Hong Kong Judgment

District Court

BIZONIC.COM LTD v. PORTALVISION.COM LTD

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The defendant breached and repudiated the agreement, the plaintiff validly accepted the repudiation, and the proved heads of loss (deposit, wasted payments and replacement consultant fees) entitled the plaintiff to damages of $96,759; interest from 25 May 2006 and costs were awarded accordingly.

Court disposition

Judgment for the Plaintiff

Orders

  • Defendant to pay the Plaintiff the sum of $96,759 within 14 days, together with interest from 25 May 2006 until satisfaction at the judgment rate
  • Defendant to pay the costs of these proceedings to the Plaintiff, to be taxed if not agreed

02

Material facts

Parties

BIZONIC.COM LIMITED

Plaintiff Counsel: Ms S K Hui, Messrs Huen & Partners

PORTALVISION.COM LIMITED

Defendant

Amounts and remedies

  • Deposit Paid to Defendant: HKD 48,000
  • Asiapay Pay Dollar Setup and Monthly Fee: HKD 4,960
  • IBM Server Purchase Cost: HKD 27,900
  • Resale of IBM Server: HKD -3,000
  • Additional Consultant Fees to Complete Development: HKD 32,000
  • Total Amount Calculated by Plaintiff: HKD 109,860
  • Amount Claimed and Awarded: HKD 96,759

03

Procedural history

  1. Posture

    Software Development Agreement Breach of Contract / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
Plaintiff relied on the written Software Development Agreement dated 23 June 2005 and alleged the defendant failed to complete and deliver the development work in accordance with the schedule and failed to remedy breaches after a solicitor's letter dated 26 January 2006; plaintiff accepted the defendant's conduct as repudiation on 21 February 2006 and claimed specified losses including deposit and wasted costs totalling $109,860 but limited the claim to $96,759.
Respondent
Defendant was absent and unrepresented; no evidence was adduced on the defendant's behalf and no evidence of lost profits was provided.

05

Court’s reasoning

  1. 01

    Common law

    Acceptance of a repudiatory breach terminates the contract and enables the innocent party to claim damages

  2. 02

    Common law

    Damages for breach of contract are assessed to place the innocent party in the position they would have been in had the contract been performed

  3. 03

    District Court practice/rules

    Interest is payable on judgment from the date specified by the court at the judgment rate until satisfaction

06

Ratio, limits and disposition

Ratio decidendi

The defendant breached and repudiated the agreement, the plaintiff validly accepted the repudiation, and the proved heads of loss (deposit, wasted payments and replacement consultant fees) entitled the plaintiff to damages of $96,759; interest from 25 May 2006 and costs were awarded accordingly.

Obiter and limits

  • No evidence was adduced to support a claim for loss of profits so no award was made for that head
  • The defendant's absence and lack of representation was noted by the court

Court disposition

Judgment for the Plaintiff

  • Defendant to pay the Plaintiff the sum of $96,759 within 14 days, together with interest from 25 May 2006 until satisfaction at the judgment rate
  • Defendant to pay the costs of these proceedings to the Plaintiff, to be taxed if not agreed

Source and reliance status

District Court · 31 October 2007

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Judgment reading view

Judgment text

The complete available source text.

Source document

District Court

Judgment· 31 October 2007

BIZONIC.COM LTD v. PORTALVISION.COM LTD

bjbj DCCJ2552/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2552 OF 2006

BETWEEN BIZONIC.COM LIMITED Plaintiff and PORTALVISION.COM LIMITED Defendant Coram: H H Judge Chow in Chambers (Open to the public) Date of Hearing: 31 October 2007 Date of Decision: 31 October 2007

JUDGMENT By a written Software Development Agreement dated 23.6.2005 signed between the Plaintiff and the Defendant, the Defendant agreed to develop a custom made software, webpage platform, database management system and supply website building up and creative design service for creating a B2B electronic marketplace system in electronic component industry of the Plaintiff in accordance with the specifications set out in the said agreement at $80,000. But the Defendant failed to complete and deliver the Development Work in accordance with the development schedule set out in the Second Schedule of the said agreement, either on the agreed days or at all, and it also failed to remedy the said breaches committed by it, although the Plaintiff, through its solicitors, had given to the Defendant (a letter) on 26 January 2006 to remind the Defendant of the said matters. Then on 21 February 2006, the Plaintiff has written a letter to the Defendant to accept the Defendant s conduct as a repudiation of the said agreement. Because of the breach of the said agreement committed by the Defendant, the Plaintiff suffered the following loss and damages particularised as follows: (1) The deposit amount already paid to the Defendant by the Plaintiff $48,000 (2) Wasted costs for the Development Work including: (a) payment to the Asiapay for the PayDollar eCommerce Payment Service Setup Fee and

monthly fee $4,960 (b) payment to the equipment for the purpose of supporting the Development Work - IBM server $27,900 (c) less: the resale of the IBM server ($3,000) (3) Additional charges for instructing another consultant to develop the Development Work $32,000 The total amount due is $109,860 but the Plaintiff only claimed $96,759. There is no evidence relating to the loss of profit adduced by the Plaintiff before this court, so I will not make any order in this respect. I order that the Defendant to pay, within 14 days from today, the sum of $96,759 to the Plaintiff, together with interest, commencing from 25 May 2006 until satisfaction, at judgment rate. The Defendants to pay costs of these proceedings to the Plaintiff, to be taxed, if not agreed. (Chow) District Court Judge Ms S K Hui, of Messrs Huen & Partners, for the Plaintiff Defendant, in person, absent

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T U V &`#$ Normal.dot setup Microsoft Word 9.0 Judiciary Hong Kong SAR Title Microsoft Word Document MSWordDoc Word.Document.8

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