Failure to prove quantum of loss leads to a no-win situation at great cost

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Aquarius Corporation v Haribo Asia Pacific Pte Ltd [2022] SGHC(A) 39

In Aquarius Corporation v Haribo Asia Pacific Pte Ltd, the Appellate Division of the High Court of Singapore set aside the decision of the Court at first instance, substituting a damages award to Aquarius Corporation (Aquarius) of €1.7million with nominal damages of just SG$1,000.

The proceedings concerned a contractual dispute between Aquarius and Haribo Asia Pacific Pte Ltd (Haribo), with the latter commencing proceedings in the High Court of Singapore to recover amounts owing under the contract by Aquarius. Aquarius then counterclaimed for lost profits resulting from Haribo’s delay or failure to deliver certain products to it.

Both parties called on expert witnesses to give evidence, inter alia, as to the quantification of Aquarius’ counterclaim.

In the decision at first instance, Haribo was found liable to pay damages to Aquarius for lost profits up to a certain point in time.

Aquarius appealed the decision on the grounds that Haribo was liable to pay damages past the point in time determined by the court at first instance. This ground of appeal was dismissed by the Appellate Division.

Haribo also appealed the decision at first instance on multiple grounds. Relevantly, Haribo argued that Aquarius had failed to tender admissible evidence as to the quantum of its alleged loss. (The Appellate Division upheld the finding at first instance that Haribo was liable to Aquarius for breach of its obligation to deliver orders.)

Haribo had objected to the admissibility of the evidence of Ms T, the expert witness for Aquarius, on the basis that the numbers she had used to derive the loss of profits sustained by Aquarius were not supported by any primary documents properly admitted into evidence. The documents used by Ms T in formulating her calculations were comprised of both summaries and source documents. They were not produced either by the maker of the document or a witness of fact.

Aquarius submitted that Haribo’s objection to Ms T’s evidence had been made late in the day and only crystallised on Haribo’s closing submissions. Aquarius further sought to rely on the business records exception in in section 32(1)(b)(iv) of the Evidence Act 1893 (2020 Rev Ed) to say that the summaries and source documents were made in the ordinary course of business.

The Appellate Division found that the judge at first instance had erred in accepting Aquarius had proven the quantum of its alleged loss.

It was not material that Haribo’s objection was raised late in the day or crystallised only on its closing submissions. The objection was clear and unambiguous on the two occasions on which it was raised. Aquarius could have met the objection by calling a factual witness to testify to the authenticity and accuracy of the source documents relied on to support Ms T’s calculations.

Aquarius could not leave the objection standing by not taking any steps to meet it, nor could Aquarius seek to rely on the business records exception. It could not be proven that the documents on which Ms T relied upon were likely to have been prepared by an employee of Aquarius in the ordinary course of business, nor did Aquarius have an employee testifying to that. Even if Aquarius could rely on the business records exemption, some of the source documents did not appear to have been produced to the court in the first place.

The Appellate Division of the High Court set aside the initial order awarding Aquarius €1.7million, and awarded it SG$1,000 in nominal damages instead. Haribo were awarded costs in the appeal in the amount of SG$60,000.

Key takeaways

  • Computations as to damages must be established by admissible evidence.
  • Where a party’s expert is seeking to rely on material provided to them for the purposes of calculating damages, the party must adduce admissible source documents to support those calculations.
  • Failure to adduce admissible documents may undermine a party’s ability to discharge its burden of proving the quantum of damages sought.
  • The business records exemption will not apply to summaries or other documents provided to an expert which were not prepared in the ordinary course of business.

 

Read the full decision here.

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