Tok v Rashazar

The appeal in *Tok v Rashazar* concerned a dispute arising from a contract for the sale of shares. The primary judge had assessed damages by reference to lost expenditure, and the respondents sought to file a notice of contention. The Court of Appeal, comprising Payne, Kirk and Stern JJA, ultimately dismissed the appeal.

The legal issues before the Court of Appeal included whether the primary judge erred in assessing damages by reference to lost expenditure, particularly where the breach of contract resulted in uncertainty or difficulty in proving loss. Further, the court considered whether it was appropriate to assess damages by reference to events that occurred after the breach, given that the purchase price had been paid but the shares were not transferred, and the respondents were unaware of this non-transfer. The court also considered the applicability of restitutionary principles, specifically the subsidiarity principle, in circumstances where the parties' relationship was governed by a valid contract.

The Court of Appeal found no error in the primary judge's approach to assessing damages by reference to lost expenditure, acknowledging that this method can be appropriate where a breach leads to uncertainty in proving loss. The court also held that it was permissible to consider events occurring after the breach when assessing damages, as the respondents' lack of awareness of the non-transfer of shares did not preclude such an assessment. Furthermore, the court determined that a restitutionary claim was not precluded by the existence of a valid contract, as it did not undermine the parties' agreed allocation of risk under the contract, thus upholding the subsidiarity principle.

The appeal was dismissed, and the appellants were ordered to pay the respondents’ costs of the appeal and of the notice of motion. Leave was granted to the respondents to file a notice of contention.