Mr Christmas Ltd v. K Mark Industrial Ltd

HCA 649/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 649 OF 2012

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 11 May 2012

Date of Decision: 11 May 2012

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D E C I S I O N

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1.This is an application by the plaintiff for mandatory injunction against the defendant for the return of some toolings. The toolings had been made by the defendant on the plaintiff’s orders, but the price of the toolings had been paid previously. The toolings are unencumbered.

2.The defendant opposes the application.  The ground is that the defendant arguably has a lien on these toolings for allegedly outstanding price due from the plaintiff to the defendant for goods made from these toolings. 

3.The plaintiff’s claim obviously contains a serious question to be tried but the defendant may not have any defence.  The reason being that the lien is not claimed for the price allegedly due for making the toolings themselves.  If that were the case, there may well be a lien in favour of the defendant.  But the price of the toolings had been paid and the toolings are unencumbered. 

4.Halsbury’s Laws of England, 5th edition, volume 68 of 2008 edition, para 845 at pp 286 to 287 deals with the existence of a lien, but the instances referred to therein are all cases of lien on the goods or articles for the outstanding price for their making or repair.  There is nothing that can go near the facts of this case.  The defendant therefore has not shown any arguable defence. 

5.Since the defendant has no defence to the claim, I should grant the plaintiff’s application (see Hong Kong Civil Procedure 2012, paragraph 29/1/30, Wu Wei v Liu Yi Ping, HCA1452/2004 and Yeko Trading Limited v Chow Sai Cheong Tony [200] 2 HKC 612 at 618C to I.

6.In the premises, I grant the plaintiff’s application and require the defendant to deliver up the toolings specified in schedule A1 on page 284 of the hearing bundle in terms of paragraph 1 of the plaintiff’s summons filed on 24 April 2012. 

7.I also order the defendant to pay the plaintiff’s costs of this application to be summarily assessed.

Mr Jonathan Chang, instructed by Hampton, Winter and Glynn, for the plaintiff

Mr Felix Li, instructed by Chan, Lau & Wai, for the defendant