HCA157/2009 HUNTLEY INTERNATIONAL LTD v. ASAP LTD IMPORT-EXPORT S.P.A - LawHero
HCA157/2009
高等法院（民事訴訟）Suffiad J17/2/2011
HCA157/2009
由此
A A
HCA157/2009
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D ACTION NO. 157 OF 2009 D
E
--------------------- E
BETWEEN
F F
HUNTLEY INTERNATIONAL LIMITED Plaintiff
G G
H
and H
I ASAP LTD IMPORT-EXPORT S.P.A. Defendant I
J
--------------------- J
K Before : Hon Suffiad J in Chambers K
Date of Hearing : 8 September 2010
L L
Date of Decision : 18 February 2011
M M
----------------------
DECISION
N ---------------------- N
O 1. By summons dated 31 December 2009, the defendant sought O
to :
P P
(i) set aside leave granted by the Master to the plaintiff for
Q Q
service out of jurisdiction of the Writ herein; and
R (ii) to stay the proceedings on the ground of lis alibi pendi under R
Order 12, rule 8 of the RHC.
S S
T T
U U
V V
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A A
2. However, at the hearing, the defendant was content not to
B B
make any submission independently on the application to stay in respect of
C the second ground contained in its summons on the basis that that second C
ground is in fact subsumed into the first ground.
D D
E 3. In the process, submissions were made by the parties only on E
the first ground as to whether the leave granted by the Master for service
F F
out of jurisdiction should be set aside.
G G
4. This Decision is therefore only concerned with the first
H H
ground sought by the defendant in its summons.
I I
5. It should also be noted that after the hearing, but before this
J J
Decision was delivered, the court was informed by letter from the
K plaintiff’s solicitors that the Italian courts have ruled that it has no K
jurisdiction to entertain the proceedings brought in Italy by the defendant
L L
suing the plaintiff and Allied Footwear Co. Ltd for breach of agreement.
M M
BACKGROUND
N N
6. The defendant, an Italian company, is a fashion goods
O O
distributor in Italy. It’s chairman and director, one Giovanni Cecchini
P (“Cecchini”), an Italian national, became acquainted with several British P
nationals by the names of James Sullivan and Daniel Sullivan (father and
Q Q
son) as well as Ezra Shahrabani (“Shahrabani”) and David Tanner
R (“Tanner”) during various fashion fairs in 2001 and 2002. R
S S
7. Through several meetings in the London office of an English
T company called Allied Footwear Co. Ltd (“Allied Footwear”) in or about T
U U
V V
由此
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A A
August 2002, the defendant on the one side, and the several British
B B
nationals above came to an oral agreement some time between September
C and November 2002 for the defendant to act as an exclusive distributor of C
a brand of shoes by the brand name “Irregular Choice” (the “IC brand”) in
D D
Italy. In so far as that oral agreement is concerned, there is some dispute
E as to who was precisely the principal party engaging the defendant to be E
the sole distributor of the IC brand, and/or who did those several British
F F
nationals represent at the time of the oral agreement.
G G
8. At the time Cecchini understood that the IC brand was
H H
designed by Daniel Sullivan (who worked at his Brighton Office with the
I name of “Design Asylum”) and that Cecchini believed or thought that the I
group of British nationals he was dealing with represented Allied Footwear
J J
in whose London office the meetings took place and in which the oral
K distribution agreement was in fact entered into. K
L L
9. However, in their later dealings, it transpired that it was the
M plaintiff company who issued invoices and received payments from the M
defendant.
N N
O 10. It now appears from the evidence that the plaintiff was the O
manufacturer of the IC brand of shoes sold to the defendant and that
P P
Shahrabani and Tanner were the financial controller and assistant financial
Q controller of the plaintiff. Q
R R
11. In 2005, the defendant was also engaged to act as the
S exclusive distributor in Italy in respect of another brand of shoes with the S
brand name “Poetic Licence” (“the PL brand”). It was understood by
T T
Cecchini that the PL brand was also designed by Daniel Sullivan but with
U U
V V
由此
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A A
one Darrin Field being put in charge of sales of the PL brand. (It should
B B
be noted here that there is a major dispute between the parties as to
C whether there was one distribution agreement, as alleged by the defendant, C
covering both the IC brand and PL brand of shoes or whether there were
D D
two separate and distinct distribution agreements, as alleged by the
E plaintiff, one for the IC brand and another for the PL brand of shoes). E
F F
12. There was no written agreement between the parties in respect
G of the distribution agreement for either the IC brand or the PL brand of G
shoes. However, there was some evidence (also a matter in dispute
H H
between the parties) to show that at some stage there was a draft agreement
I relating to the PL brand of shoes but which had never been signed between I
the parties.
