Read the full judgment text of CACV 236/2000 on BabelCite. This Court of Appeal judgment was delivered on 5 February 2001 before Leong CJHC and Woo JA.
Civil procedure – consent order – extension of time – contractual undertakings – trade marks – costs – contempt of court – family dispute over the 'Hoi Tin Tong' (海天堂) trademark for medicinal tortoise jelly – sister and her husband (Leung Yee and Ng Yuk Kin) and brother and his wife (Ng Yiu Ming and Chiu Fung Yi), who are paternal cousins – two consolidated actions HCA 7462/1998 (partnership and passing off dispute) and HCMP 1730/1999 (trade mark rectification) – consent order of 11 June 1999 settling the disputes – Further Undertaking by sister and her husband to add words 'Ng Yuk Kin' or 'production supervised by Ng Yuk Kin' or 'production supervised by big sister' or '吳玉娟' or '大家姐' to signboards and advertising materials within one month – brother and his wife undertook similar obligations and to purchase shares in Regent Lake Investment Limited for HK$6,500,000 upon compliance – sister and her husband brought summons on 13 October 1999 seeking declaration of compliance and order for payment – Deputy Judge Wong dismissed summons on 8 November 1999 finding non-compliance with Further Undertaking regarding signboards – sister and her husband brought further summonses on 27 March and 25 May 2000 seeking extension of time to comply – Beeson J granted extension on 16 June 2000 with costs against sister and her husband but not on indemnity basis – appeal to Court of Appeal – first issue: whether court has power to extend time for compliance with an undertaking in a consent order evidencing a real contract – Held: yes; under Order 3, rule 5 of the RHC, court has power to extend time unless it is plain that time is of the essence or the jurisdiction is ousted by agreement – Siebe Gorman, Tigner-Roche, and Lee Hung Yam applied – 'liberty to apply' provision in paragraph 9 of consent order supports jurisdiction – second issue: whether Beeson J exercised her discretion wrongly in granting extension – Held: no; the discretion was properly exercised – new evidence showed sister and her husband had acted on legal advice – non-compliance did not deprive brother and his wife of substantially the whole benefit of the contract – brother and his wife were enjoying benefit of trade mark registration under paragraph 6 without paying HK$6,500,000 – allowing them to retain benefits without payment would be unconscionable – substantive appeal dismissed – third issue: whether costs of summonses should be on indemnity basis – Held: yes – Beeson J erred in failing to take into account the long period of non-compliance between 8 November 1999 and May 2000 and the 'lame excuse' explanation – appeal on costs allowed – costs of summonses ordered on indemnity basis – respondents awarded three-quarters of their costs of the appeal – costs to be set off against costs of the summonses
Legal issues: Court's power to extend time for consent order undertakings · Exercise of discretion in granting extension of time · Indemnity costs for non-compliance with undertaking
Outcome: Substantive appeal dismissed; appeal on costs allowed
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