Subra International Ltd and Another v. Mathias Kurt Von Bescherer and Another
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HCA3201/2003 & IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3201 OF 2003 ----------------------------- BETWEEN
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----------------------------- (Consolidated pursuant to the Order of Master B. Kwan dated 20 February 2004) Before : Hon Burrell J in Chambers Date of Hearing : 30 May 2007 Date of Decision : 30 May 2007 Date of Reasons for Decision : 1 June 2007 ------------------------------------------------------ REASONS FOR DECISION ------------------------------------------------------ 1.This is an appeal against a master’s refusal to grant the plaintiffs’ application for leave to re-amend its statement of claim. Both before the master and on appeal the 2nd defendant has taken no objection to the proposed amendments. The 2nd defendant has made no appearance at either hearing. 2.In short the claim is for breach of a contract of employment between the plaintiffs and the 1st defendant and breach of fiduciary duties. It is claimed that whilst in the plaintiffs’ employ the 1st defendant engaged in business with the plaintiffs’ customers for his own profit. 3.The amendments sought are short. They are as follows : (amendments in italics)
4.At the conclusion of the hearing, I allowed the appeal. These are my brief reasons for so doing. 5.There are three relatively minor amendments. I shall deal with each separately. (1) “… used his position with the 1st and/or 2nd Plaintiff …” 6.The 1st defendant complains that there are insufficient particulars as to how it is said that he “used his position…” It should therefore be disallowed. 7.I regard the amendment as mere clarification of the issue to be tried. No new “use” is pleaded. The manner in which he used his position is as already pleaded. The 1st defendant knows that the case against him is that in his capacity as managing director of the plaintiffs he used confidential information, accounting and other resources. For pleading purposes I do not agree that the pleading lacks particularity and should therefore be disallowed. (2) “… or to such suppliers’ associates; …” 8.The plaintiffs’ solicitors, through correspondence, have fully explained this amendment to the 1stdefendant’s solicitors. It is clear that the best particulars available have been provided. There would be no useful purpose in pleading the particulars disclosed in correspondence into the statement of claim. Moreover, it is possible that a proper discharge of the 1st defendant’s obligation on discovery may widen the ambit of the plaintiffs’ claim. It would be unjust to restrict the plaintiffs’ claim at this stage by refusing the requested amendment. (3) “… or other goods …” 9.This amendment merely clarifies that the plaintiffs’ claim is not restricted to goods sold by the 1st defendant to the plaintiffs’ customers which were goods sourced from the plaintiffs’ suppliers. They could be goods sourced from elsewhere as well. The 1st defendant is (as in (2) above) being informed of the ambit of the case against him. The present particulars, prior to discovery, are the best that can be provided, and have been provided. Costs 10.To avoid a costs nisi order both parties were invited to make their submission on costs. I therefore make a final order. 11.The costs of and occasioned by the amendments be to the 1st defendant in any event. The costs of the hearing, here and below, be to the plaintiffs in any event.
Mr Roger Beresford, instructed by Messrs Robertsons, for the Plaintiffs in HCA3201/2003 (by Original Action) Mr Russell Bennett of Messrs Tanner De Witt, for the 1st Defendant in HCA3201/2003 (by Original Action) Messrs Minter Ellison, for the 2nd Defendant in HCA3201/2003 (by Original Action), be excused from attendance | ||||||||||||||||||||||||||||||||||||||||||||||||
Further hearings and rulings under HCA 3201/2003