CHOY NGA WAI NANCY v. GENTLE SMART LTD AND ANOTHER

CHOY NGA WAI NANCY v. GENTLE SMART LTD AND ANOTHER

Plaintiff was not entitled to assess damages at date of judgment because she did not act reasonably to preserve or obtain specific performance; however the 1st Defendant breached equitable duties and a forced mortgagee sale realised a net gain which equity permits to be partially disgorged, so a Wrotham Park style remedy was appropriate in the circumstances and damages were fixed at HKD 260000 plus interest, with return of deposits and specified interest, and no separate award for wasted conveyancing costs.

Citation
CHOY NGA WAI NANCY v. GENTLE SMART LTD AND ANOTHER
Parties
Plaintiff: Choy Nga Wai Nancy; 1st Defendant: Gentle Smart Limited; 2nd Defendant: Leung Suet Ching
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 April 2009
Case Number
DCCJ4895/2007
Procedural Posture
Contract for Sale of Land; Specific Performance and Damages / Judgment Assessment of Damages
Outcome
Judgment for Plaintiff against 1st Defendant: damages in lieu of specific performance and return of deposits ordered; 1st Defendant to pay part costs of assessment
Legal Topics
Specific Performance, Damages in Lieu of Specific Performance, Assessment Date for Damages, Wrotham Park/negotiation for Release Damages, Account of Profits/gains Based Remedies, Mitigation, Valuation Evidence, Unjust Enrichment
Source Language
EN
Contract Law Property Law Equity Civil Procedure Remedies Specific Performance Damages in Lieu of Specific Performance Assessment Date for Damages +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 20 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Choy Nga Wai Nancy

Plaintiff

Gentle Smart Limited

1st Defendant

Leung Suet Ching

2nd Defendant

Procedural Posture

Contract for Sale of Land; Specific Performance and Damages / Judgment Assessment of Damages

Legal Issues

  1. 1 Proper date for assessment of damages (contractual completion date vs. date of auction vs. date of judgment)
  2. 2 Whether purchaser could claim loss of bargain/profit from a contemplated resale
  3. 3 Whether gains realised by vendor via forced sale should be disgorged and by what measure

Ratio Decidendi

Plaintiff was not entitled to assess damages at date of judgment because she did not act reasonably to preserve or obtain specific performance; however the 1st Defendant breached equitable duties and a forced mortgagee sale realised a net gain which equity permits to be partially disgorged, so a Wrotham Park style remedy was appropriate in the circumstances and damages were fixed at HKD 260000 plus interest, with return of deposits and specified interest, and no separate award for wasted conveyancing costs.

Court Disposition

Judgment for Plaintiff against 1st Defendant: damages in lieu of specific performance and return of deposits ordered; 1st Defendant to pay part costs of assessment

Orders

  • Damages payable by the 1st Defendant to the Plaintiff assessed at HKD 260000 with interest at judgment rate from date of judgment to date of assessment and thereafter at judgment rate until payment
  • The 1st Defendant do return deposits to the Plaintiff in the sum of HKD 278000 with interest at 5% per annum from date of the writ to 31 April 2008 and from date of judgment until payment