WING TAT HABERDASHERY CO LTD v. ELEGANCE DEVELOPMENT & INDUSTRIAL CO. LTD

WING TAT HABERDASHERY CO LTD v. ELEGANCE DEVELOPMENT & INDUSTRIAL CO. LTD

Leave to appeal was granted because the defendant demonstrated an arguable case with reasonable prospects that the trial judge erred in reducing the counterclaim by 50% by applying a duty to take precautionary steps to losses that were principally replacement costs; the proper statutory test for leave is the s63A Cap.336 reasonable prospect threshold.

Citation
WING TAT HABERDASHERY CO LTD v. ELEGANCE DEVELOPMENT & INDUSTRIAL CO. LTD
Parties
Plaintiff/respondent: Wing Tat Haberdashery Company Limited; Defendant/applicant: Elegance Development & Industrial Co. Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 July 2011
Case Number
HCMP357/2011
Procedural Posture
Civil Appeal (leave Application) From District Court Judgment / Application for Leave to Appeal Under Section 63 a District Court Ordinance
Outcome
Leave to appeal granted to the defendant; costs of the summons to be in the cause of the appeal
Legal Topics
Conformity to Sample, Mitigation of Loss, Leave to Appeal Test, Apportionment of Loss, Damages Calculation
Source Language
EN
Sale of Goods Contract Civil Procedure Appeals Costs Conformity to Sample Mitigation of Loss Leave to Appeal Test +2 more

Case Brief

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Parties

Wing Tat Haberdashery Company Limited

Plaintiff/respondent

Elegance Development & Industrial Co. Limited

Defendant/applicant

Procedural Posture

Civil Appeal (leave Application) From District Court Judgment / Application for Leave to Appeal Under Section 63 a District Court Ordinance

Legal Issues

  1. 1 Whether the goods conformed to the contractual samples and whether specified light tests formed contractual terms
  2. 2 Whether the judge was entitled to infer defects from the seller agreeing to re-dye without an expert survey
  3. 3 Whether the buyer had a duty to take remedial or precautionary steps upon discovering defects thereby reducing recoverable loss

Ratio Decidendi

Leave to appeal was granted because the defendant demonstrated an arguable case with reasonable prospects that the trial judge erred in reducing the counterclaim by 50% by applying a duty to take precautionary steps to losses that were principally replacement costs; the proper statutory test for leave is the s63A Cap.336 reasonable prospect threshold.

Court Disposition

Leave to appeal granted to the defendant; costs of the summons to be in the cause of the appeal

Orders

  • Leave to appeal granted
  • Costs of this application to be in the cause of the appeal