VELCO ENTERPRISES LTD. v. HE-RO CHEMICALS LTD.

IN THE COURT OF APPEAL

1993, No. 43
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from a decision of Kaplan J. on an Order 14 summons in which he held that there was no defence to the plaintiff's claim and entered judgment for the plaintiff.

2. The facts of the matter are fully set out in the judgment of Kaplan J. The plaintiff entered into a contract for the supply of zinc oxide from China, the ultimate purchaser being the 2nd defendant, the 1st defendant was the forwarding agent and the claim arises from the fact that although the goods were delivered to the 2nd defendant in such that, even in the absence of that specific requirement, the 1st defendant was not entitled to hand over the goods as it did.

3. There is a now raised question of the level of damages. The consignment was 102 metric tons and there is an allegation contained in one of the affidavits sworn on behalf of the plaintiff that this amount was not delivered - it was short by some 19.6 metric tons. There is also the suggestion that the goods were in bags not properly packed. There was no evidence produced in the court below to support this claim and this is a matter which has only been taken here. I am satisfied that it is too late for the 1st defendant to take this point and that the judge was correct in awarding damages on the basis of the value of the cargo as in the contract between the plaintiff and the 2nd defendant, US$74,960.

4. I would therefore dismiss this appeal and would not interfere with the judge's finding as to the level of damages.

Nazareth, J.A.:

5. For the reasons given by my Lord I also agree that the appeal should be dismissed.

Godfrey, J.:

6. I also agree.

Penlington, J.A.:

7. There was also an application for leave to call further evidence on which we did not call on the respondent. In my opinion the appellant has not shown that the evidence could not have been obtained with reasonable diligence for use before Kaplan J. and the first test in Ladd v. Marshall [1954] 1 WLR 1489 have not been satisfied. That application is therefore dismissed and the respondent is entitled to the costs of that application and of this appeal.