BIZONIC.COM LTD v. PORTALVISION.COM LTD
- Citation
- BIZONIC.COM LTD v. PORTALVISION.COM LTD
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- District Court
- Decision
- 31 October 2007
- Posture
- Software Development Agreement Breach of Contract / Judgment
- Case number
- DCCJ2552/2006
- Language
- English
More details
- Court
- District Court
- Decision
- 31 October 2007
- Posture
- Software Development Agreement Breach of Contract / Judgment
- Case number
- DCCJ2552/2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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 & PartnersPORTALVISION.COM LIMITED
DefendantAmounts 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
Posture
Software Development Agreement Breach of Contract / Judgment
04
Questions and positions
Legal issues
- 01
Whether the defendant repudiated the software development agreement and whether the plaintiff validly accepted the repudiation
- 02
What heads of loss are recoverable and their quantum (deposit, wasted costs, replacement consultant)
- 03
Whether plaintiff proved loss of profits
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
Legal principles
- 01
Common law
Acceptance of a repudiatory breach terminates the contract and enables the innocent party to claim damages
- 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
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
District Court
Judgment· 31 October 2007
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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