XCHRX GEAR ATELIER LTD. v. CARLTON MANUFACTURING CO. LTD.

HCA 6993/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6993 OF 2000

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J U D G M E N T

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1. This is an appeal against the decision of Master Jones given on 8 May 2001. On that day the master gave leave to the plaintiff to re-amend the amended statement of claim. He also gave directions for the filing of further pleadings and ordered that fixed costs in the sum of $800.00 be to the defendant in any event.

2. It has been submitted that the master should have given leave on condition that the plaintiff should pay the defendant the costs to date of the amendment with a stay until payment alternatively, it is said that leave should only have been granted with all costs of and occasioned by the re-amendment to be given to the defendant in any event.

3. The re-amended statement of claim gives full particulars and pleads further matters in relation to infringement of copyright. The causes of action originally pleaded were infringement of copyright and passing off. By the re-amended statement of claim the infringement of copyright is still maintained but the cause of action in passing off has been abandoned. I do not regard the re-amended statement of claim as such a substantial amendment as to justify the order that the defendant seeks. I am not persuaded that the master should have given leave only on condition of payment of the defendant's costs to the date of the amendment and that he should have ordered a stay until payment.

4. On the question of costs, I do not think that the master has exercised his discretion in a way which this court should overrule. The matter of costs was, of course, for the master to decide and he ordered fixed costs in the sum of $800.00. I am not persuaded that he was wrong to do so. The appeal is dismissed. Costs to the plaintiff.