VON BESCHERER, MATHIAS KURT v. SUBRA INTERNATIONAL LTD AND ANOTHER

HCA3201/2003 &
HCA3834/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3201 OF 2003

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(Consolidated pursuant to the Order of Master B. Kwan dated 20 February 2004)

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REASONS  FOR  DECISION

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1. This is an appeal against a master’s refusal to grant the plaintiffs’ application for leave to re-amend its statement of claim.  Both before the master and on appeal the 2^nd defendant has taken no objection to the proposed amendments.  The 2^nd defendant has made no appearance at either hearing. 

2. In short the claim is for breach of a contract of employment between the plaintiffs and the 1^st defendant and breach of fiduciary duties.  It is claimed that whilst in the plaintiffs’ employ the 1^st defendant engaged in business with the plaintiffs’ customers for his own profit. 

3. The amendments sought are short.  They are as follows : (amendments in italics)

“	9.	On divers dates between 29th January 2000 and 25th March 2003, in breach of his fiduciary duties, the 1st Defendant used his position with the 1st and/or 2nd Plaintiff, and in particular used the 1st and/or 2nd Plaintiff’s confidential information, accounting and other resources to :
		(1)	place, cause or procure the placing of a substantial volume of orders of for goods on behalf of the 2nd Defendant to suppliers of the 1st and/or 2nd Plaintiff or to such suppliers’ associates; and/or
		(2)	sold sell or caused or procured the sale of the goods so ordered or other goods through the 2nd Defendant to customers of the 1st and/or 2nd Plaintiff
		with all or some of the proceeds of sale of the such goods being received by the 2nd Defendant.”

4. At the conclusion of the hearing, I allowed the appeal.  These are my brief reasons for so doing. 

5. There are three relatively minor amendments.  I shall deal with each separately.  

(1)     “… used his position with the 1^st and/or 2^nd Plaintiff …”

6. The 1^st defendant complains that there are insufficient particulars as to how it is said that he “used his position…”  It should therefore be disallowed. 

7. I regard the amendment as mere clarification of the issue to be tried.  No new “use” is pleaded.  The manner in which he used his position is as already pleaded.  The 1^st defendant knows that the case against him is that in his capacity as managing director of the plaintiffs he used confidential information, accounting and other resources.  For pleading purposes I do not agree that the pleading lacks particularity and should therefore be disallowed.  

(2)     “… or to such suppliers’ associates; …”

8. The plaintiffs’ solicitors, through correspondence, have fully explained this amendment to the 1^stdefendant’s solicitors.  It is clear that the best particulars available have been provided.  There would be no useful purpose in pleading the particulars disclosed in correspondence into the statement of claim.  Moreover, it is possible that a proper discharge of the 1^st defendant’s obligation on discovery may widen the ambit of the plaintiffs’ claim.  It would be unjust to restrict the plaintiffs’ claim at this stage by refusing the requested amendment. 

(3)     “… or other goods …”

9. This amendment merely clarifies that the plaintiffs’ claim is not restricted to goods sold by the 1^st defendant to the plaintiffs’ customers which were goods sourced from the plaintiffs’ suppliers.  They could be goods sourced from elsewhere as well.  The 1^st defendant is (as in (2) above) being informed of the ambit of the case against him.  The present particulars, prior to discovery, are the best that can be provided, and have been provided. 

Costs

10. To avoid a costs nisi order both parties were invited to make their submission on costs.  I therefore make a final order. 

11. The costs of and occasioned by the amendments be to the 1^st defendant in any event.  The costs of the hearing, here and below, be to the plaintiffs in any event.