XCHRX BINARY EVOLUTION COMPUTERS LID. v. SUPREME DAY COMPANY LIMITED and Others

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST
No. CL198/1995

-----------------

-----------------------

J U D G M E N T

-----------------------

Findlay, J.:

1. The plaintiff is seeking further particulars of the defendants' defence. Certain of these were supplied yesterday, but the plaintiff is pressing for an order that the defendants supply some that they have declined to provide. I will deal with each of the particulars sought.

Request 1

2. The points of claim allege that the first defendant owns and operates Neway Karaoke Box (Neway), that the second defendant holds a lot of shares in the first and third defendants, that the fourth defendant managing director of all three companies, and the operation of Neway is conducted by the fourth defendant by the use of the corporate defendants.

3. The defence denies that the first defendant owns or operates Neway, and says that Neway is operated by the third defendant.

4. The plaintiff wants to know which of the defendants is said to be the leaseholder of Neway, and the owner of the property used for the purposes of trading as Neway.

5. In my view, the defence fairly answers the points of claim. The points of claim make no allegations about the lease and ownership of property used by Neway so the defence does not need to deal with the points in the absence of these allegations. Mr Donegan says the plaintiff wants to know what the defendants mean by the use of the word "operate". The answer to that is that they mean what the plaintiff means by the use of the same word.

Request 2

6. The points of claim say that the plaintiff had the exclusive right to licence the system called AKS.

7. The defence denies this. Elsewhere in the defence, it is said that the defendants deny that the plaintiff was the owner of the copyright or other rights in AKS or its source codes and/or programmes.

8. The plaintiff asks why the defendants say the plaintiff does not have this exclusive right, and which of the defendants it is said does have a licence or right to use AKS.

9. The particulars supplied say that the plaintiff does not own the exclusive right because it does not own the intellectual property rights in AKS. The defendants decline to say which of the defendants does have a licence or other right. I do not think the plaintiff is entitled to this particular. The defendants do not say that they have a licence or right, and, therefore, are not obliged to supply particulars of something they have not alleged.

Request 4

10. The plaintiff alleges that two named people have been involved in the development of AKS; one since its development commenced in April.

11. The defence says that no admissions are made about this, but says that the development of AKS and the component codes and programmes commenced in September.

12. The plaintiff wants to know the defendants' case as to the component codes and programmes, and which are averred to be part of AKS.

13. The defendants do not make any case as to the component codes and programmes other than that stated. Again, I do not think the plaintiff can require the defendants to plead particulars of something that is not part of their case. Their case is that the development commenced in September, not April; that is all.

Request 5

14. The plaintiff makes averments about the demonstration and installation of AKS.

15. The defence says that a system in development called AAKS was demonstrated and a final version of AAKS was delivered and installed in Neway.

16. The plaintiff asks the defendants to specify in detail the differences between the system in development and the final version, and what the defendant means by "developed".

17. The plaintiff's case is about AKS, and the defendants' case is that AAKS is not AKS. I do not see how the differences between the stages of an allegedly different system are relevant.

Request 6

18. The plaintiff makes allegations about what happened in another action involving AKS, including that certain people made admissions.

19. The defendants say that they do not admit this, but deny that the admissions bind them or are relevant.

20. The plaintiff wants the defendants to be more specific about this allegation.

21. The defendants were not parties to that other action, and I do not see why the plaintiff can expect them to be specific about something that in which they were not involved.

Request 7

22. The defence specifically states its case the rights in AKS. It says that they belong to Treasure Area Limited because AKS was commissioned and paid for by that company.

23. The plaintiff asks why the rights vest in Treasure Area Limited.

24. The defendants says they have already made their allegation about this, and indeed they have. If the plaintiff says that the averments are not good in law, it has its remedy.

Request 10

25. The plaintiff alleges that the defendants knew, or had reasonable grounds to suspect, that AAKS infringed the rights in AKS, and pleads particulars of this.

26. The defendant denies that the fourth defendant and someone called Mr Pang knew certain specific matters. It is difficult to know just what the plaintiff wants here, but as I understand Mr Donegan, regarding an allegation that the fourth defendant and Mr Pang knew something was not possible, they want to know if the defendants are saying it was not possible, but the fourth defendant and Mr Pang did not know this, or that it was possible.

27. The plaintiff's allegations are about knowledge, not what was or what was not possible. The defendants deny that knowledge. In my view, that is sufficient

Result

28. In my judgment, the plaintiff is not entitled to any of the particulars that it insisted upon. The amended summons is dismissed. As to costs, it seems to me that the plaintiff is entitled to its costs up to the receipt of, and including consideration of, the particulars supplied yesterday. The costs of the hearing, however, should go to the defendant. I make an order nisi accordingly.