Hayward Industries, Inc. v. Ningbo C.F. Electronic Tech Co., Ltd and Others

HCA 2340/2024

[2025] HKCFI 2350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2340 OF 2024

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DECISION_

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I. INTRODUCTION

1.On 25 November 2024, the Plaintiff was granted ex parte a Mareva injunction order (the “Injunction Order”) restraining each of the 1^st, 2^nd and 3^rd Defendants from removing their assets up to the value of US$7,888,405.25 and requiring the Plaintiff to make certain disclosure in aid of the Injunction Order.  On 29 November 2024, the Injunction Order was continued on an interim basis, pending the substantive disposal of the Plaintiff’s Summons filed on 26 November 2024 (“P’s Continuation Summons”) to continue the Injunction Order. Subsequently, on 11 December 2024, the Plaintiff filed a Summons for an unless order for the Plaintiff to comply with the disclosure order in the Injunction Order (“P’s Disclosure Summons”).  Also on 11 December 2024, the 1^st, 2^nd and 3^rd Defendants (the “Defendants”) filed a Summons for an order of discharge of the Injunction Order (“Ds’ Discharge Summons”).  These three Summonses are now before me.

II.  PLAINTIFF’S CASE

2.On 3 March 2025, the Plaintiff filed its Statement of Claim.  Since the Defendants have reserved their position on the jurisdiction of the Hong Kong Courts, they have not filed any defence.

3.According to the Plaintiff, supported by its evidence in relation to the Summonses, the Plaintiff is a New Jersey company incorporated under the laws of the United States of America (“US”).  The 1^st Defendant is a wholly foreign-owned enterprise incorporated under the law of the People’s Republic of China (“PRC”), and the 2^nd Defendant is a company incorporated under the law of Hong Kong.  The 1^st and 2^nd Defendants are connected in that (1) the 3^rd Defendant holds 49% of the 1^st Defendant; (2) the 3^rd Defendant controls the 1^st Defendant; (3) the 3^rd Defendant is the sole director and shareholder of the 2^nd Defendant; (4) the 3^rd Defendant controls the 2^nd Defendant; and (5) the 2^nd Defendant is controlled by the 1^st and/or 3^rd Defendant.

4.On 18 December 2020, the Plaintiff commenced legal proceedings (the “US Litigation”) in the District Court for the Western District of North Carolina (the “North Carolina Court”) against the following entities:-

(1)  (a) Blueworks Corporation, and (b) Blueworks Innovation Corporation (collectively, the “US Defendants”); and

(2)  (a) the Plaintiff, and (b) Ningbo Yishang Import and Export Co., Ltd (collectively, the “Ningbo Defendants”).

5.In the Plaintiff’s First Amended Complaint dated 7 October 2021 (the “Plaintiff’s US Complaint”) filed in the US Litigation, the Plaintiff set out various counts, which we refer to as causes of action in Hong Kong.  Count I, Count XIX and Count XXI, against all the US Defendants and Ningbo Defendants (referred to collectively “Defendants” in the Plaintiff’s US Complain), are relevant for the present purposes:-

“COUNT I

False Advertising in Violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a)

122. Hayward [that is, the Plaintiff] re-alleges and incorporates by reference [to] Paragraphs 1-121 above as if fully set out herein.

123. Hayward and Defendants compete in the market for replacement salt cells.

124. In advertisements for salt cells that compete with Hayward’s trademarked sale cells, Defendants advertise, offer for sale, and sell in interstate commerce certain products that are represented as a ‘direct replacement’ for, or ‘compatible with Hayward products…

125. These representations are materially false or misleading…

126. Consumers have been deceived…

130. Defendants false and deceptive advertising violates Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a).

132. Hayward has no adequate remedy at law to fully redress these injuries.

COUNT XIX

Violation of North Caroline Unfair and Deceptive Practices Act §75-1.1

269. Hayward re-alleges and incorporates by reference [to] Paragraphs 1-268 above as if fully set out herein.

273. Defendants’ unlawful activities, such as unlawfully importing, selling, advertising, distributing in the United States salt cells and chlorination systems without Hayward’s authorization and/or consent, constitute violation of North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1 (“UDTPA”)

284. Pursuant to N.C. Gen. Stat §75-1.1 et seq, Hayward is entitled to treble damages and attorneys’ fees for Defendants’ unfair and deceptive acts, as well as any other remedies provided under the statute.

COUNT XXI

Copyright Infringement in Violation of 17 U.S.C. §501…

294. Hayward incorporates the allegations of Paragraphs 1-293 as if set forth fully herein.

295. Hayward has complied with all statutorily formalities of the Copyright Act with respect to registration of protectable elements of the work…

296. Defendants had access to Hayward’s copyright-protected documents and copied them by including them on its website… and in connection with advertisements for infringing replacement salt cell equipment, as detailed above.

300. By reason of the foregoing, Defendants infringement of the Hayward Copyrights has been deliberate, wilful, and in utter disregard of Hayward’s rights.

301. The illegal and unauthorized acts of Defendants alleged herein have caused Hayward irreparable harm to its business and to the value of the Hayward copyrights.”

6.I should add that for paragraph 273 under Count XIX, the unlawful activities could only be unlawful advertising because the Plaintiff’s claim on the infringement by the defendants there of the Plaintiff’s registered trademarks, unjust enrichment and other tortious acts in Counts II to Counts XVIII, upon which the Plaintiff claimed “importing”, “selling” and “distributing” were all unlawful, would, upon trial, be found not established.

