NELSON DELIVERY SERVICE LTD v. WONG KAN t/a LAP SHUN HONG TRANSPORTATION CO AND ANOTHER

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JUDGMENT

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Fuad, J.A.:

1. On 30 September this year, Macdougall J. granted interlocutory injunctions in favour of the Plaintiff company, Nelson Delivery Service Limited, against the two Defendants who, we are told, are brothers. Mr. Wong Kan and Mr. Wong Pang Fei appear to run separate firms, at different addresses, under the same name: "Lap Shun Hong Transportation Company", in English and Chinese.

2. The order made by Macdougall J. was for injunctions restraining each of the Defendants from trading or attempting to trade in the transportation and removal business under a style or name incorporating certain Chinese characters of which“立信”(Lap Shun) form a part. There were also injunctions relating to the use of advertising material with the same Chinese characters. The order granted by the judge was substantially in terms of the relief sought in the action itself. The Defendants now appeal.

3. The writ was issued on 12 September 1986 and the summons which gives rise to this appeal was taken out on the same day. The Statement of Claim was filed on 30 October. The Managing Director of the Plaintiff company is now Mr. Li wing Hang, and in his affirmation   he said that he bad been engaged in the removal and transportation business for the past 20 years and that he had acquired control of the Plaintiff company on 30 April 1986, a company which was incorporated in September 1970 by two former directors. Before the incorporation of the Plaintiff company, these two gentlemen had been carrying on the same business in partnership since 1959, using the partnership name of "Nelson Delivery Service" which is the name of the Plaintiff company with the addition, of course, of the word "Limited". The Chinese version of these trade names includes the Chinese characters“立信”(Lap Shun ).

4. In his affirmation, Mr. Li speaks of complaints that came to his ears after he had taken over the management of his company about the services they were providing, and states that upon investigation he discovered that the complaints were really not about the Plaintiff company at all but concerned the 1st Defendant trading as "Lap Shun Hong Transportation Company". He goes on to say that in December 1985, the Consumer Council exposed the name of the lst Defendant firm and the press release was picked up by a number of newspapers. The newspaper reports based on the press release made it clear that the 13 specific complaints Which had been made related only to the lst Defendant firm, and not to the Plaintiff company or to the 2nd Defendant firm.

5. Mr. Li stated that he thought at first that this exposure by the Consumer Council would cause both Defendant firms to cease business but he was proved wrong. He found out that they were going on trading when he saw the advertising cards which they had distributed, still under a title which included the Chinese characters“立信”(Lap Shun). He explained the steps he took to protect his interests, beginning with letters before action in June 1986.

6. In a second affirmation, Mr. Li stated that he had been informed by those who had been running the Plaintiff company before he took control of it that they, too, had not been aware of the Defendants' conduct (that is to say, the alleged passing-of) until the Consumer Council had issued their statement in December 1985. He said in that affirmation that the reason why the Plaintiff company had not proceeded against the Defendants immediately in December 1985, was partly due to the fact he had mentioned in his first affirmation - that he thought that the Defendants might stop trading under the names incorporating the words“立信”(Lap Shun) - but it was also due in part to the change in management of the Plaintiff company, for the new management had taken some time to familiarise itself with the Plaintiff's business.

7. Mr. Wong Kan, the lst Defendant, filed a lengthy affirmation which contains a lot of matters which one would not expect to see in an affirmation. I will return to this point shortly. He says that his firm had been registered in the Business Registration Office on 17 January 1980 under Chinese and English names which included the words“立信”(Lap Shun), and denies the allegations made against him.

8. As regards the complaints made public by the Consumer Council, he says that they were due to some of his employees who had behaved badly and who had been dismissed since the incidents had come to light. When making his affirmation, he said that 10 months had passed during which time the reputation of his business had been restored to  its former good state.

9. The 2nd Defendant, Mr. Wong Pang Fei, has been in business under the same name Lap Shun Hong Transportation Company since 1982 according to his affirmation.

10. I do not think, it is necessary to refer to the remainder of the evidence that was before the judge.

11. Mr. Hoosen, who now appears for the two Defendants, attacks the order made by the judge on the ground that he should not have granted the interlocutory injunctions in view of the delay that had occurred since the Plaintiff company knew or must have known about the alleged passing-of.

12. The learned judge dealt carefully with the matter in the oral reasons that he gave, an agreed note of which has been placed before us. He came to the conclusion, that such delay as there had been had been explained, and was not unreasonable and that in any even no prejudice had been shown to have been suffered by either of the Defendants by  reason of delay.

13. Speaking for myself, although I acknowledge that there was considerable delay, I am not prepared to say that the judge was wrong in exercising his discretion to grant the interlocutory relief despite the delay that had been shown. As regards prejudice, I accept that delay may be so long that prejudice will be presumed, but I am not persuaded that suet was the case here.

14. Mr. Hoosen also complained that the learned judge had not assessed the prospects of success that the Plaintiff company might have in pursuing their action. He based his submission on a short passage from the judgment of Sir Robert Megarry, V.-C. in the British Broadcasting Corp. v. Talbot Motor Company Limited [1981] F.S.T. 228. At page 233, the Vice-Chancellor said:

Although the learned judge did not mention the prospects of success, if this was, indeed, a case where he should have done so, I have no doubt that, had he been addressed on the point, the exercise of his discretion in favour of the Plaintiff company would have been no different.

15. Before I take leave of this case, I would draw the attention of those who advised Mr. Wong Kan in drawing up his affirmation, of the necessity to avoid contentions and arguments in affirmations of the kind that we have before us, and to limit their contents to evidence. I have in mind the remarks of Roskill, L.J. and Megaw, L.J. in Alfred Dunhill Limited and another v. Sunoptic S.A. and another [1979] F.S.R. 337. At page 352, Roskill, L.J. said, this:

16. Megaw, L. J. had this to say at page 373:

17. In appropriate cases, a judge would be perfectly entitled to order an affidavit which is full of contention and argument to be taken off the file or to strike out every paragraph that does not contain relevant material (0.41, r. 6).

18. Returning to the present appeal, bearing in mind the principles upon which an appellate court will interfere with the exercise of a judge's discretion in cases such as this, I have no doubt that the Appellants have failed to make out that the learned judge erred by acting on a wrong principle, or by taking into account irrelevant matters, or by failing to have regard to matters which were relevant. In those circumstances, in my judgment, the appeal fails.

Power, J.:

19. I concur with all that has fallen from my brother Fuad J. A.. As to delay, I see no ground at all upon which this Court could properly interfere with the exercise of the judge's discretion.

20. I agree also that as to the merits, had the learned judge considered them they would not, in any way, have deterred him from making the finding he did and giving the order for interlocutory relief.