Peh Swee Chin SCJ:

This is an appeal against an assessment of damages in respect of a vendor who failed to deliver goods to the buyer. An acquaintance with a brief history and material facts leading to this appeal will be essential.

The appellant, (hereafter the "said vendor"), was sued by the respondent, (hereafter the "said buyer"), for failure to deliver 24 units of heavy construction equipment such as "truck cranes", "pile drivers" etc. (hereafter the goods in question wherever it is appropriate) for specific performance of agreement to sell and deliver the goods in question, general damages for breach of contract and for damages, specifically, for loss of agency to sell for the said vendor, other units of similar equipment left at the said vendor's "yard" in Kapar, Port Klang. The claim was disputed by the said vendor who counter-claimed also for work done and materials supplied. The action was tried and the learned Judge found against the said vendor. The learned Judge discretionally declined however, to grant specific performance, but instead, awarded damages for breach of contract and costs to the said buyer, dismissing at the same time the counter-claim of the said vendor, with costs.

From the learned Judge's decision, an appeal was lodged against it to the Supreme Court which dismissed the appeal and confirmed the decision of the learned Judge, upholding the learned trial Judge's order for the said vendor to pay the said buyer,

(a) general damages for breach of contract to be assessed and (b) for damages "on the loss of agency rights" over the other units of equipment at Kapar.

The damages fell to be assessed by a Registrar of the High Court.

In the event that has turned out, the learned Registrar assessed the damages as follows:

(1) Loss of profit at RM1,766,429. (2) Loss of sale commission at RM150,000 (in respect of loss of agency rights). (3) "Loss of opportunity" at RM456,000.

On appeal by the said vendor before the learned trial Judge, the damages aforesaid were confirmed except that the loss of sale commission was reduced from RM150,000 to RM120,000.

On further appeal by the said vendor before us against the award of all damages as assessed, the part of the appeal as related to loss of sale commission was abandoned, while the appeal against the other 2 heads as stated above, was vigorously pursued.

On the award for the loss of profit, for the purpose of this judgment, it will not be necessary to set out the details of the evidence which pre-occupied a great deal of time of the learned Registrar apart from saying, that out of the goods in question and agreed to be sold, namely 24 units of the equipment, the said buyer had resold, after agreement of sale and purchase but before delivery of the same to the said buyer, 15 of them to other sub-buyers leaving 9 units remaining unsold. The loss of profit was arrived at RM1,766,40 by deducting the original purchase price agreed by both parties from a combined figure of proceeds of sub-sales of 15 units sold by the said buyer before delivery and the total value of the unsold 9 units as given by PW1 the said buyer's chief executive officer in his evidence in March 1990 before the learned Registrar as the value or price (as in March 1990) at which he could have sold and realized. The value or price he gave was higher than the fair market value fixed by an appraiser who was called by the said buyer itself as a witness, on the remaining unsold 9 units as at 1 February 1989, a date adopted by the appraiser at the request of the said buyer. The appraiser of the said buyer in his report gave the fair market value at RM1,509,000 as the value as at 1 February 1989, a figure lower than RM1,700,000 claimed by the said buyer's chief executive officer in evidence.

It will be pertinent to refer to such evidence or findings of the learned Judge who tried the main case in so far as they are relevant to the instant appeal before us. The learned Judge found that the d