PAUL ROBERTS AND ANOTHER v. WONG HING WAH

DCCJ 13016/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13016 OF 2001

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JUDGMENT

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1. The plaintiffs are husband and wife and the defendant is a firm of removers.

2. The plaintiffs in this action claims against the defendant for damages for breach of contract made between them whereby the defendant agreed to remove and deliver the plaintiffs' household items from Hong Kong to the Philippines within a specified period of time at an agreed fee. The plaintiffs had paid the defendant the agreed fee, and the defendant had collected the household items from the plaintiffs' place in Hong Kong but the items had never arrived at the Plaintiffs' home in the Philippines.

3. In October 2000, the plaintiffs obtained a default judgment on liability against the defendant. In the present hearing for the assessment of damages, the defendant failed again to attend and thus the hearing was conducted in its absence.

4. At the hearing, the plaintiffs' legal representative, Mr. Liaw, had made a number of applications, some were allowed and some refused, with the result that the court needed only to consider the following heads of damages:

(a)- amount of fee paid by plaintiffs	(HK$ 14,740)
(b)- telephone charges	(HK$ 2,000)
(c)- costs of replacement	(HK$ 15,000)
(d)- distress and inconvenience	(HK$ 10,000)

REASONS FOR REFUSING APPLICATIONS

5. Mr. Liaw applied for amending the claim under the head of costs of replacement from HK$ 15,000 to HK$ 36,061 on the grounds that with the evidence available to the court at the hearing, the amount actually came up to HK$ 36,061. His reason for failure to seek an earlier amendment was because the plaintiffs' solicitors did not have all the details about the costs the plaintiffs had incurred in replacing the lost items. In the first plaintiff's affidavit dated 18th December 2001, however, it was clearly set out the individual items with and without proof of receipts respectively on two columns and the price thereof. Indeed, Mr. Liaw also indicated to the court that the plaintiffs' solicitors had the information necessary to particularize the damages by the time the default judgment was obtained in October 2000. I cannot see how they could have delayed the matter until the present hearing to make the application.

6. On a second application, Mr. Liaw also asked the leave of the court to amend the amount claimed under " Distress and Convenience" from HK$ 10,000 to HK$ 100,000 on the grounds that upon review of the relevant authorities, it justified a claim of the larger amount. The decided case as relied upon by the plaintiffs as authority to support such claim, in fact, was an English case (Jarvis v. Swans Tours LTD (1973) 1 Q.B. 233), the English Court of Appeal allowing the appeal by increasing the compensation to two times the contract price paid by the appellant as damages for the loss of entertainment and facilities for enjoyment. Here even if doubling the contract price, the amount is slightly less than HK$ 30,000 which is well below the amount of HK$ 100,000 as suggested.

7. For both applications, the plaintiffs sought to amend the amount claimed upwardly; in other words, the amount claimed under the relevant heads would be greater than that which they had informed the defendant. In all fairness, in my view, I should have the view of the defendant before I grant the application for this is directly affecting the interests of the defendant. Moreover, the reasons given by the plaintiffs were too far-fetched and unjustifiable. I therefore refused the applications.

8. Towards the end of the hearing, Mr. Liaw again made an application for adjournment so that the plaintiffs could have the opportunity to particularize the damages in fuller details and also to add other heads of damages; this only showed that the plaintiffs' solicitors have not prepared the case properly as they should have, I saw no justification to grant the application.

ASSESSMENT OF DAMAGES

9. As the defendant failed to deliver any of the household items to the intended destination, there was a total failure of consideration, and thus the plaintiffs are entitled to the return of the fee actually paid.

10. It is natural to expect the plaintiffs to contact the defendant and to make enquires about state of affair concerning the whereabouts of the household items when they failed to arrive as scheduled, telephone calls were one of the usual ways to communicate. I am satisfied that the plaintiffs did make those long distant calls to the defendant for the purpose of sorting the matter out with the defendant and I find the amount claimed to be reasonable.

11. For the lost household items, the plaintiffs have replaced them. The value of those items which the plaintiffs could adduce receipts in support amounted to HK$ 23,801 which is already over and above the amount as claimed. I accept the evidence and therefore allow the claim to the amount of HK$ 15,000 which was claimed by the plaintiffs.

12. Regarding compensation for distress and inconvenience, there is no hard and fast rule and each case depends on its own fact. It always involves an element of arbitrariness in assessing the amount of compensation. The Jarvis's case is only helpful in that it gives the court some ideas as to how to approach the problem, but in my view one should not treat it as a rigid formula since the nature and fact of each individual case may differ substantially from one another. I accept that the plaintiffs would be put to some kind of distress and inconvenience because of the breach of the contract by the defendant, especially the loss includes something which could not be replaced such as wedding photographs etc., and on the evidence before me I am prepared to grant to the full extent of the amount claimed, i.e. HK$ 10,000.

CONCLUSION

13. For the reasons given above, the quantum of damages is therefore assessed at HK$ 41,740.

14. The orders that I make are as follows: the defendant do pay the plaintiffs

(a)	the judgment sum of HK$ 41,740;
(b)	interest on the judgment sum at 11.98% per annum as from the date of writ to the date of judgment and thereafter at judgment rate until payment; and
(c)	costs of this action, to be taxed if not agreed.