VINEBERG PROPERTY MANAGEMENT LTD v. PROFESSIONAL MANAGEMENT CONSULTANCY (HOLDING) LTD

DCCJ4497/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVL ACTION NO. 4497 OF 2006

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R U L I N G

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1.  Liability has been concluded.  It was concluded when the defendant failed to enter a defence.  Plaintiff applied to this court and obtained judgment in default of defence, and the interlocutory judgment was that damages were to be assessed.

2.  The hearing today is for assessment of damages.  The plaintiff company returned to five other bidders with prices ranging from $319,000 to $600,000 to take up the project. 

3.  When defendant company having won the tender, and the plaintiff company having accepted the defendant’s bid, failed to carry out the contract.  Plaintiff company could not obtain a contract from the other bidders, and therefore they sought other companies to do the work.

4.  Time was running out for them.  It was a matter of a week or less than a week.  That is between, at the most, 26 April to 1 May in 2006.  And they found a company called Paracom Limited, who undertook the work but at a price of $476,350.  This figure was not excessive if I look at the bids of the other companies who had originally bid for this work project.

5.  As I mentioned, the other bidders, originally for the project, was within the range of $319,000 to about $600,000, so $476,350 would be in the middle of the range.

6.  Plaintiffs of course had to pay a higher price when defendant company failed to perform.  The difference is $168,340, and this is the amount the plaintiff company claimed.

7.  This court is satisfied that this is the damages defendant company has to pay and this is a direct consequence that occurred, or direct damage that had occurred due to the defendant’s breach of contract. 

8.  In fact, when I looked at the plaintiff’s statement of claim, this is a claim for a liquidated sum.  It is not claim for damages to be assessed.  So I am not too happy that this case has been brought up today for damages to be assessed. 

(Discussion with plaintiff’s representative re claim)

9.  There is nothing to be assessed.  It is a straightforward claim; it is a direct claim.  And the claim is for a liquidated sum; it is not for damages.  So when directions were given that three hours should be set down for damages to be assessed, plaintiff’s solicitors should have the duty to point out to them or argue your case, saying, “It is not for damages to be assessed.  It is for liquidated sum.  They do not defend.  We should have judgment for the liquidated amount.” 

10.  So that is my observation:  that, since the claim is for a liquidated amount, then judgment in default of the amount claimed should have been entered, rather than to come to court today to deal with something quite obvious.  The obvious is of course it is a liquidated damage.  It is not an assessment.

11.  But nevertheless, the assessment has been heard and conducted today.  And that would, I think, increase the costs defendant has to pay.

12.  Judgment is therefore entered in favour of the plaintiff against the defendant in the amount of $168,340.00  Interest at judgment rate is payable by the defendant to the plaintiff from the date of the writ, that is from 11 September 2006, to the date of judgment hereof, and interest at judgment rate is also payable from the date of judgment hereof to the date of full satisfaction of the judgment sums by the defendant to the plaintiff.

13.  And I would also order that the defendant is to pay the plaintiff’s costs of this action to be taxed if not agreed.