LUSH LTD AND ANOTHER v. RED CHANNEL INTERNATIONAL LTD AND OTHERS
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HCA 2242/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 2242 OF 2012
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| BETWEEN | ||
| LUSH LIMITED | 1st Plaintiff | |
| COSTMETIC WARRIORS LIMITED | 2nd Plaintiff | |
| and | ||
| RED CHANNEL INTERNATIONAL LIMITED | 1st Defendant | |
| OCEAN FAITH INTERNATIONAL | 2nd Defendant | |
| TRADING LIMITED | ||
| TIFFANY LAU, also known as LAU MEI SUN | 3rd Defendant | |
| LUSH HONG KONG LIMITED | 4th Defendant | |
| BODY CONCEPTS LIMITED | 5th Defendant | |
| FIRST REGENT TRADING LIMITED | 6th Defendant | |
| LEGEND GLORY CORPORATION LIMITED | 7th Defendant | |
| THE FRESH HANDMADE LIMITED | 8th Defendant | |
| LUSHLY MACAU LIMITED | 9th Defendant | |
| LUSHLY MACAU 2 LIMITED | 10th Defendant |
_________________
| Before: Mr Recorder Ambrose Ho SC in Chambers |
| Date of Hearing: 28 July 2015 |
| Date of Decision: 28 July 2015 |
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DECISION
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1. I handed down my decision in this action on 17 June 2015.
2. I granted leave to the plaintiff to amend the Statement of Claim. The amendment was to add a head of claim for damages arising from the 1st and/or 3rd defendants’ breach of clauses 7.2 and 21 of the Agreement. In the same decision, I granted summary judgment in favour of the plaintiff on liability for such breach and directed damages to be assessed. I also dismissed the defendant’s counterclaim.
3. The order for amendment of the Statement of Claim was perfected and sealed on 15 July 2015. In the order, no direction was given to the defendants to further amend their Amended Defence and Counterclaim.
4. I am not satisfied that it is now appropriate to re‑open the matter as to consequential amendment to the Amended Defence. I do not consider that this can be accommodated under Order 20, rule 11.
5. Also and in any event I accept the plaintiffs’ submissions that, given the direction for assessment, the formulation of the defence as regards the question of quantum should be dealt with on the case management summons to be taken out for the purpose of the assessment: see Order 37, rule 4.
6. I also note, in passing, that despite the defendants’ contention that they should not be deprived of the opportunity to put in consequential amendments, the purported Re‑Amended Defence and Counterclaim (filed without leave) does not actually contain any amendment of substance.
7. For the reasons above, even if Order 20, rule 11 were applicable, I would not have acceded to the defendant’s application.
8. I would therefore dismiss the defendants’ summons of 13 July 2015. The Re‑Amended Defence and Counterclaim filed and served (without leave) should be set aside.
9. The costs of the application, assessed at $22,000, are to be paid by the defendants to the plaintiffs forthwith.
| (Ambrose Ho SC) | |
| Recorder of the Court of First Instance | |
| High Court |
Mr Anthony Tong, of Robin Bridge & John Liu, for the 1st and 2nd plaintiffs
Ms Wanda Tong, of Wanda Tong & Co, for the 1st to 10th defendants