7.The relief the Plaintiff sought in the First Amended Complaint was, insofar as relevant for the present purpose as follow:-

“D. An award of damages under 15 U.S.C. §1117, and/or other applicable law, including, without limitation, disgorgement of profits, lost profits, a reasonable royalty, and/or any other damages sufficient to compensate Hayward for Defendants’ …false advertising,… unfair competition…

E. An accounting to determine proper amount of damages;

F. A three-fold increase in damages under 15 U.S.C. § 1117 and/or other applicable law, for Defendants’ wilful, wanton, and deliberate acts of infringement and unfair methods of competition and deceptive practices;

…

I. An award of treble damages (N.C. Gen Stat §75-16) and attorneys’ fees (N.C. Gen. Stat. §75-16.1) pursuant to the North Carolina Unfair & Deceptive Trade Practices Act…”

8.After trial with a jury, on 28 May 2024, the North Carolina Court entered the following judgment (the “US Judgment”) against the US Defendants and the Ningbo Defendants (including the 1^st Defendant herein):-

“IT IS ORDERED, ADJUDGED, AND DECREED that:

3. Plaintiff proved that Defendants made false or misleading statements in commercial advertising that deceived or were likely to deceive consumers in a material way that harmed Plaintiff, in violation of 15 U.S.C. §1125(a)…

4. Plaintiff proved that Defendants violated the North Carolina Unfair and Deceptive Trade Practices Act…

5. [(1)]The jury found, and the Court now orders, that Plaintiff is entitled to and should recover from Defendants actual damages (lost profits) in the amount of $4,900,000.00 Defendants’ false advertising and North Carolina Unfair and Deceptive Trade Practices Act claims…

[(2)] The jury’s award of $4.9 million is automatically trebled to $14.7 million. See N.C. GEN. STAT. §75-16.

[(3)] Plaintiff is further entitled to pre-judgment interest on its $4.9 million actual damage award… at the North Carolina statutory rate of 8% per annum…

[(4)] As of May 01, 2024, Plaintiff is therefore entitled to $1,320,986.30 in pre-judgment interest, for a total award of $16,020,986.30 on Plaintiff’s false advertising and North Carolina Unfair and Deceptive Trade Practices Act claims.

6… Plaintiff did prove that Defendant Ningbo C.F. infringed that same copyrighted work in violation of 15 U.S.C. §501…

7. The jury found, and the Court now orders, that Plaintiff is entitled to and should recover from Defendants statutory damages in the amount of $750.00 for Defendant Ningbo C.F.’s copyright infringement…

IT IS, THEREFORE, ORDERED that based on the jury verdict Plaintiff Hayward Industries, Inc., shall recover from Defendants… the amount of… ($16,021,736.30).  Because the four Defendants are alter egos, Defendants are jointly and severally liable for this amount.”

9.The subparagraph numbers [(1)] to [(4)] under paragraph 5 of the US Judgment are added by me for clearer reading.

10.Further, on 22 August 2024, the North Carolina Court granted an order (the “US Costs Order”) that the US Defendants and the Ningbo Defendants (including the 1^st Defendant herein) shall pay the Plaintiff attorneys’ fees in the amount of US$1,195,000.28, being the attorneys’ fees only on the Plaintiff’s Lanham Act claim, that is, Count I. 

11.The present action is essentially an action to enforce the US Judgment and the US Costs Order against the 1^st Defendant for the sums thereunder (collectively, the “US Judgment Debt”).

12.Neither the 2^nd Defendant nor the 3^rd Defendant is ever a party to the US Litigation, the US Judgment, or the US Costs Order.  They are Defendants to the present proceedings on the following bases as pleaded in the Statement of Claim:-

“17(b) Hayward [that is, the Plaintiff] has discovered, that since at least 2020, and perhaps earlier, Ningbo CF [that is, the 1^st Defendant] has, and/or Chen [that is, the 3^rd Defendant] has caused Ningbo CF to, divert significant funds away from Ningbo CF to FIG [that is, the 2^nd Defendant] and/or a multicurrency bank account held by FIG with… HSBC… (“FIG HSBC Account”) (“Diversion of Funds”). Specifically:

i. Chen and/or Ningbo CF have been directing customers of Ningbo CF located in the United States, Australia, Cambodia, Canada, Curacao, Dominican Republic, France, Israel, Italy, Jamaica, Kenya, Mexico, Panama, Philippines, Thailand, United Arab Emirates and Uruguay (“Ningbo CF Customers”) to pay invoices due and payable to Ningbo CF to the FIG HSBC Account instead.

ii. During the period 11 April 2024… to 13 November 2024, Ningbo CF and/or Chen directed Ningbo CF Customers to pay, and Ningbo CF Customers did pay, a total US$6,439,611 (“Funds”) into the FIG HSBC Account as particularised in Schedule 1 to this Statement of Claim.

VI. FIG HOLDING ASSETS IN TRUST FOR NINGBO CF

28…

29. As pleaded in paragraph 17(b) above, Ningbo CF has been engaging in, and/or Chen has caused Ningbo CF to engage in, the Diversion of Funds. The Diversion of Funds involved, inter alia, Ningbo FC issuing, and/or Chen causing Ningbo CF to issue, invoices addressed to its customers on its letterhead and signed by Chen or other Ningbo CF employees, but directing that the invoice be settled by payment to the FIG HSBC Account.

31. FIG does not operate or engage in any trading or business activity of its own which would justify or explain such a volume of transactions on the FIG HSBC Account.

32. In the premises, Hayward avers that the Funds belong to Ningbo CF, ad that FIG holds the Funds as nominee and/or trustee for Ningbo CF as the ultimate beneficial owner…

VII. FIG IS AN ALTER EGO OF NINGBO CF

33. FIG was used by Ningbo CF and/or Chen as a sham and a façade for the illegitimate purpose of assisting Ningbo CF in evading its liabilities, including its liabilities to the Plaintiff under the US Judgment. On this basis FIG is an alter ego of Ningbo CF…

34. As a result of the matters pleaded above:

(a) FIG; and

(b) Chen, as (i) the mastermind of the Diversion of the Funds, (ii) a majority shareholder, the supervisor, technical director, owner and/or general manager of Ningbo CF and (iii) the sole director and shareholder of FIG,

are liable to Hayward for the US Judgment Debt or, in the event that the US Judgment Debt is not enforceable in its entirety in Hong Kong (which is denied), the Compensatory Judgment Debt.

VIII. CHEN AND FIG KNOWINGLY INDUCED AND PROCURED NINGBO CF TO ACT IN WRONGFUL VIOLATION OF HAYWARD’S RIGHTS UNDER THE US JUDGMENT

35. Hayward avers that:

(a) the Diversion of Funds resulted in a breach of the US Judgment by Ningbo CF (“Breach”);

(b) the Diversion of Funds and the Breach were procured and/or induced by Chen and/or FIG; and

(c) in procuring and/or inducing such Diversion of Funds and the Breach, Chen and/or FIG knew, or ought to have known, that the same would breach the rights of Hayward under the US Judgment in that, to date, Hayward has been unsuccessful in enforcing the US Judgment Debt or any part thereof in the United States or anywhere else in the world.

