R J MODELS (HK) LTD v. TSUI WAI KUEN AND OTHERS

HCA 617/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 617 OF 2008

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R U L I N G

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1.  On 22 April 2008, the Plaintiff issued the Summons which is presently before me.  Paragraph 1 of the Summons asks for:

“An interim injunction be granted prohibiting the 1^st Defendant whether by himself, his agents or servants or representatives or otherwise from establishing and/or continuing to establish and/or run and/or manage and/or in any way having an interest in any competing business or trading entity which is or is likely to be in competition with the Company’s principal business of the selling and/or manufacturing architectural construction models.”

2.  The Summons was returnable before the Judge on 6 May 2008. On that day, the matter went before Deputy High Court Judge Gill who gave directions regarding the filing of further evidence.  He gave leave to the 1^st to 3^rd Defendants to file and serve affirmations in opposition within 14 days from the day thereof.  He also gave leave to the Plaintiff to file and serve affirmations in reply within 14 days thereafter.  He further ordered that no further affirmation could be filed without leave of the court.

3.  Pursuant to the Order of Deputy High Court Judge Gill, the parties filed and served their affirmation evidence respectively cumulating in the affirmation of Huen Ho Yin filed on 20 May 2008.

4.  On 21 July 2008, the Plaintiff filed the 2^nd affirmation of Cheung King Chung, Ray.  This was obviously filed without leave of the court and therefore in contravention of the Order of Deputy High Court Judge Gill.

5.  This morning, Mr Kwok, counsel for the Plaintiff, applied to me for leave to refer to the 2^nd affirmation of Cheung King Chung, Ray.  He submitted that this latest affirmation deals with two matters.  First, it answers some of the points made in the affirmations filed by the other side in May and secondly it leads evidence about the 1^st Defendant setting up other corporate entities to carry on business in competition with the Plaintiff.

6.  According to the latest affirmation, Mr Cheung, the deponent, discovered in the beginning of May 2008 at a Realty Exhibition in Dubai that the 1^st Defendant and the 3^rd Defendant were distributing catalogues to visitors and those catalogues bore the names of other companies which were in the same business.

7.  In paragraph 2 of that affirmation, the deponent said that he realised that the affirmation was being filed out of time.  He goes on to say:

“This is so because I have been mostly away from Hong Kong on business trip throughout the past month or so and have not had enough time to provide proper instructions to my solicitors for the preparation and swearing of this affirmation until now.  I apologise for the delay and respectfully ask the Court to grant leave for late filing of this affirmation.”

8.  Mr Chung on behalf of the Defendants objects to the Plaintiff’s application.  He says that the affirmation raises a lot of new matters.  He has had no time to take instructions and after he has taken instructions he will need to file affidavit evidence in reply.

9.  Having read this latest affirmation, I take the view that it contains evidence which is relevant to the subject matter of the Summons issued on 22 April 2008.  In the exercise of my discretion, I allow the Plaintiff to refer to this affirmation because it will enable the parties to have all relevant matters properly argued before the court.

10.  On the other hand, I appreciate the difficulty which the Defendants face in light of this latest affirmation.  To be fair to the Defendants, they must be allowed to put in evidence in reply.  As Mr Chung has indicated, he will need an adjournment in order to take instructions and to reply to this affirmation.  Accordingly, I also grant Mr Chung’s application for an adjournment of these proceedings.