LUSH LTD AND ANOTHER v. RED CHANNEL INTERNATIONAL LTD AND OTHERS

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

_________________

_________________

________________

DECISION

________________

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 1^st and/or 3^rd 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.