36. As a result of the matters pleaded above, Chen and FIG knowingly induced and/or procured Ningbo CF to act in wrongful violation of Hayward’s rights under the US Judgment, causing loss and damages to Hayward up to the full amount of the US Judgment Debt or, in the alternative, damages to be assessed.”

III.  EX PARTE APPLICATION FOR MAREVA INJUNCTION

13.On 25 November 2024, the Plaintiff’s ex parte application was heard by DHCJ R Ismail SC.  In the Skeleton Submissions read by her Ladyship (“P’s Ex Parte Skeleton”), Mr Arthur Randall, Solicitor Advocate for the Plaintiff (before her Ladyship and now also before me), in summary, made submissions in support of the application.  For the present purpose, I only have to refer to those submissions on (1) good arguable case; and (2) the draft order.

14.First, in respect of good arguable case, in summary:-

(1)  As against the 1^st Defendant, the basis of the claim is the enforcement of the US Judgment Debt;

(2)  As against the 2^nd Defendant, the basis of the claim is (a) a Chabra Defendant; (b) alter ego of the 1^st Defendant; and/or (c) the 2^nd Defendant holding assets on trust for the 1^st Defendant; and

(3)  As against the 3^rd Defendant, the basis of the claim is (a) he being the controlling mind of the 1^st and 2^nd Defendants; (b) he being the mastermind of the scheme to make use of the 2^nd Defendant to divert funds from the 1^st Defendant to evade the US Judgment Debt; and (c) therefore, the corporate veil between the 1^st Defendant, 2^nd Defendant and the 3^rd Defendant should be pierced.

15.Second, in respect of the draft order, I only need to refer to §46 of P’s Ex Parte Skeleton:-

“The Judgment Debt includes a damages award in the sum of US$4.9 million (actual damages) which were automatically trebled under the UDTPA (trebled damages). Whilst the actual damages are undoubtedlyenforceable in Hong Kong, P accepts that it is arguable that the trebleddamages (i.e. the additional US$9.8 million) may be considered to bepunitive damages and thus unenforceable. That said, punitive damagesare enforceable in the Mainland and in the recently enacted MainlandJudgments in Civil and Commercial Matters (Reciprocal Enforcement)Ordinance (Cap 645) [LOA#l0],an exemption is made for theenforcement in Hong Kong of punitive damages in certain intellectualproperty disputes in Mainland China (see section 18(3)(c)). If theconduct of the Ds in diverting D1’s assets to D2 in Hong Kong allowsD 1 to avoid the enforcement of punitive damages in the Mainland, thenthere is an argument that D 1 should not be allowed to benefit from itsmisconduct and that the full amount of the Judgment Debt should beenforced in Hong Kong. If this Honourable Court is not with P on thispoint, then P is prepared to limit the amount of the Mareva InjunctionOrder to the actual damages awarded, plus interest and costs in the sumof US$7,888,405.25 (being US$17,688,405.25 - US$9,800,000).”

16.During the ex parte hearing, §46 of P’s Ex Parte Skeleton was also referred to:-

“COURT: So let me say I will make the order on the basis, I think, that you have a good arguable case in relation to both the assets that have gone into D2’s accounts may actually be D1’s assets. And also, a good arguable case that you may be able to pierce corporate veil. In relation to -- now let me find it. The extent of the damages, I think I’m only prepared to do it up to the judgment debt amount and not the punitive...

MR RANDALL: Yes, my Lady. Of course, we -- yes.

COURT: So what I mean is, obviously you got judgment in the US for the trebled damages, but I think in non-punitive amount.

MR RANDALL: Yes, obviously we appreciate, and the client has been informed of the difficulty in enforcing punitive damages in Hong Kong. We did have some novel arguments to run and perhaps...

COURT: Well, you may, but I think that might be for the inter partes hearing.

…

MR RANDALL: I provide the smaller amount at paragraph…

COURT: 1?

MR RANDALL: Sorry, bear with me, 46 of my skeleton.

COURT: Now I’m looking at the order.

MR RANDALL: Yes.

COURT: The draft order.

MR RANDALL: Yes. It doesn’t clear the higher amount, so if we’re to reduce that…

COURT: Does it?

MR RANDALL: Yes. So the lower amount would be the amount included at the bottom of paragraph 46 of my skeleton, which is at the top of page 17. So that would be reduced to 7,888,405.25.

COURT: I’d actually misread the skeleton on that. Okay. So the draft needs to be amended, paras 1 and 2. So it’s the 7.8 etc million figure.

MR RANDALL: Yes, that is correct, my Lady.” (emphasis added)

17.At the end, the Injunction Order was granted to the extent of the total of (1) the actual damages of US$4,900,000; (2) interest thereon; and (3) the attorney fees of US$1,195,000.28.  There is no dispute that the total amounts to US$7,888,405.25.

IV.  GROUNDS FOR DS’ DISCHARGE SUMMONS AND OPPOSING P’S CONTINUATION SUMMONS

18.In support of Ds’ Discharge Summons and in opposition to P’s Continuation Summons, the Defendants filed various affirmations, none of which contains any factual evidence to traverse the Plaintiff’s material factual allegations.  From the affirmations and the submissions of Mr Tony Ko, leading Mr Sean O’Reilly, counsel for the Defendants, the only grounds in support of Ds’ Discharge Summons and in opposition to P’s Continuation Summons are legal grounds, namely:-

(1)  At the ex parte hearing, the Plaintiff failed to make full and frank disclosure of a “crucial legal point that is fatal to its claim, namely, that its judgment debt is not enforceable pursuant to section 7 of the Protection of Trading Interests Ordinance (Cap 471) (the “PTIO”)”: see Mr Ko’s Skeleton Submissions §3.  I shall refer to it as the “Material Non-Disclosure Ground”.

(2)  Based on section 7 of the PTIO, the Plaintiff did not have any good arguable case given that the US Judgment Debt is not enforceable.  I shall refer to this ground as “Enforceability Ground”.

(3)  There is no good arguable case for piercing the corporate veil between the Defendants.  I shall refer to it as the “Corporate Veil Ground”.

V.  MATERIAL NON-DISCLOSURE GROUND

A.  Section 7 of PTIO

19.To appreciate the Material Non-Disclosure Ground, I start with section 7 of the PTIO.  The preamble of the PTIO reads:-

“An Ordinance to provide protection from requirements, prohibitions and judgments imposed or given under the laws of places outside Hong Kong and affecting the trading or other interests of persons in Hong Kong.”

