Mailex Ltd v. Grefo Ltd
Read the full judgment text of HCA 3530/1982 on BabelCite. This High Court CFI judgment was delivered on 3 June 1982.
1. I need not call upon you Mr. Kong.
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HCA003530/1982
BETWEEN
_______________ Coram: Hon. Liu, J. (Chambers) Date: 3 June 1982 ____________ JUDGMENT ____________ 1. I need not call upon you Mr. Kong. 2. This is an application for two injunctions. Prayer (1) in the summons is no longer a live issue. That relates to the future conduct of the defendant, and an undertaking in terms of that prayer has been offered by Mr. Kong on behalf of the defendant including, to be more comprehensive, the defendant's directors and officers. 3. As for the second prayer in the plaintiff's summons, that concerns a signboard shown in photographs B and C referred to in the affirmation of Mr. Wong Che filed on the 17th May, 1982. 4. The parties to this action have participated in divers legal proceedings on three separate licences granted to the defendant for the use of three different floors of a building. The Plaintiff itself holds a lease of the same premises for a term of ten years from the landlord. Prior to the expiration of the licences, an action in the High Court intituled High Court Action No.57 of 1980 was commenced on the 4th January, 1980, whereby the plaintiff sought to recover possession from the defendant during the pendency of these licences on the grounds of alleged misuse and non-payment of licence fees. After the institution of that 1980 High Court Action, the defendant applied for summary judgment under Order 14. The application for summary judgment was dismissed by the Registrar, from whose decision the plaintiff appealed. That appeal was dismissed on the 23rd December, 1980. 5. After the expiration of the three licences, a further action was commenced on the 22nd December, 1981 for, inter alia, a declaration that the defendant was not entitled to any renewal and possession. Judgment in default of Defence was obtained by the plaintiff against the defendant on the 26th March, 1982. The defendant has applied for setting aside that judgment in default, and a date for the hearing of that application was fixed on the 16th June, 1982. 6. The writ in the present action was issued on the 4th May, 1982 on the narrow allegation of unlawful erection of the signboard under complaint. At the commencement of this application I indicated to Mr. Cheung, counsel for the plaintiff, certain impressions that I tentatively gained from perusal of the documents. I do not propose to repeat them which have been recorded in the Notes of Proceedings. 7. It was conceded by counsel for the plaintiff that there have been various signboards erected outside the premises by the defendant with either consent of the plaintiff or its tolerance. It was further conceded that at one time there existed no less than four signboards outside the external wall or walls to these premises. The matter can best be described with reference to the photographs exhibited to in the said affirmation of Mr. Wong Che filed on the 17th May, 1982. 8. In photograph A, we can see two signboards. One was erected soon after the signing of the licence, that is a signboard for "Evergreen Bar and Night Club". Also in photograph A, Mr. Wong in his affirmation referred to another signboard "Gold Pearl Taiwaness Style Nightclub", which was said to have been erected since the end of 1980. 9. In photograph B, according to Mr. Wong, there was on the 23rd March, 1981 erected by the defendant a comparatively larger signboard "Gentlemen Club". That signboard was objected to and subsequently removed and replaced by a smaller signboard of the same dubious description, which, I am told, can be seen from photograph D. Also appears in photograph D is a signboard erected quite some time ago bearing the characters or name of "Evergreen Bar and Night Club". 10. Next, I turn to photograph E. According to Mr. Wong the signboard for "Gentlemen Club" had by then been changed to "Tai Lee Club Little Restaurant". It was, so said Mr. Wong in his affirmation, converted some six months before the 17th May, 1982. 11. The plaintiff also complained of sign of apparent change of user, which aroused the suspicion of an unlawful parting with possession or subletting of the premises in question. But that is not, in substance, a matter of complaint in the plaintiff's present application for injunctions. 12. If indeed the plaintiff should succeed in its resistence to the defendant's application to set aside the default judgment obtained on the 26th March, 1982, it would be futile to grant any injunction in terms of Prayer (2) of its present summons as the plaintiff would then be able to recover vacant possession of the premises in suit from the defendant, thus terminating permission to use their outer walls for the erection of the signs including the one under complaint. 