Universe Artiste Management Ltd v. Kong Yi Ching Elanne (Formerly Known As Kwong Ling) and Another

HCA 1225/2014

[2022] HKCFI 1197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1225 OF 2014

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Before:  Deputy High Court Judge MK Liu (By Paper Disposal)

Date of Plaintiff’s Written Submissions:  19 April 2022

Date of the 1^st and 2^nd Defendants’ Written Submissions:  19 April 2022

Date of Decision:  26 April 2022

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D E C I S I O N

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1.On 18 February 2022, I handed down the judgment on liability (“the Judgment”) in these proceedings. In the Judgment, I directed the parties to try to prepare an agreed draft order in accordance with the Judgment and submit the same to the court for approval[1], and I also directed the parties to try to agree on the directions concerning the assessment of damages[2]. Unfortunately, the parties have failed to reach any agreement on these matters. That being the case, the matters have to be decided by me. The parties have lodged their respective written submissions on 19 April 2022, and I have considered the same. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

2.The order made in the Judgment should be as follows:

(1)  It is declared that:

(a)  Under the 2004 Agreement, the 2005 Agreement and the 2008 Agreement (collectively “the Contract”), the Promotion and Production Costs are to be borne by D1.

(b)  Save and except the terms set out in subparagraph (c) below, the Contract is valid and enforceable.

(c)  The following terms of the Contract are not enforceable:

(i)  §2.2(p) of the Terms and Conditions;

(ii)  the Option in Clause 9;

(iii)  the Conclusiveness Provision in Clause 5(a); and

(iv)  §9.2 of the Terms and Conditions.

(d)  By reason of the acts committed by Yeung in the Feb 2014 Incident, P has committed a repudiatiory breach of the Contract.

(e)  Notwithstanding the aforesaid repudiatory breach committed by P, the Contract has not been terminated and continued until the end of its term, ie 2 May 2014.

(f)  Notwithstanding §1.2(d) of the Terms and Conditions of the Contract, D1 is entitled to have all the incomes from her music products during the term of the Contract after deducting all the relevant expenses therefrom.

(g)  The term of the Contract is from 3 May 2004 to 2 May 2014 and has not been renewed or extended after 2 May 2014.

(2)  There be an assessment of damages in accordance with the above. For the avoidance of doubt, any proprietary claim may also be considered in the assessment exercise.

(3)  There be a costs order nisi that as to the costs up to the date of the Judgment, there be no order as to costs. Any application for variation of the costs order nisi shall be made within 28 days after the date of the Judgment.[3]

(4)  Save the aforesaid, the other claims in P’s case and the other claims in Ds’ case be dismissed.

3.For the purpose of the assessment exercise, I am of the view that the parties shall set out their respective claims by pleadings first. I make the following directions:

(1)  P do file and serve “P’s Points of Claim” within 14 days;

(2)  Ds do file and serve “Ds’ Answer to P’s Claim and Ds’ Points of Claim” within 14 days thereafter;

(3)  P do file and serve “P’s Reply to Ds’ Answer and P’s Answer to Ds’ Claim” within 14 days thereafter;

(4)  Ds do file and serve “Ds’ Reply to P’s Answer” within 14 days thereafter.

(5)  No further pleading shall be filed without leave of the court.

(6)  The parties are bound by their respective pleadings in the assessment exercise.

(7)  There be a hearing for directions before me with 2 hours reserved. The hearing date is to be fixed in consultation with counsel’s diaries and should not be earlier than 1 August 2022.

(8)  The parties shall discuss and try to agree on the directions for the purpose of the assessment exercise in the light of the pleadings filed in accordance with these directions.

(9)  Not less than 7 days before the aforesaid hearing, the parties shall submit to the court:

(a)  the agreed proposed directions;

(b)  if there is no agreement between the parties, their respective proposed directions and the written reasons in support of the proposals.

4.Costs after the date of the Judgment and up to the date of this decision be reserved.

5.Lastly, I urge the parties to try to have some amicable discussion and try to have some agreement between them. Although they may not be able to resolve their disputes by an overall agreement, they can still try to agree on some directions concerning interlocutory matters so that the dispute resolution process can proceed smoothly and efficiently. Each side has already spent considerable time and incurred substantial costs in these proceedings. Having some agreement on some interlocutory steps would certainly help the parties saving time and costs. I hope that the parties can provide me some agreed directions in future.

Written submissions by Y. K. Lau & Chu for the plaintiff

Written submissions by Tony Kan & Co. for the 1^st and 2^nd defendants