20.Section 7 of the PTIO provides, insofar as relevant for the present purposes, that:-

“7. Restriction on enforcement of certain overseas judgments

(1) A judgment to which this section applies shall not beregistered under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) and no court in Hong Kong shall entertain proceedings at common law for the recovery of any sum payable under such a judgment.

(2) This section applies to any judgment given by a court of a place outside Hong Kong, being a judgment-

(a) for multiple damages within the meaning of subsection (3)…

(3) In subjection (2)(a), a judgment for multiple damages means a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the party in whose favour the judgment is given.”

21.The UK equivalent is section 5 of the Protection of Trading Interests Act 1980.

22.The only Hong Kong case on the application of section 7 of PTIO is Re Grande Holdings Ltd [2013] 4 HKLRD 353.  In that case, DHCJ Le Pichon, by way of obiter, held:-

“53. On the hypothesis that the 2011 Judgment falls foul of s.7 of the PTIO, the question would then arise whether any, and if so what, part of the 2011 Judgment that remains outstanding… is enforceable, being in respect of the compensatory element of the award, interest, costs and attorneys fees.

54. In Lewis v Eliades [2004] 1 WLR 692 the English Court of Appeal had to consider s.5 of the Protection of Trading Interests Act 1980 on which s.7 of PTIO was modelled. Potter LJ considered that judgments which contained elements of multiple damages and elements of compensatory damages could be split so as to allow enforcement of the compensatory part:

[53] In my view the robust and sensible approach to section 5 of the 1980 Act in relation to a composite judgment… is not to treat the multiple damages element of the judgment as definitive of, or “infecting”, its character as a whole, but to read section 5(1) as precluding proceedings for recovery at common law only to the extent that the judgment sought to be enforced is for any amount arrived at by multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment was given.

55. That purposive approach was adopted in Lucasfilm Ltd v Ainsworth [2009] FSR 2. In his judgment, Mann J stated as follows:

[229] … disregard for pure form meant that the wrapping up of the sums did not prevent separating out… equally importantly, the Court considered that there was no reason in policy why the untainted compensatory elements should be rendered irrecoverable, and good reasons in policy why they should be recoverable.

[230] I would respectfully agree with that, and would go further. I think that the same purposive reasoning leads to the conclusion that the genuinely compensatory elements of an award subject to multiplication should be equally recoverable. I struggle to find a reason why they should not be… Take a case like the present, where the claimant chooses to claim the benefits of multiplication. Why should that fact now deprive him of enforcing the genuinely compensatory element? The only reason for doing so would be to express disapproval, to the extent of removing what was otherwise a plain entitlement. That would in my view smack of a penalty, and would require clearer words that appear in the statute to justify its imposition. I do not think that the wording is sufficiently clear. The purpose of the Act is plainly to prevent something in the nature of a penalty (the multiple damages); it is not at all plain that that should be at the expense of imposing another one. I hold that it does not do so…

For my part, I agree with the approach and reasoning of Potter LJ and Mann J.” (emphasis added)

23.Probably because there would not be much argument on the issue given that section 7 of the PTIO was not the main issue and because this issue formed an obiter only, her Ladyship did not have as much assistance I have from counsel.  In my view, with respect, when reading the cases closely, Potter LJ’s dicta in Lewis v Eliades and Mann J’s obiter inLucasfilm Ltd v Ainsworth do not see eye to eye with each other, and may not support what her Ladyship seemed to think it would support. 

24.In Lewis v Eliades, the issue was whether the presence of a clearly identifiable award under the US legislation Racketeer Influenced and Corrupt Organization Act (the “RICO Act”) (US$396,082 trebled to add a further US$792,164 to make total RICO damages of US$1,188,246) rendered the whole judgment of US$8,065,805 unenforceable.  In the course of the argument, a concession was made that all the treble damages award, including the basic award, were irrecoverable.  The English Court of Appeal held that the other, non-RICO compensatory damages could be enforced. Therefore, there was simply no attempt there to split out the compensatory element from the non-compensatory element in the RICO award.  When Potter LJ, at §53 quoted by her Ladyship in Re Grande Holding Ltd, supra, mentioned “infecting”, properly understood in such context, Potter LJ meant that an award consisting of non-compensatory element based on one claim should not “infect” an award consisting of compensatory element only based on another “unconnected” claim (“unconnected” being the word used by Jacob LJ at §60). Such understanding is more consistent with what Potter LJ said earlier at §41 in the same case:-

“I accept, and indeed it is not in issue between the parties, that the 1980 Act makes clear its hostility to awards of multiple damages by barring enforcement in the United Kingdom of any part of such award including the basic compensatory award to which ha multiple element has been applied and superadded. The wording of the definition in section 5(3) makes that clear.” (emphasis added)

25.What Potter LJ said at §53, quoted by her Ladyship in Re Grande Holding Ltd, supra, has to be understood with reference to the phrase “a composite judgment”, which, understood in the context of that case with the concession made, must mean one single judgment setting out all the awards in the same litigation though based on different causes of action.

26.So understood, Mann J’s obiter, if taken to mean that the non-compensatory element could be separated out from a single judgment even based on a single cause of action, would be inconsistent with Potter LJ’s judgement.

27.To complete the picture, I should also refer to SAS Institute Inc v World Programming Ltd [2019] FSR 30 and Motorola Solutions Inc v Hytera Communications Corporation Ltd [2025] Bus LR 133. 

28.In SAS Institute Inc v World Programming Ltd, supra, the claimant obtained judgment on its claim against the defendant commenced in North Carolina based on breach of contract/fraudulent inducement to contract, tortious interference and a statutory claim for breach of the North Carolina Unfair and Deceptive Trade Practices Act (the “UDTPA Claim”).  The judgment separated out the non-compensatory element of the UDTPA award.  The claimant sought to enforce in the UK the compensatory damages only.  In reaching the conclusion that the whole judgment on a single claim would be rendered unenforceable, Cockerill J made extensive explanation of the previous cases, which is worth quoting in some length:-

“238… I do not consider that the US Judgment takes the form that it does, with the non-compensatory element of the UPDTA award separated out, makes any difference to outcome.  To find that it did so would be to elevate form over substance impermissibly; and such an approach is not justified by the authorities which indicate that where there is a valid and an invalid part of the judgment, the valid part can be saved so long as the relevant elements of the damages are “readily identifiable”…

239. That however begs the question of whether a judgment under UPDTA or a similar Act which contains a compensatory and a non-compensatory element should as a matter of principle be treated as the Court of Appeal treated the judgment on the separate causes of action in the Lewis v Eliades case – or rather as the parties and the Court treated the RICO element of the claim in that case.

