Nechsi Software Ltd v. Outblaze Ltd

CACV 256/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 256 OF 2009

(ON APPEAL FROM DCCJ NO. 4624 OF 2008)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon and Yuen JJA in Court

Date of Hearing: 9 December 2010

Date of Judgment: 9 December 2010

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Hon Rogers VP:

1.This is an appeal against the judgment of his Honour Judge Yung given on 14 April 2009. The matter before the judge was an application for summary judgment under Order 14.

2.The claim made on behalf of the plaintiff was that the defendant was responsible for various invoices in the period from August 2007 until November 2007, in respect of work which admittedly was being carried out by the plaintiff, which is a software company, in connection with creating software which would be used in connection with emails.  There is no need to go into the matter any further than that.

3.The defendant had raised essentially two defences.  The first defence was that it was only the intermediary for the real contracting party, which was Telecommunications & Technology Asia Limited.  The other main ground of defence was that what was produced by the plaintiff was not what was required and did not fulfil the specifications that were required. 

4.On that, it seems to me that the defendant does have a defence.  The matter is at a very early stage.  It cannot be said that judgment has to be entered against them.  I have my doubts, having read the emails, as to which party was contracting.  To this extent there may well be a strong case on the plaintiff’s behalf in that respect.  Nevertheless, I am far from satisfied that what was produced by the plaintiff satisfied what was required and, in those circumstances, there may well be not only a set-off but a counterclaim as well. 

5.In those circumstances, it seems to me that the only appropriate order would be that the defendant should have leave to defend.  I will therefore set aside the judgment in the court below and give leave to defend.  The costs in the court below should be costs in the cause and the defendant would be entitled to the costs of the appeal.

Hon Le Pichon JA:

6.I agree.

Hon Yuen JA:

7.I agree.

The Plaintiff/Respondent, in person (absent)

Ms Elizabeth Cheung, instructed by Messrs C L Chow & Macksion Chan, for the Defendant/Appellant