The Court emphasized that damages must be proven with clear evidence and not based on speculative claims. A failure to provide substantive proof results in dismissal of claims.

[31] Before embarking on the assessment in granting the damages in lieu of specific performance, it is absolutely necessary to have a proper appreciation of the judgment of the learned High Court Judge after the full trial, it is apposite to note that the findings of the learned High Court Judge remain undisturbed and as such is res judicata. The judgment must be taken as the truth of the matter between the parties herein and the Order granted must be adhered to.

[32] It is crystal clear that the 2nd Defendant owns the Land and that the 3rd Defendant bought part of the Land. Consequently, the Plaintiff who has entered into the HKM for the sale and purchase of the Land which is more than what the 3rd Defendant had bought, lost its right to acquire the Land as the agreement fell through. That background facts where the Plaintiff was halted from obtaining the Land can be found in the judgment of the learned High Court Judge as follows:

"To protect its interest on the said Land, the Plaintiff entered a private caveat on 4 June 2012 and obtained an injunction on 19 September 2012 restricting the 1st and 2nd Defendant of any dealings with the Land and any initiation proceedings for the removal of the caveat. In spite of having notice of the Plaintiffs interest, the 2nd Defendant entered into an option to purchase with the 3rd Defendant for the sale and purchase of a portion of the Land. On 11 September 2012, the 2nd Defendant and the 3rd Defendant entered into a sale and purchase agreement right before the injunction became enforceable."

[33] It is important to reproduce these important excerpts of the judgment of the learned High Court Judge where her Ladyship found the followings:

"The solicitors of the Plaintiff and the 1st Defendant vetted as well as proposed amendments and exchanged comments. The preparation of the draft continued even when a new solicitor was appointed by Mr Sugiki. During the rigorous discussions and amendments the shares and the golf course as well as the price had always remained as the core of the negotiations.

In his WS PW1 told the Court that after the aborted execution of the SPA on 23 March 2011, he had communicated with Mr Sugiki via telephone as well as by e-mails dated 8 November 2012 (translated by PW1) Mr Sugiki confirmed that he intended to sell the Land and the membership"

[Emphasis Added]

[34] Mr Sugiki (DW2) is a Director of the 1st Defendant. Apparently, in the e-mail dated 8 November 2012, Mr Sugiki confirmed as follows:

"There were many things on the wav to here. Now I can confer (with the party) (about the Poresia DealJ, (the deal) is fa deal of) sale and purchase of the land and building, member included, price is three billion Japanese yen (or Japanese Yen 3,000 million)

If you compare the market price at nearby location, I think that is cheap. Give me answer Sale and purchase of the share (or stock) is not considered"

[Emphasis Added]

[35] Then the learned High Court Judge found that PW1 (Mr Kameda Sakae, Senior Adviser with Itochu Hong Kong Ltd who acted as intermediary between the parties as DW2 cannot read or understand English) subsequently sent another e-mail dated 10 November 2012 enquiring the reasons for the change of terms in particular the sale price. Mr Sugiki replied in an e-mail dated 13 November 2012 stating inter alia the followings:

"(I) understand the proposal. But (US)$30 million is not accepted. If it I s (US)40 million, I will take it

It is land and building with members. It is cheaper than market value of nearby locations" [Emphasis Added]

[36] The learned High Court Judge further found that:

"It was through Mr Kameda that PW5 was informed that Mr Sugiki wanted to sell the golf course and suggested that