13. The sign under complaint is shown in photographs B and C. The allegation is, that on the 12th April, 1982 that alleged infringing sign was erected by the defendant and that on the 29th April, 1982 the English name was added on to it. This complaint of the plaintiff arose by reason of Clause 12 in each of the licences which reads as follows :
14. Counsel for the plaintiff placed little emphasis on the requirement of a written consent. As a matter of fact, the plaintiff no longer complained of the other three existing signboards presently exhibited outside the premises in question. It was further conceded by the plaintiff that the signboard under complaint was in the same position as one of the four consented to or tolerated by the plaintiff in the past. Virtually at the conclusion of his submissions, Mr. Cheung, counsel for the plaintiff, disclosed that the plaintiff would be content to have the words removed from the alleged infringing signboard and that it did not persist in having that very signboard itself dismantled and removed by the defendant. 15. From the photographs, it would appear that the alleged infringing signboard is probably the same signboard tolerated by the plaintiff in the past, but there is really no evidence on this aspect. Comparing photograph A with photographs B and C, they do suggest that the same signboard has been slightly modified on top with new characters or name changed or rearranged. However, as I have said, there is really no evidence on this aspect one way or the other. 16. It was also common ground that the use of the name or characters "Tai Lee" has since the end of last year been tolerated, i.e. about half a year before the 17th May, 1982. 17. On the facts as disclosed, the plaintiff alleged that the defendant erected this allegedly new signboard without consent. There are certain vague statements in the affirmations of Mr. Lam Po. However, in substance, according to Mr. Lam, the signboard has for a considerable period of time been in that position. What would appear to be the situation is that probably the signboard under complaint is the same signboard tolerated by the plaintiff in the past. From the tenor of the affirmations on both sides, sometimes in April different words or characters were put on it. It is now known as "Tai Lee Seafood Restaurant". The contrasting versions of these adversaries would seem to have stemmed from the different standpoints : The plaintiff has taken the signboard in the same position but with a "new" face as new and the defendant has remained to treat the "old" signboard as old. 18. The plaintiff takes strong exception to the use of different characters and name, in particular to the reference to "Restaurant". It is understandable that in this state of the evidence, both parties have maintained their allegations. As far as the defendant is concerned, the "old" signboard under complaint has always been in existence and tolerated, and once permission has been given the change of the Chinese characters or description is a matter of no significance. As far as the plaintiff is concerned, although the original signboard was consented to or tolerated in the past, a face lift with new description has turned it into a new structure which has again to be consented to in writing. The allegation from the plaintiff is, it has never been consulted or given its consent. 19. Three other signboards exhibited externally to the premises remain agreeable to the plaintiff. It is certainly not unarguable on the part of the defendant that once consent or acquiescence has come from the plaintiff to the frame of the signboard under complaint, there can be no justification for the plaintiff to insist on further consent to be obtained for the change of characters or name on it, particularly when the name. "Tai Lee" has been in use by the defendant. 20. A serious question to be tried has, therefore, arisen. It certainly has not been conclusively established at this stage by the plaintiff that there was a clear breach of the prohibition in Clause 12 of each of the licences. Thus the usual principles governing the granting of injunctions would apply. If the plaintiff were to succeed at the trial, it would be adequately compensated by damages. There has been no suggestion of any inability to meet the plaintiff's claim in damages. The defendant's loss in business or from adverse publicity of the removal of one of its signboards may well be difficult to quantity or to be adequately compensated. Signboards are essential adjuncts to a restaurant business and the business of a night club presently run by the defendant in the premises. Removal of even one would likely cause substantial damage to the defendant in monetary terms and also in terms of management. In addition, in view of the existence of the three consented or tolerated signboards, the same previous position now occupied by the signboard under complaint and the allegations of the defendant, it is my judgment that the plaintiff's application for an injunction in terms of paragraph 2 of its summons should not be acceded to. 21. As the defendant is agreeable to an undertaking in terms of paragraph 1 of the plaintiff's summons, the plaintiff's summons must therefore be dismissed with costs to the defendant.
Representation: Mr. Peter Cheung instructed by Messrs. Alexander K.H. Poa & Co. for the Plaintiff. Mr. Louis Kong of Messrs. Louis Kong & Co. for the Defendant. |