HAU'S LEATHER GOODS LTD v. CARTO LEATHERWARE CO LTD AND ANOTHER

HCA1325/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1325 OF 2006

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DECISION  (NO. 2)

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1. This decision should be read with the earlier decision that I handed down on 23 July 2007.

2. Pursuant to my direction, the parties have filed their submissions on the form of order and costs.  I do not propose to dwell on their submissions.  Suffice it to say that I have already considered them fully and carefully.

3. I note that the defendants have proposed to amend the Defence and Counterclaim as per the draft attached to counsel’s submissions.

4. As I have observed earlier, there are deficiencies in the Defence and Counterclaim.  But I think they can be cured by way of amendment.  It is therefore not an appropriate case to strike out : see Hong Kong Civil Procedure 2007, Vol. 1, para. 18/19/4 at p. 334.

5. On the costs of the plaintiff’s summons dated 1 February 2007 (the “Summons”), I agree entirely with Mr Shipp’s submission on this point, namely, they should be in the cause and a certificate for two counsel is not justified.

6. On the costs of the amendment, the normal rule applies and the plaintiff shall bear the same.

7. Accordingly, I will make the following order :

(1)     the Summons be dismissed;

(2)     costs of the Summons including the costs of the hearing on 6 July 2007 be in the cause and for avoidance of doubt, there will be a certificate for one counsel only; and

(3)     leave to the defendants to file and serve within 14 days the Particulars of Objection and to amend the Defence and Counterclaim as per the drafts annexed to counsel’s submissions with costs of and occasioned by the late filing of the Particulars of Objections and the amendments be to the plaintiff in any event, to be taxed if not agreed.