240. This essentially involves deciding whether the line indicated more strongly in Lewis v Eliades and taken up by Lord Hodge in Service Temps (supported by the weight of academic authority) is to be preferred over the carefully considered obiter dictum of Mann J in Lucasfilm [2009] F.S.R. 2.

241. Ultimately, I have concluded that it is… I do not read it as saying that the statute is to be construed purposively.  Potter LJ was clear at [41] that the consensus as to the approach to the RICO claim was correct.  His later references to compensatory elements are probably best read as expressing his view in the particular context, i.e. that of grappling with other purely compensatory claims…

242. As for Lucasfilm [2009] F.S.R. 2, although Mann J at [224]-[231] engaged in a fairly lengthy discussion it is obiter and it is certainly not binding on me…

243. It seems to me that with the greatest of respect to the learned judge in Lucasfilm [2009] F.S.R. 2… he paid insufficient regard to the actual wording of the Act.  When one goes back to the Act one finds that the prohibition (“no court in the United Kingdom shall entertain proceedings at common law for recovery of any sum payable under such a judgment”) relates to “a judgment for multiple damages”.  That is defined as meaning

“a judgment for an amount arrived at by doubling, trebling, or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given.”

244. The judgment relates therefore to the cause of action.  The statue does not distinguish between different elements of an order entered under a judgment.  If there is a judgment based on multiplication, then no part of it may be enforced.  That is given support by the preamble to the Act which states:

“An Act to provide protection from requirements, prohibitions and judgments imposed or given under the laws of countries outside the United Kingdom and affecting the trading or other interests of persons in the United Kingdom.”

This demonstrates that it is focused on causes of action which attract punitive or multiple damages such as those that are found under UPTPA.

245. This is exactly what Lord Hodge found in [a Scottish case Service Temps Inc v MacLeod [2013] CSOH 162; 2014 SLT 375] at [13]:

“This remarkable Act was enacted to discourage the United States from seeking to enforce its competition policies by, among other means, making awards of multiple damages against persons in the United Kingdom.”…

246. This is consistent not just with how Potter LJ (and the parties in Lewis v Eliades [2004] 1 W.L.R. 692) understood the Act to work, but also with what was said in British Airways v Laker Airways [1984] Q.B 142: “[it] is aimed directly at judgments in antitrust actions and goes to the whole of the judgment not merely the multiple or penal part of it”.

247. It is also consistent with how the academic authorities… understood the matter… the answer is in my judgment in the wording of what Lord Hodge rightly calls a “remarkable” Act and in the forceful policy which underpins the legislation.

248. I therefore conclude that s.5 PTIA would prevent recovery of the UDPTA claim.” (emphasis added)

29.SAS Institute Inc v World Programming Ltd was followed by Calver J in Motorola Solutions Inc v Hytera Communications Corporation Ltd, supra at §§49-65.

30.After all, the scope of section 7 of the PTIO is a matter of statutory construction.  In construing statutory provisions, the court “construes the relevant words having regard to their context and purpose”: see Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at §29 per Ma CJ delivering the judgment of the majority (with whom Tang PJ dissenting on other matters).  Bearing this in mind, I find that Cockerill J’s view expressed in SAS Institute Inc v World Programming Ltd is more consistent with this approach of statutory construction, especially when the purpose of the PTIO is properly understood and taken into account.  Therefore, I agree that under section 7 of the PTIO, the court cannot only enforce the compensatory component but not the non-compensatory component of a judgment, a “judgment” meaning a judgment based on one cause of action, but has to refuse to entertain any proceedings to enforce the judgment.  It also follows that where there are several causes of action based on which several awards are made separately but those awards happen to be granted in the same document titled “judgment” or “decision” or the like, for the purpose of section 7 of the PTIO, those awards are regarded as separate judgments and are isolate-able in that those judgments purely of compensatory nature can be enforced.

B.  Material non-disclosure

31.Based on the legal principles above, Mr Ko, for the Defendants, argues that:-

(1)  The award of US$14,700,000 itself is a single judgment based on the UDPTA, and the compensatory element of US$4,900,000 cannot be separated.

(2)  The award is therefore unenforceable by virtue of section 7 of the PTIO.

(3)  The Plaintiff never mentioned this to the Court at the ex parte hearing.

(4)  This is a material non-disclosure.

32.For proposition (1), is the award of US$4,900,000 only based on the UDPTA?  It is useful to recite the relevant paragraphs of the US Judgment here:-

“5. [(1)]The jury found, and the Court now orders, that Plaintiff is entitled to and should recover from Defendants actual damages (lost profits) in the amount of $4,900,000.00 for Defendants’ false advertising and North Carolina Unfair and Deceptive Trade Practices Act claims…

[(2)] The jury’s award of $4.9 million is automatically trebled to $14.7 million. See N.C. GEN. STAT. §75-16.

[(3)] Plaintiff is further entitled to pre-judgment interest on its $4.9 million actual damage award… at the North Carolina statutory rate of 8% per annum…”

33.So, the US$4,900,000 was “actual damages” for the false advertising, which was Count I of the First Amended Claim, and for the UDTPA claim, which was Count XIX of the First Amended Claim (both counts already quoted in §5 above).  From the US Judgment, it is not clear whether the damages were based jointly, or jointly and severally, on the two Counts.  It seems from the contents of the two Counts that once false advertisement is established, there is violation of the UDTPA, as apparent from §273 under Count XIX of the First Amended Claim. It also seems that there was no independent award of damages under Count I because the total amount of award does not include any US$4,900,000 in addition to the trebled amount of US$14.7 million and thus one can safely assume that any award under Count I is subsumed under Count XIX, whereas the ultimate sum is just the trebled damages. At least, if it is otherwise (as now suggested by Mr Randall with reference to an order made by the North Carolina Court denying the defendants’ motion for a new trial (the “Order Denying a Retrial”), I would expect that the Plaintiff would have adduced evidence to properly explain the matter, and/or that Mr Randall would draw this matter to the ex parte judge’s attention in discharge of the obligation to make full and frank disclosure.  There was no such evidence, and there was no such submission before the ex parte judge.

