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Damages (Malaysian law) - Coggle Diagram

- - - - 4. Section 74(1) of the Contracts Ordinance, 1950, is a statutory enunciation of the rule in Hadley v Baxendale. This section reads:
        
        State Section 74(1) again
        
        When a contract is broken the party who suffers by such a breach is able to receive from the party who broke the contract, compensation for any loss/damage caused to him, which naturally arose in the usual course of things from such a breach or that the parties knew if you broke a contract damages will be the likely result of it
        
        6. Reasonable foreseeability, restated by Asquith LJ in Victoria Laundry (Windsor) v Newman Industries (1949)
        
        Its well known that the main aim of damages is to put the party whose rights have been violated in the same position as far as money can do, seen in Sally Wertheim v Chicoutimi Pulp Co (1911). If fulfilled, it will provide him with complete indemnity for all the loss de facto resulting from a particular breach, however improbable, however unpredictable. = the rule is too harsh.
        
        The losing party is only allowed to recover such part of the loss actually resulting at the time of the contract, which is reasonably foreseeable (knowledge that is possessed) as liable to result from the breach
        
        Victoria Laundries v Newman Industries:
        
        Facts: C ordered a large boiler from D for some lucrative dyeing contracts. D was aware of the nature of C's business and D knew that the boiler must come on time. Delivery was late by 5 months and C claimed for breach of contract.
        
        C claimed for damages for loss of profits resulting from the delay as the losses is reasonably and foreseeably flowed from the breach = recoverable. D also knew about it.
        
        For the purpose of "possessed" there is 2 kinds:
        
        Imputed AND actual
        
        As a reasonable person, they are assumed to know the "ordinary course of things" and consequently what loss is liable to result from the breach of contract in that ordinary course. AKA "1st rule" in Hadley v Baxendale supra"
        
        But when a contract-breaker is assumed to possess whether he actually possesses it or not, there might be added a particular case of knowledge that he actually has of special circumstances outside "ordinary course of things" where a breach in those special circumstances would be liable to more loss. AKA the "2nd rule" as to make additional loss recoverable
        
        To make a contract-breaker liable under either rule is not necessary to ask himself what loss is liable to result from a breach
        
        As mentioned, parties at the contemplating the contract (contract not breached yet), but its performance.
        
        It suffices that he has considered the question, he as a reasonable man concluded that the loss in question was liable as a result
        
        As observed by Lord Du Parcq in Monarch Steamship Co. Ltd v Karlshamns Olifaribker (A/B) (1949)
        
        To make a particular loss recoverable, need to prove given the state of knowledge that D (as a reasonable man) can foresee that a breach will necessarily result from the loss.
        
        Its enough if he can foresee it was likely to result from it
        
        Can borrow what Lord Duparcq said: if the loss or some other factor without which would've occurred is a "serious possibility" or a real danger.
        
        Must use the word "liable to result". Possibly the colloquialism "on the cards"
        
        Shows the shade of meaning with some approach to accuracy
        
        1 more item...
        
        3. Per Azmi CJ in Toeh Kee Kong v Tambun Mining Company Ltd (1967):
        
        C, having secured a mining contract through various permits and sub-leases, faced a situation where D's company terminated the contract after the mining operations began yielding ore. C claimed $290,000.45 for work done, materials, and expenses.
        
        The trial judge determined there was a breach of contract, calculated that D's share of expenditures as 10/24 of the total, and awarded C $99,272 plus costs. Dissatisfied with the damage assessment, C appealed to the Federal Court, questioning the validity of the principle used in assessing the damages.
        
        Hadley v Baxendale:
        
        C owned a mill featuring a broken crankshaft. C engage D to transport the shaft to the location for repairs and then subsequently transport it back. D then made an error causing the shaft to be returned to C a week later, during which time C’s mill was out of operation. C alleged that D displayed professional negligence and attempted to claim for the loss of profit resultant from the unexpected week-long closure.
        
        D argued that this was unreasonable as he didn't know that the delay will result the mill’s closure and cause loss of profit = failed to satisfy the test of remoteness.
- - - - s51 SRA 1950 - Temporary Injunction (Interlocutory injunctions):
        
        To regulate the position of parties pending a hearing.
        
        Applicant must prove that there's a serious question to be tried.
        
        Purpose of injunction is to preserve status quo until the final outcome of case
        
        American Cyanamid v Ethicon
      - Perpetual Injunction
        
        Granted by the courts at the end of the hearing and upon the merits of the suit
      - Warner Brothers Pictures Inc v Nelson (1936):
        
        Facts: D (Bette Davis) entered into a contract with C where she agreed she won't undertake other film work or any other occupation without C's written consent. C sought an injunction to restrain her from doing film work for another company in breach of this agreement.
        
        Held: Injunction granted. But no injunction will be granted to prevent her engaging in 'other occupations' as this will force her to work for C.
  - - - S11 (1) SRA 1950:
        
        Specific Performance may be granted at the discretion of the courts in the following circumstances:
        
        When the act agreed to be done is in the performance wholly or in part of a trust
        
        e.g. (A) hold certain stocks in trust for (B). (A) wrongly disposes of the stock. (B) may sue for SP
        
        Where there's no standard for ascertaining the actual damage caused by the non performance of the act agreed to be done
        
        e.g. (A) agrees to buy and (B) agrees to sell a picture by a dead painter and 2 rare vases. (A) may obtain SP as there's no standard for ascertaining actual damage that would be caused by its non performance
        
        When the act agreed to be done is such that pecuniary compensation for its non performance will not afford adequate relief
        
        e.g. (A) contracts to sell and (B) contracts to buy shares of specific description. (A) refuses to complete sale. (B) can compel (A) specifically to perform this agreement for the shares are limited and their possession carries the status of a shareholder that cannot be procured
      - S20 SRA 1950:
        
        A contract for the non performance of which compensation in money is an adequate remedy
        
        A contract that runs into such minute details (contract too complex)
        
        A contract made by corporation which is in excess of its powers (ultra vires - companies acting outside their scope of their duties)
        
        A contract where its subject matter no longer exists