is wrong in principle to make an order of the sort granted before the damages are quantified.

Mr. Edward Chan, QC for the Respondent, does not oppose that submission. Indeed, the principle adopted by the Court of Appeal in England in that case was followed by this Court in Wong Ho Wai Ying v Yeung Shui Cheung Civil Appeal No. 128 of 1986 (Unreported). It follows, therefore, that the declaration cannot stand and we accordingly allow the appeals, set aside the declarations and make an order in the terms applied for. By consent we make no order as to the costs of these appeals.