34.As mentioned above, the Order Denying a Retrial was not put before the ex parte judge.  In fact, it was not in the evidence, but was attached to Mr Randall’s Reply Skeleton Submissions dated 22 May 2025, and a Summons for leave to file an affirmation to exhibit the Order Denying a Retrial was issued on 23 May 2025.  There was no good explanation for this delay, and as I have opined above, it should have been disclosed to the ex parte judge.  However, given the materiality of the Order Denying a Retrial and in the absence of any realistic challenge that could be mounted to its authenticity, I gave leave for filing the affirmation at the outset of the hearing, with costs to the Defendants.  In response, the Plaintiff filed a Summons on 26 May 2025 for leave to file an affirmation to exhibit a copy of the Verdict Form (the “Verdict Form”) so that the Order Denying a Retrial could be properly understood.  I also gave leave for filing this affirmation.

35.The materiality of the Order Denying a Retrial is this: at page 7 of the Order Denying a Retrial, the North Carolina Court explained:-

“Moreover, Defendants’ conduct for which they are liable under the Lanham Act [in Count I] – their false or deceptive advertising – is the same conduct for which they are liable under the UDPTA, and the Court correctly instructed the jury as such… As the Court found, Plaintiff proved that Defendants’ false statements in their advertising rendered Defendants liable for Lanham Act false advertising and, by extension, for violating the UDTPA.” (emphasis added)

36.In other words, the actual damages for US$4,900,000 was awarded on Count I.  The same actual damages was awarded on Count XIX, which was proved by extension by proving Count I.  Then by the UDPTA, the damages was trebled.  In my view, by the rule against double compensation, the award would not be US$4,900,000 plus HK$14.7 million, but only the latter.  However, viewed in terms of causes of action, there is, in my opinion, a good arguable case that there was an award of US$4,900,000 independently based on Count I only.  It follows that there is a good arguable case that there is a judgment of US$4,900,000 based on Count I only, and this judgment is purely compensatory.

37.The Verdict Form does not contradict this understanding.  The Verdict Form was a form for the jury to fill in for their findings and awards.  Question 10 is the question Mr Ko for the Defendants relies upon:-

“10. If you find for Plaintiff Hayward on its claim for trademark infringement, false advertising, and/or the North Carolina Unfair and Deceptive Trade Practices Act what amount of Plaintiff Hayward’s lost profits do you find should be awarded to Plaintiff Hayward?

$4,900,000 (enter an amount)”

38.Mr Ko relies on this to say that the award of US$4,900,000 is a composite award, from which one cannot segregate the award under the Lanham Act in Count I for enforcement.  In my view, this was just a form for the jury to fill in without showing how the amount was arrived at.  It is the Court’s instructions to the jury, as recounted in the Order Denying a Retrial quoted above, that is more material. 

39.Mr Ko also refers me to “Request for Relief F” in the First Amended Complaint, which sought a “three-fold increase in damages under 15 U.S.C. §1117 and/or other applicable law”.  “15 U.S.C.” is the citation for the Lanham Act, as one can see from Count I, and so Mr Ko submits that the treble damages was made under the Lanham Act as well.  However, when one read §5(2) of the US Judgment, the reference there to “N.C. GEN. STAT.” is a reference to the UDPTA, and “N.C. GEN. STAT. §75-16” there is the very same reference in “Request for Relief I” for treble damages under the UDTPA.  There is no reference to “15 U.S.C.” for the treble damages.  So, in my view, at least there is a good arguable case, despite Mr Ko’s submissions in this regard, that the treble damages was awarded only under the UDPTA.

40.Therefore, for proposition (1), my view is that on the evidence now before me (not before the ex parte judge), there is a good arguable case that there is a judgment awarding US$4,900,000 to the Plaintiff based on Count I only which is purely compensatory.

41.As such, under section 7 of the PTIO, the Plaintiff still has at least a good arguable case that the award of US$4,900,000 is enforceable.

42.While Mr Randall did disclose to the ex parte judge, and the ex parte judge obviously was aware, that non-compensatory element was not enforceable (subject to the novel argument which Mr Randall had and which the ex parte judge had clearly regarded as a matter for inter partes argument), the legal proposition that a compensatory element would be unenforceable when the non-compensatory element was contained in a composite judgment based on one cause of action was not disclosed to the ex parte judge.  Further, as explained above, such evidence as the Order Denying a Retrial should have been disclosed to the ex parte judge to explain the US Judgment which, on the face of it, would otherwise suggest that the US$4,900,000 award had been subsumed under the trebled award under the UDPTA.  All these, going to the root of the cause of action, were material.  Even on the basis that there were two conflicting lines of authorities, at least such conflicting lines of authorities should have been disclosed to the ex parte judge in discharge of the obligation to make full and frank disclosure.  Either way, this was, in my view, a material non-disclosure.

43.For the sake of completeness, as regards the “pre-judgment interest on its US$4,900,000 actual damage award” under §5(3) of the US Judgment, it is incidental to the Count I claim.  The enforceability should therefore follow the award of the US$4,900,000.

44.It remains for me to point out Mr Ko’s fair acceptance that the award of attorney’s fees was made in a separate judgment and thus in Mr Ko’s words, the Plaintiff has a “stronger case” on enforceability on this.  In my view, this minor point, however, does not affect the totality of the whole picture here.

VI.  DISCHARGE AND RE-GRANT?

45.Based on the legal principles I have found above in relation to section 7 of the PTIO, the injunction in relation to the amount of US$4,900,000 (as well as the statutory damage of US$750 in §7 of the US Judgment, which is not in dispute purely compensatory and enforceable) could have been granted. 

46.The question is, with respect to the judgment based on the Lanham Act in Count I purely compensatory in nature, should I still discharge the whole injunction and if so, should I re-grant the injunction to the extent of covering the two “judgments”?

47.The legal principles on discharge and re-grant upon material non-disclosure have been succinctly summarised by Coleman J in §37 of Hwang Joon Sang v Golden Electronics Inc [2021] HKCFI 2425:-

“(1) An applicant making an ex parte application must act fairly in all material aspects when preparing and presenting the application.

