MAJORETTE HONG KONG LTD v. FULLMORE CORPORATION LTD

HCA 1583/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1583 OF 2008

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REASONS FOR DECISION

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1.  HCA 1583/2008 and HCA 1599/2008 have been ordered to be tried by the same judge.  The defendant in HCA 1583/2008 has taken out a summons for leave to adduce expert evidence at the trial, which the plaintiff opposes on the ground that the expert evidence intended to be produced is irrelevant to the issues for the trial.

2.  In the summons the defendant intends to adduce expert evidence on the following issues:

(1)	the nature and legal status of Fullmore Products (Shenzhen) Limited under PRC law;
(2)	the PRC legal framework in relation to the management of Fullmore Products (Shenzhen) Limited;
(3)	the relationship between Fullmore Corporation Limited and Fullmore Products (Shenzhen) Limited, particularly in relation to whether Fullmore Corporation Limited is liable for the liabilities of Fullmore Products (Shenzhen) Limited.

3.  The plaintiff’s claim against the defendant in this action is for the return of the toys moulds delivered to Fullmore Products (Shenzhen) Limited, which is wholly owned by the defendant, under an agreement made between the plaintiff and the defendant.  The plaintiff subsequently said that the defendant was in breach of the agreement and demanded the return of the moulds delivered to Fullmore Products (Shenzhen) Limited.

4.  The defendant’s defence to this claim is that the moulds were delivered to Fullmore Products (Shenzhen) Limited, not the defendant and the defendant is not in possession of the moulds in question.  Those are the reasons that the defendant is not liable to the plaintiff for the moulds.

5.  I have asked Mr. Yan, the handling solicitor of the defendant’s case whether the defendant has raised the issue that the moulds that the plaintiff delivered to Fullmore Products (Shenzhen) Limited was under another agreement between the plaintiff and Fullmore Products (Shenzhen) Limited.  Mr. Yan says that the defendant does not raise this defence in the Defence.  Mr. Yan has also said that the defendant does not say that the plaintiff had delivered the moulds to Fullmore Products (Shenzhen) Limited by mistake.

6.  On the pleadings and submissions from the solicitors before me today, I accept Mr. Hanusch’s argument that the intended expert evidence is not relevant to the issues in dispute between the parties.  Mr. Hanusch further submits that the plaintiff has never disputed that Fullmore Products (Shenzhen) Limited is a separate legal entity from the defendant, which is not an issue in the pleadings.

7.  The burden is on the defendant to show that the intended expert evidence is relevant to the issues in dispute.  The defendant is unable to show even a prima facie case in support of his application.  I dismiss the summons with costs.  There is another summons for the same application taken out by the defendant for HCA 1599/2008.  For the same reason, I dismiss the summons for HCA 1599/2008 as well.

8.  As to costs of these applications, Mr. Yan has no objection to Mr. Hanusch’s proposal of $1,200.00 for each case, totally $2,400.00 to be paid by the defendant within 14 days from the date hereof.  I so order.

Mr. D. Yan of Messrs. Chong & Partners for Defendant.

Mr. P. Hanusch of Messrs. Deacons for Plaintiff.

HCA 1583/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1583 OF 2008

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DECISION ON COSTS

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1.  On 20 February 2009, I made a decision dismissing the Plaintiff’s application by summons dated 13 October 2008 for inspection of the moulds specified in Appendix A of the Statement of Claim under Order 29 Rule 2 of the Rules of the High Court, and ordered that the Defendant was to have the costs of the application in any event.  The order as to costs was an order nisi.

2.  The Defendant has made an application to vary the costs order nisi such that the Plaintiff should pay the Defendant’s costs forthwith and that there should be a gross sum assessment of the Defendant’s costs.  The Plaintiff has also made an application to vary the costs order nisi such that the Defendant should pay the costs of the Plaintiff or, in the alternative, there should be no order as to costs.

3.  For the reasons set out in paragraphs 7 to 12 of my Decision on Costs given in respect of similar applications made in Simba-toys (Hong Kong) Limited v Fullmore Corporation Limited, HCA 1599/2008 (save that there is no issue about the Plaintiff’s locus standi to sue in this action), both applications are dismissed.  The costs order nisi is made absolute.  I make no order as to the costs of these applications to vary the costs order nisi.

HCA 1583/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1583 OF 2008

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D E C I S I O N

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1.  There is before the court the Plaintiff’s application by summons dated 13 October 2008 for inspection of the moulds specified in Appendix A of the Statement of Claim under Order 29 Rule 2 of the Rules of the High Court.

2.  At the commencement of the hearing, Mr Shaw on behalf of the Plaintiff informed the court that the parties were agreed that they would abide by the outcome of a similar application before the court in SIMBA-TOYS (HONG KONG) LIMITED v FULLMORE CORPORATION LIMITED, HCA 1599/2008, listed for hearing at the same time.  No separate submissions were made by the parties relating to this application.

3.  For the reasons set out in the Decision in HCA 1599/2008 to be handed down on the same date as the handing down of this Decision, I dismiss the Plaintiff’s summons with costs to the Defendant in any event.  Since I have not heard the parties on the issue of costs, I shall make it an order nisi, with liberty to the Plaintiff to apply to vary the order as to costs within 14 days from the date of handing down of this Decision.