J.E.T. JUDICIAL EXTERNAL TRADING S.A v. OMTIS LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff by counterclaim (described herein as the plaintiff) seeks damages from the second defendant by counterclaim (the 2nd defendant) for a contribution to promotional expenses for certain products of the 1st defendant by counterclaim. Interlocutory judgment was granted against the second defendant on 9th January 1990 and this hearing is pursuant thereto.

2. Documents were filed under two hearsay notices, and Mr. Swaine for the plaintiff handed in a bundle in that regard. The second defendant was in default at today's hearing, as indeed it has been throughout.

3. Mr. Swaine drew the court's attention to various documents in the hearsay bundle, of which pages 29 and 31 are of particular significance. Page 29 records a meeting between representatives of the plaintiff and 2nd defendant companies, at which the 2nd defendant's obligations were defined in Swiss Francs. Payments were to be in two stages, on 15th September 1987 and 31st December 1987 respectively.

4. Page 31 sets out the breakdown of promotional expenses, with the 2nd defendant's liability stipulated at 50% of the total, less credits given by the plaintiff for supplies of promotional material. The exchange rate was fixed at HK$5.10 for Swiss Francs 1.00 and the figures provided are precisely reflected in the counterclaim. If further proof were needed, invoices from Publicitas Ltd., a Hong Kong advertising agency, are produced at pages 7 to 26 of the hearsay bundle and disclose the plaintiff's detailed promotional expenditure.

5. I am satisfied from these documents that the claim is proved and award the sum claimed of $HK171,413.60. Interest will run at the judgment rate until payment from the respective dates stipulated in the meeting described at page 29 of the bundle. That is to say, on a converted figure of HK$51,000.00, from 15th September 1987, and on a converted figure of HK$120,413.60, from 31st December 1987.

6. As to costs, Mr. Swaine argues for an award on the common fund basis to reflect the 2nd defendant's default throughout the proceedings. The usual party and party award is argued to represent an inadequate compensation for the plaintiff's expense in securing its judgment against an overseas defendant. I accept this view and costs are duly awarded on the common fund basis.