Castlemil Infant (HK) Supplies Co Ltd v. Care N Love Development Ltd

DCCJ 5744/2018

[2018] HKDC 1580

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5744 OF 2018

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DECISION

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Background

1.On 17 December 2018, the plaintiff issued the writ of summons herein and took out an inter partes summons (“the summons”) seeking an interlocutory injunction against the defendant.

2.The plaintiff and the defendant here are also the plaintiff and the defendant in DCCJ 5061/2018.  The plaintiff commences this action against the defendant on 17 December 2018, also in relation to the matters arising from the termination of the agreement between the parties in late September 2018.  The background facts concerning the agreement and the termination of the same have been set out in a decision in DCCJ 5061/2018 pronounced on 16 November 2018^[1] (“the Decision”), and I shall not repeat the same herein.  For ease of reference, the abbreviations used in the Decision are also adopted here.

3.The indorsement of claim on the writ of summons is as follows:-

(1)   An order/injunction that the defendant whether by itself and/or by its servants or agents, do deliver up, within 72 hours, the Kendamil’s milk products of the plaintiff as set out in the schedule annexed to the writ (“the Products”);

(2)   An order/injunction to restrain the defendant whether by itself and/or by its servants or agents, or howsoever otherwise from tempering with the contents of the Products;

(3)   Or in the alternative to (1) and (2) above, damages for breach of the agreement and/or the tort of conversion and/or wrongful interference at HK$28,941.03;

(4)   Costs; and

(5)   Such further and/or any reliefs as this Court deems fit.

4.In the summons, the plaintiff claims an interlocutory injunction in terms of paragraphs (1) and (2) of the indorsement of claim on the writ.

Analysis

5.According to the evidence produced by the plaintiff, after the termination of the agreement, the defendant sent 3 Goods Return Statements to Tseung Kwan O, Kwai Fong and San Po Kong shop of YATA respectively requesting to return the Products to the defendant.  The plaintiff came to know these in late November 2018.

6.The plaintiff demanded the defendant to return the Products to the plaintiff, but there was no meaningful reply from the defendant.  Thereafter, the plaintiff commenced this action against the defendant and also sought an interlocutory injunction by the summons.

7.I must say that the plaintiff’s application for an interlocutory injunction is devoid of any merit.

8.It is trite that if damages would be an adequate remedy if the plaintiff succeeds at the trial, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appears to be^[2]. As set out in the indorsement of claim, the remedies being claimed by the plaintiff is a permanent injunction in terms of paragraphs (1) and (2) of the indorsement, or damages in the sum of HK$28,941.03.  In other words, it is the plaintiff’s own case that damages of HK$28,941.03 would be an adequate remedy if the plaintiff succeeds at the end of these proceedings.  The amount of damages claimed is a modest sum.  There is no reason to say that the defendant would not be able to pay this sum together with interest if there is a trial and the plaintiff succeeds in the trial.  In these circumstances, there is no reason to grant the interlocutory injunction sought by the plaintiff.

9.Since there is no merit in the plaintiff’s application, I would not require the defendant to file any evidence in opposition to the summons and would dismiss the summons now.

Disposition

10.I dismiss the summons.

11.Costs should follow the event. The plaintiff’s application is bound to fail.  Even based upon the plaintiff’s own case and own evidence, the application would not succeed.  This is an unmeritorious application and should not be made in the first place.  In these circumstances, it would be appropriate to order indemnity costs against the plaintiff.  I order that costs of the summons be to the defendant forthwith on an indemnity basis.  Those costs are summarily assessed at HK$45,000.

Epilogue

12.Litigation is time consuming and expensive.  The plaintiff is only claiming for the return of the Products or HK$28,941.03.  The parties should try to resolve the dispute between them by negotiation and mediation.  If for some reason this litigation must continue, the court may consider transferring this case to the Small Claims Tribunal in due course.

Mr Chris Ng, instructed by Ng, Au Yeung & Partners, for the plaintiff

Ms Jennifer Li of Robertsons, for the defendant