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Issues: (i) whether the plaintiff was ready and willing to perform his part of the contract and was therefore entitled to insist on delivery without a separate cash tender; (ii) whether the suit was barred by limitation or whether the time spent in the winding-up claim proceedings could be excluded; and (iii) whether the amounts awarded for export duty, late delivery and non-delivery were recoverable and correctly quantified.
Issue (i): whether the plaintiff was ready and willing to perform his part of the contract and was therefore entitled to insist on delivery without a separate cash tender
Analysis: The contract and the correspondence showed that delivery depended on manufacture and availability of the goods under export-control restrictions. The plaintiff repeatedly called for delivery, made the required deposit, and on being informed that goods were ready, paid the balance and accepted the goods. The defendants themselves delayed delivery and expressed inability to supply the balance. In those circumstances the plaintiff remained ready and willing to pay against delivery, and a further cash tender was not necessary.
Conclusion: The issue was decided in favour of the respondent-plaintiff.
Issue (ii): whether the suit was barred by limitation or whether the time spent in the winding-up claim proceedings could be excluded
Analysis: In a claim against a company in winding up, the date of institution is advanced, for limitation purposes, to the date when the claim is first lodged before the official liquidator. The claim lodged with the liquidators was also treated as a civil proceeding prosecuted in good faith and later found incapable of summary disposal, so the interval spent in those proceedings was liable to be excluded under the limitation law. On that basis, the suit filed later was within time.
Conclusion: The issue was decided in favour of the respondent-plaintiff.
Issue (iii): whether the amounts awarded for export duty, late delivery and non-delivery were recoverable and correctly quantified
Analysis: The plaintiff had, by agreeing to extend the time for performance, waived the right to treat the export duty as recoverable damages for the belated acceptance of goods. The claim for damages for late delivery also failed because the belated delivery was accepted in the circumstances described and the right to such compensation was held to have been waived. As to non-delivery of the balance quantity, damages had to be assessed on the ordinary contractual measure, namely the market rate at the date of breach, but the export-duty element could not be included again. The decree therefore required reduction to the amount proved on that footing.
Conclusion: The issue was decided partly in favour of the appellant-defendants and partly in favour of the respondent-plaintiff.
Final Conclusion: The decree was reduced substantially, with the respondent-plaintiff retaining only the reduced sum awarded on the non-delivery claim and with no separate recovery for export duty or late-delivery damages.
Ratio Decidendi: In a suit against a company in winding up, the lodging of the claim before the official liquidator may be treated as the relevant institution date for limitation purposes, and damages for breach of a sale contract are to be measured by the ordinary contractual loss at the date of breach, subject to waiver and exclusion of items not legally recoverable.
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