Hong Kong Case Law: Decisions & Judgments

Topic

Fundamental breach

Legal area

Court

20 Nov 2023

CRB (a firm) v. MARK RICHARD CHARLTON SUTHERLAND

Citation

[2023] HKCFI 2984
Court

Court of First Instance
Case number

HCA1895/2020

Leave to amend the Defence and Counterclaim was granted in respect of particulars for negligence, breach of contract and fiduciary duty because the amendments advanced the real issues and delay alone did not justify refusal; however the new restitution claim for total failure of consideration was expunged because CRB had performed legal services and partial performance defeats total failure of consideration. The defendant's negligence counterclaim arose from the same subject matter as CRB's claim and was not so obviously untenable that summary judgment should be entered; accordingly the defen…
30 Sept 2013

KABUSHIKI KAISHA PROJE HOLDINGS (formerly known as STELLAR GROUP CO LTD) v. KING POWER GROUP (HONG KONG) LTD

Citation

KABUSHIKI KAISHA PROJE HOLDINGS (formerly known as STELLAR GROUP CO LTD) v. KING POWER GROUP (HONG KONG) LTD
Court

Court of First Instance
Case number

HCA350/2010

The CA was not void for incompleteness or uncertainty because Schedule 1 was a known preliminary draft not incorporated as a binding term; the defendant performed services within the CA's scope (including work on Patrick Cox and other projects) so there was no total failure of consideration or fundamental breach; the remuneration was an upfront fixed aggregate payment and not divisible into 60 monthly instalments; the plaintiff was not entitled to terminate and wrongfully terminated the CA on 7 August 2009; accordingly the plaintiff's claims are dismissed and defendant is entitled to costs.
28 Nov 2000

V-Eagle Industries Co. Ltd. v. SO OI LIN

Citation

V-Eagle Industries Co. Ltd. v. SO OI LIN
Court

District Court
Case number

DCCJ15497/2000

The defendant's complete non‑payment of any instalment for seven months with no prospect of future payments constituted a fundamental breach; the plaintiff was entitled to rescind the repayment agreement, issue proceedings (which constituted sufficient notice), and obtain judgment on the original invoices with interest and costs.
5 Feb 1997

ELITE PRECISION MACHINERY CO. LTD. v. VINCENT PRECISION MACHINERY CO. LTD.

Citation

ELITE PRECISION MACHINERY CO. LTD. v. VINCENT PRECISION MACHINERY CO. LTD.
Court

Court of First Instance
Case number

HCA6759/1994

Defendant had no good cause to delay tendering delivery or to impose further informational conditions; that conduct constituted a fundamental repudiatory breach which plaintiff validly accepted, thereby terminating the contract and entitling plaintiff to a refund of the purchase price with interest and costs.
23 Oct 1984

WINKENSON IMPEX CO LTD v. HAVERTON SHIPPING LTD AND OTHERS

Citation

WINKENSON IMPEX CO LTD v. HAVERTON SHIPPING LTD AND OTHERS
Court

Court of First Instance
Case number

HCAJ18/1983

Where a bill of lading for containerized house‑to‑house cargo contains a clear disclaimer that weight/contents are shipped unknown, the prima facie presumption that the carrier received the specific goods does not arise; plaintiffs failed to prove ownership or that the described goods were shipped, so claim dismissed. Separately, delivery of goods by the carrier's agent without production of the bill of lading constitutes fault; defendants bear the burden under Hague‑Visby Article IV(2)(q) to prove no fault and did not discharge it in the available evidence, so exemption could not have protec…
17 Oct 1979

BANK NEGARA INDONESIA v. THE HONG KONG AND KOWLOON WHARF AND GODOWN CO LTD

Citation

BANK NEGARA INDONESIA v. THE HONG KONG AND KOWLOON WHARF AND GODOWN CO LTD
Court

Court of Appeal
Case number

CACV55/1978

On the balance of probabilities the drums contained genuine nutmeg oil; the wharf company committed a fundamental breach by failing to compare signatures as required by Clause 42(a); applying contractual construction principles (fair and reasonable interpretation and contra proferentem) and relevant authorities, the exclusion/limitation clauses did not protect the defendant from liability for the full value of the lost goods; appeal dismissed.
1 Oct 1979

KUEHNE & NAGEL (HONG KONG) LTD v. YUEN FUNG METAL WORKS LTD

Citation

KUEHNE & NAGEL (HONG KONG) LTD v. YUEN FUNG METAL WORKS LTD
Court

Court of Appeal
Case number

CACV5/1979

The court held that delivery of the goods without surrender of the bill of lading was a fundamental breach of the contract of carriage and, because the defendants (as bailees/carriers) gave no evidence as to what occurred in their possession, they failed to discharge the burden to show the loss was not due to a fundamental breach; consequently they could not rely on exemption or limitation clauses and the trial judgment for the plaintiffs was upheld.
21 Dec 1978

YUEN FUNG METAL WORKS LTD v. KUEHNE & NAGEL (HONG KONG) LTD

Citation

YUEN FUNG METAL WORKS LTD v. KUEHNE & NAGEL (HONG KONG) LTD
Court

Court of First Instance
Case number

HCA3472/1977

The court held the defendants were carriers as a matter of contract by issuing through bills of lading in their own name; delivery of the goods to the consignee without production of the bill of lading was a fundamental breach that prevented the defendants from relying on exemption clauses; plaintiff was entitled to recover damages for loss caused, assessed at HK$222,817.92.
15 May 1978

BANK NEGARA INDONESIA v. THE HONG KONG AND KOWLOON WHARF AND GODOWN CO LTD

Citation

BANK NEGARA INDONESIA v. THE HONG KONG AND KOWLOON WHARF AND GODOWN CO LTD
Court

Court of First Instance
Case number

HCA1141/1969

On balance the court found the goods were genuine and valued as per the commercial documents; the defendant released the goods pursuant to a forged endorsement and its servant failed to perform the contractual obligation to compare endorsements with supplied authorised signatures; that failure was a fundamental breach (or deviation) that resulted in total loss and rendered further performance impossible; therefore the defendant could not rely on its exclusion or limitation clauses and was liable to the plaintiff for the full amount claimed with costs.
13 Jan 1978

BURWILL TRADING LTD v. THE HONGKONG AND KOWLOON WHARF AND GODOWN CO LTD

Citation

BURWILL TRADING LTD v. THE HONGKONG AND KOWLOON WHARF AND GODOWN CO LTD
Court

Court of First Instance
Case number

HCA1275/1974

The defendant warehouseman breached an express contractual undertaking (Clause 49) to verify the registered specimen signature before delivery; that failure was a fundamental breach going to the root of the storage contract in relation to the 30 cases and prevented reliance on the exemption Clause 29 and limiting Clause 5; plaintiffs accepted the repudiation in relation to those 30 cases and are entitled to full agreed value, interest and costs.