Germain Electronic Ltd v. Ldb Sales Co Ltd and Others

DCCJ3336/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3336 OF 2007

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BETWEEN

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Coram: His Honour Judge Chow in Chambers (Open to Public)

Date of Hearing: 27 February 2009

Date of Delivery of Decision: 27 February 2009

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D E C I S I O N

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1.This application was taken out by the 1st defendant and the 2nd defendant.  The 3rd defendant was not involved because on the application form, I can only find out the signature of the 2nd defendant and the 2nd defendant signing on behalf of the 1st defendant.  There is no signature of the 3rd defendant.

2.Mr Chaiko submits that there was a concealment and an admitted mistake of the quotation on the part of the plaintiff.  That mistake would clearly allow the defendants to do the true calculations of damages in High Court Action 5439/2001, and they could file their counterclaim in this case in the District Court well within the statute of limitation.  But the High Court Action was dismissed by Registrar Queeny Au-Yeung on 7 January 2008 for want of prosecution.  That High Court Action was instituted on 19 December 2001.  So when they received Peter Chan’s affirmation on 8 March 2005, they could then have amended the statement of claim in the High Court Action so that an accurate calculation of damages in the High Court could be done.  They had full knowledge of the mistake made by the plaintiff, as disclosed in the affirmation of Peter Chan, yet the defendants did not pursue their claim in the High Court Action.  Instead, it was dismissed for want of prosecution.  They made a counterclaim in the District Court.  That would clearly be an abuse of the process because back in March 2005 they had full knowledge of their mistake and they could have done something in the High Court Action but they did not pursue their case.  As a result, that was dismissed, and then they come to make a counterclaim in the District Court.  In any event, the 1st defendant’s counterclaim is essentially a repetition of his claim in the High Court Action.  That action was abandoned and dismissed by the Registrar.  So it would be an abuse of the process in the present action to resurrect the same claim again.

3.In the present counterclaim, the 1st defendant, a limited company, says that it has suffered loss and damages.  It asked the court to ask the four plaintiffs to post a paragraph of apology in the newspaper.  Now there is no such remedy in law, and it is not a relief asked for by the 2nd and 3rd defendants.  That is paragraph 5 of the counterclaim.

4.In paragraph 8 of the counterclaim, the 1st defendant makes a claim for damages against the four plaintiffs for procuring or inducing the plaintiff to act in breach of contract, so that is not a claim made by the 2nd and 3rd defendants.

5.For items 9, 10 and 11 of the counterclaim, it only stated that a relief be made against the 1st defendant.  It is unclear whether D2 and D3 also made the claim.  Obviously, the 1st defendant makes such a claim.  Now, it appears that 9, 10 and 11 follows paragraph 8.  Under paragraph 8, the 1st defendant makes a claim against the four defendants for damages for procuring or inducing the 1st plaintiff to act in breach of contract.

6.And then paragraph 9 relates to damages for breach of contract, so it must be that the 1st defendant is the one making the claim.  And then the misrepresentation under paragraph 10 and then 11, damages for interference, are also related to the contract.  The contract is the one made between the 1st plaintiff, a limited company, and the 1st defendant, also a limited company.  So it appears that, under paragraphs 9, 10 and 11 of the counterclaim, the remedies sought thereunder were made or requested by the 1st defendant.

7.Logically, the 2nd defendant and the 3rd defendant were involved in this case, and they were executing the duties as officers or staff of the 1st defendant, so they were not acting in their personal capacity.  So it must be that paragraphs 9, 10 and 11 of the counterclaim are restricted to, or are made by, the 1st defendant.  Even if they were also made by the 2nd defendant, because of the fact that they were acting for and on behalf of the 1st defendant, so their application for relief cannot be sustained.

8.So my conclusion is that, in the counterclaim, it is the 1st defendant who makes the counterclaim.  So even if it is true that the 1st plaintiff makes a mistake in the affirmation as revealed by the affirmation of Peter Chan, it does not affect the 2nd defendant and 3rd defendants because they did not apply for relief in the counterclaim, which is only a relief applied for by the 1st defendant.

9.And because that counterclaim in substance is essentially the same as the one in the High Court Action and that action was dismissed sometime ago, it would be an abuse of process for the 1st defendant to resurrect the same matter again in this action in the District Court.  So I dismiss the application taken out by the 1st and the 2nd defendants.

(Discussion re counterclaims and costs)

10.The 1st and 2nd defendants do pay costs of this application to the plaintiff, to be taxed, if not agreed, with certificate for counsel.

Representation:

Ms Priscilla Wong, instructed by Messrs Zeke Mok & Co., for the Plaintiff

1st Defendant, in person, present

2nd Defendant, in person, present

3rd Defendant, in person, absent