(2) This includes the duty to disclose to the Court all matters which are material, meaning those matters material to the court’s assessment and decision whether or not to grant the relief without notice, and if so on what terms.

(3) The test as to materiality is an objective one, and ultimately a question for the court. Hence, it is no excuse for an applicant subsequently to say that he was generally unaware, or did not believe, that the facts were relevant or important.

(4) Non-disclosure may be material even if its effect is just to give a seriously different ‘flavour’ to the case.

(5) The duty of full and frank disclosure is a stringent one, designed to protect the absent party.

(6) Therefore, if material non-disclosure has occurred at the ex parte application, the order obtained at such an application would likely be set aside automatically without going into the merits.

(7) Nevertheless, there is a discretion to re-grant the same order. That jurisdiction should be only sparingly exercised, taking into account the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.

(8) Hence, an assessment will be made as to the degree and extent of the culpability with regards to the non-disclosure. The more serious or culpable the non-disclosure, the more likely the court is to set its order aside and not renew it, however prejudicial the consequences.

(9) It is therefore relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge. Nor is there a general rule that a deliberate breach will attract that sanction.

(10) The application of principles which seek to uphold the integrity of the judicial process should not be carried to such lengths as will allow them to become the instrument of injustice.

(11) Because of the penal nature of the jurisdiction, the court should have regard to the proportionality between the punishment and offence.

(12)  When exercising the discretion whether to re-grant the order, the court should take into account all relevant circumstances.”

48.Given the materiality of the non-disclosure, which goes to the root of the basis of the claim, I automatically discharge the Injunction Order.

49.As to whether the material non-disclosure was deliberate, to be fair to Mr Randall, as mentioned above, there is only one published case in Hong Kong on section 7 of the PTIO, namely, DHCJ Le Pichon’s decision in Re Grande Holding Ltd, supra, although its UK equivalent had been part of the law of Hong Kong since 1990 by the Protection of Trading Interests Act 1980 (Hong Kong) Order 1990.  With the only one published case in Hong Kong despite the long enactment history of the legislation, while Mr Randall should have done further research to see if there was any updated position regarding the UK equivalent (for the avoidance of doubt, I am not here to determine whether there was any negligence or the like), I accept that his oversight not to have done so is not deliberate.

50.As regards merits of the application for injunction itself:-

(1)  On the Statement of Claim and evidence in support, which the evidence the Defendants have filed does not traverse, I accept that the Plaintiff has a good arguable case against all the Defendants in respect of those enforceable judgments.

(2)  In particular, on the Statement of Claim and untraversed evidence, I accept that the Plaintiff has a good arguable case as against the 2^nd Defendant based on (a) Chabra jurisdiction; (b) it holding assets in trust for the 1^st Defendant; and (c) piercing corporate veil on the ground that the 1^st Defendant is using the 2^nd Defendant to evade legal obligations to the prejudice of the Plaintiff.  In this regard, Mr Ko submits that the practice of instructing the 1^st Defendant’s customers to pay the 2^nd Defendant had been put in place before the entering of the US Judgment, and so, he submits, there is nothing sinister in this arrangement and this cannot be relied upon to say that this arrangement was made to evade the obligations under the US Judgment.  However, despite ample opportunity, the Defendants have failed to file any evidence to explain why there has been such an arrangement.  In the circumstances, I still think that the Plaintiff has a strong arguable case as against the 2^nd Defendant.

(3)  On the Statement of Claim and untraversed evidence, I also accept that the Plaintiff has a good arguable case as against the 3^rd Defendant that the corporate veil between him and the 1^st and 2^nd Defendant should be pierced on the ground that he used the 1^st and/or 2^nd Defendant in a scheme to evade the 1^st Defendant’s legal obligations to the prejudice of the Plaintiff.

(4)  On the untraversed evidence (and in fact, no submissions have been made to the contrary), I also accept that there is a real risk of dissipation of assets.

(5)  Thus, it is fair to say that the merits of the application for injunction are strong.

51.In the light of the circumstances, in considering proportionality:-

(1)  On the one hand, I should protect the integrity of the administration of justice against material non-disclosure in ex parte applications.

(2)  On the other hand, I should also protect the litigants’ rights and interests in the administration of justice.  In particular, I think if the material non-disclosure is nothing to do with any factual matters but legal arguments which the litigants themselves are not supposed to know (especially this fine legal question of law), it may be disproportional against the litigants themselves, or to use the words of Coleman J, “become the instrument of injustice” if they have to bear adverse consequences arising from material non-disclosure for which they cannot be said to be contributory.

52.Having considered the above, I find it appropriate to re-grant the Injunction Order.

VII.  DISCLOSURE SUMMONS

53.As I have re-granted the Injunction Order, I should determine the Disclosure Summons, which the Defendants invokes the right against self-incrimination to oppose.

54.The relevant legal principles have been summarised by Recorder Eva Sit SC in Sun Man Wai Kennis v Sun David Tse Chien [2021] HKCFI 591 at §30, which I shall not repeat here.

55.Having considered the matter in the round, I take the view that the Defendants cannot invoke the right against self-incrimination to oppose the Disclosure Summons, because:-

(1)  Procedurally, it is premature to invoke the right now at the application stage.  The right is invoked only when answering a disclosure order by affirmation, that is, the party ordered to make disclosure may say in the affirmation in answer to the disclosure order that he refuses to answer because of self-incrimination: see Petroliam Nasional Bhd and Ors v George Tan Soon Gin and Ors [1989] 2 HKLR 109 at 112B-F per Yang CJ, Hunter and Macdougall JJA.

(2)  It is for the parties who would be incriminated to make an affirmation to invoke the right: see Petroliam Nasional Bhd and Ors v George Tan Soon Gin and Ors, supra at 112F.  However, in the present case, the affirmation in opposition to the Disclosure Summons was made and affirmed by a solicitor of the Defendants’ Solicitors firm, not a director of the 1^st or the 2^nd Defendant, not the 3^rd Defendant himself.

(3)  The incrimination which the Defendants’ Solicitors refers to on behalf of the Defendants would occur in the contempt proceedings in relation to the defendants in the US Litigation for their failure to comply with a temporary restraining order (“TRO”) granted prior to the US Judgment restraining the defendants there from dealing with their assets in their bank accounts, which seems to be like a Mareva injunction to ensure that assets would be available for satisfying any judgment to be granted.  In other words, neither the 2^nd nor the 3^rd Defendant, who are not parties to the US Litigation, would be affected by the contempt proceedings. There is simply no risk of self-incrimination for the 2^nd and 3^rd Defendants.  That the 3^rd Defendant has been found to be in contempt of court in the US Litigation was due to his failure to give evidence in the contempt proceedings as ordered by the court there.  This has nothing to do with disclosure or failure to disclosure or breach of the TRO.

