Mitsubishi Elevator Hong Kong Co Ltd v Marriot Engineering & Construction Co Ltd

CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ3970/2011
Subject MatterCivil Action
DCCJ3970C/2011 MITSUBISHI ELEVATOR HONG KONG CO LTD v. MARRIOT ENGINEERING & CONSTRUCTION CO LTD

DCCJ 3970/2011

[2018] HKDC 237

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3970 OF 2011

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BETWEEN
MITSUBISHI ELEVATOR HONG KONG COMPANY LIMITED Plaintiff
and
MARRIOT ENGINEERING & CONSTRUCTION COMPANY LIMITED Defendant

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Before: Deputy District Judge J. Chow in Chambers (open to public)
Date of Hearing: 31 January 2018
Date of Decision: 7 March 2018

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DECISION

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Introduction

1. I handed down my judgment on 15 September 2017 (“the Judgment”) on assessment of damages. The defendant applied by way of summons on 13 October 2017 for leave to appeal; and the plaintiff applied by way of summons on 6 December 2017, for an order that the judgment sum be paid into court on condition of leave to appeal.

2. As a recap, the defendant was a main contractor of renovation works at a premise located at 8 – 12 Peak Road; the plaintiff was a supplier of lift and elevator. The plaintiff and the defendant entered to a contract that the plaintiff agreed to supply and install a Nexway S Model lift (“the Lift”) in the said premise at a lump sum price of $598,000. For some reason, the defendant ceased to be the main contractor of the renovation works, it refused to accept the Lift when the plaintiff had duly manufactured and delivered to the plaintiff’s warehouse. The defendant admitted it was in breach of contract and had admitted liability. In the assessment of damages, I awarded the plaintiff judgment sum HK$584,060.80 together with interest at judgment rate from the date of the judgment until payment.

The defendant’s summons

3. The main ground of appeal is that I have erred in finding the contract was one of contract for sale and goods rather than contract for goods and services. As a result, I have adopted an erroneous formula in assessing damages pursuant to section 52 of the Sale of Goods Ordinance, Cap 26 (“the Ordinance”). The correct assessment of damages shall be done under the common law principles.

4. Notwithstanding this, the defendant also submitted I have erred in assessing damages in sum of HK$584,060.80.

5. The legal principles of granting leave to appeal are well settled. Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336)

6. Reasonable prospect of success connotes the...

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