(4)  As regards the 1^st Defendant, in a nutshell, the Defendants’ Solicitors is deposing on behalf of the Defendants that the disclosure may show that the 1^st Defendant, covered by the TRO in the US Litigation, may have breached the TRO.  In my view, the TRO is related to the very same subject matter in the present action in Hong Kong.  If a Mareva Injunction had been granted (or continued) here (as I have), it would be a mockery of the administration of justice here in Hong Kong to allow the 1^st Defendant to invoke the right against self-incrimination in relation to a foreign proceedings of contempt of court for breaching a foreign order which is made for ensuring that the 1^st Defendant would have sufficient assets to satisfy the judgement over the same subject matter.  If the TRO were made in Hong Kong, the Defendants’ invocation of the right against self-incrimination would almost be like saying that there should not be a disclosure order because disclosure would show that the defendant has breached the TRO order, of which the disclosure order is supposed to facilitate the policing of the enforcement.

(5)  Further and in any event, the disclosure of information would facilitate the 1^st Defendant and 3^rd Defendant to purge any contempt in the contempt proceedings in the US for breach of the TRO – the information would assist clawing back the assets dissipated in breach of the TRO, and in this sense, the disclosure order sought here might reduce the risk of imprisonment or at least I do not see much risk of enhanced imprisonment as a result of such disclosure.

56.As regards the monetary threshold for disclosure, the parties agree that the threshold for disclosure in the original Injunction Order being HK$5,000 was too low.  I think a threshold of HK$50,000 is appropriate, and I so order.

57.Mr Ko, for the Defendants, submits that there should be no or more limited disclosure order against the 3^rd Defendant, given that he resides in the PRC and is not a party to the US Judgment.  He also submits that there is no evidence to show that money has passed from the 1^st and/or 2^nd Defendants to the 3^rd Defendant.  However, I think logically from my view above that there is a good arguable case against the 3^rd Defendant on piercing corporate veil, and from my re-grant of the Injunction Order against the 3^rd Defendant, there should be the same disclosure order against the 3^rd Defendant as sought by the Plaintiff.

58.The Plaintiff seeks an unless order for disclosure within 3 days on the basis that the Defendants have failed to comply with the disclosure order in the Injunction Order granted by the ex parte judge and continued inter partes thereafter.  There is no good reason for the failure to comply with the disclosure order.  The Defendants have never made any application to stay the disclosure order despite Ds’ Discharge Summons, and it is trite that an application to discharge itself does not constitute any stay.  Thus, the Defendants should have been active in complying with the disclosure order.  The Defendants have not filed any evidence to the contrary.  In fact, the Defendants have not filed any evidence to explain what they have done to comply with the Disclosure Order, or to seek time extension, or to explain how much time they would need.  Taking into account that I discharged the Injunction Order, which means that the disclosure order would not have been granted in the first place but is re-granted only now, I do not think an unless order is appropriate, but I think that because there is no evidence that the Defendants have not taken any steps to comply with the disclosure order, progress must have been made and so I would give 14 days’ extension from today for the Defendants to comply with the disclosure order, failing which it is likely that an unless order would be made.

59.As regards the disclosure order against HSBC, it is effectively a disclosure order for updated information from HSBC, against whom a Norwich Pharmacal order was made on 12 November 2024 for balance of the relevant bank account in the name of the 2^nd Defendant as at 15 November 2024.  The Injunction Order was obtained based on that balance. Right now in the Disclosure Summons, the Plaintiff seeks an updated balance in order to facilitate the policing of the Injunction Order now re-granted by me. Given the lack of disclosure made by the Defendants so far and the conduct of the Defendants as shown in the evidence, I think it appropriate to grant the order sought against HSBC for the balance as at 27 May 2025 as sought by Mr Randall during his oral submissions. 

VIII.  CONCLUSION

60.Given my view above, on Ds’ Discharge Summons and P’s Continuation Summons:-

(1)  The Injunction Order shall be discharged and re-granted.

(2)  As regards the costs, given my finding that the Plaintiff had material non-disclosure, the Plaintiff shall pay the costs of Ds’ Discharge Summons and P’s Continuation Summons to the Defendants.  As regards the taxation basis, although the Court may order costs on an indemnity basis when there is material non-disclosure even though it is not a deliberate one, I do not think the present case warrants an indemnity costs basis because the material non-disclosure is on a fine question of law on section 7 of the PTIO and, as explained above, there is only one case on this statutory provision in Hong Kong, while the conflicting line of authority comes from the English cases.  I do not think that the Plaintiff should be penalised by indemnity costs on such material non-disclosure.  Therefore, I order that the Plaintiff shall pay the Defendants costs of the two Summonses to be summarily assessed. The Defendants shall lodge and serve a statement of costs on these two Summonses only within 3 days from today, the Plaintiff shall lodge and serve a list of objection within 3 days thereafter, and I shall conduct the summary assessment on paper.

61.On P’s Disclosure Summons, I make the following order:-

(1)  The Plaintiff shall comply with paragraphs 4 and 5 of the Injunction Order re-granted by me within 14 days from today, with the thresholder raised to HK$50,000.

(2)  HSBC shall as soon as possible and in any event within 3 working days from date of service of the order notify the Plaintiff’s Solicitors of the balance of D2 Account as defined in the Injunction Order as at the close of 27 May 2025.

(3)  Given that the order sought in the Disclosure Summons is part and parcel of the Injunction Order I re-granted, the appropriate costs order would otherwise be the same as the other two Summonses, namely, the Plaintiff shall pay the Defendants’ costs of the Disclosure Summons.  However, I agree with Mr Randall that the Defendants never applied to stay the disclosure order in the original Injunction Order, never sought to explain what steps they had taken, and never sought to explain how much time they would need.  This is, put mildly, disrespect to a court order.  In the circumstances, I make no order as to costs on the Disclosure Summons.

62.Lastly, I thank Mr Ko and Mr O’Reilly, and Mr Randall for their assistance.