J J
K THE PLAINTIFF’S CASE K
L 13. The plaintiff’s claim, which appears by its Statement of Claim, L
only relates to a breach of contract for the sole distributorship by the
M M
defendant in respect of the IC brand entered into with the defendant
N in 2002. The plaintiff does not claim for breach of contract relating to the N
PL brand which the plaintiff says was a different and separate contract
O O
entered into with the defendant at a later time.
P P
14. It is the plaintiff’s case that the plaintiff manufacture shoes
Q Q
under the IC brand.
R R
15. Shahrabani and Tanner are the financial controller and
S S
assistant financial controller of the plaintiff in charge of financial matters.
T T
U U
V V
由此
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A A
16. The defendant holds itself out as having a distribution
B B
network both in Italy and internationally. Cecchini was the director of
C the defendant and a Ms Ferri its brand manager. C
D D
17. An oral agreement (“the 2002 Agreement”) was entered into
E between the plaintiff and the defendant between September and E
November 2002 whereby the defendant would distribute exclusively shoes
F F
manufactured by the plaintiff under the IC brand in Italy and the defendant
G agreed to buy IC brand shoes from the plaintiff for distribution in Italy. G
H H
18. The terms of the 2002 Agreement were that :
I I
(a) the plaintiff appointed the defendant to exclusively distribute
J IC brand shoes; J
(b) the defendant undertook to purchase only from the plaintiff
K K
the IC brand shoes and to promote and distribute them in
L Italy; L
(c) the 2002 Agreement would continue until terminated by either
M M
party giving 6 months notice;
N (d) the defendant was to open a standby letter of credit in favour N
of the plaintiff in the sum of US$250,000 as security for
O O
payment;
P P
(e) goods were to be paid for within 60 days after receipt by the
defendant’s shipping agents in China;
Q Q
(f) orders from the defendant were to be placed in accordance
R R
with specified time periods to each season;
S (g) orders were required for minimum amounts; S
(h) deliveries by the plaintiff would be made in accordance with
T T
time periods stipulated by the plaintiff for each season
U U
V V
由此
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A A
subject to orders being received in accordance with stipulated
B B
minimums; and
C C
(i) the defendant shall meet target of 15,000 pair of shoes for
D
each season. D
E E
19. The co-operation between the plaintiff and the defendant was
F further enhanced in 2005 when the defendant was appointed as a F
distributor for the plaintiff for the PL brand of shoes, but the plaintiff says
G G
that was a separate contract between them.
H H
20. In the shoe business there are two seasons a year and certain
I I
trade practices consistent therewith were adopted.
J J
21. By letter dated 9 April 2008, the defendant gave notice to the
K K
plaintiff to terminate the 2002 Agreement with immediate effect, but as a
L result of subsequent emails and a further meeting between Daniel Sullivan L
and Shahrabani with Cecchini to discuss the 2002 Agreement, it was
M M
confirmed and agreed between the parties that :
N N
(a) the defendant would continue distributing IC brand shoes in
O
Italy exclusively; O
(b) the defendant would continue to purchase IC brand shoes
P P
from the plaintiff including for Spring/Summer 2009 and
Q
would distribute them in the Italian market; Q
(c) the parties would enter into a written agreement to record the
R R
terms of the 2002 Agreement; and
S (d) the defendant would settle all overdue debts outstanding at S
that date.
T T
U U
V V
由此
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A A
22. On 20 June 2008, the plaintiff notified the defendant that if
B B
the outstanding amount was not paid in 7 days, the plaintiff would be
C entitled to terminate the 2002 Agreement with the defendant. The C
defendant undertook to pay within 7 days and by 23 June 2008, all
D D
outstanding payments owed by the defendant were settled.
E E
23. In late June/early July 2008, the plaintiff sent catalogue for
F F
Spring/Summer 2009 to the defendant. By email dated 7 July 2008, the
G plaintiff invited comments, agreement and sales target from the defendant G
for the Spring/Summer 2009 but the defendant ignored same.
H H
I 24. In accordance with the 2002 Agreement, the plaintiff I
completed 480 pairs as samples for the Spring/Summer 2009 collection
J J
and was prepared to ship them to the defendant.
K K
25. On 1 August 2008, the defendant notified Daniel Sullivan
L L
through Skype that it did not want the samples and hence rejected same,
M thereby evincing an intention to repudiate the 2002 Agreement. Such M
repudiation was accepted by the plaintiff on 5 August 2008.
N N
O 26. As a result of the defendant’s breaches, the plaintiff suffered O
losses comprising inter alia (1) costs of the samples; and (2) loss of
P P
business of approximately US$280,000 as there was no one to distribute
Q IC brand shoes for the plaintiff in Italy. Q
R R
S S
T T
U U
V V
由此
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A A
FACTUAL MATTERS IN DISPUTE BETWEEN THE PARTIES
B B
27. This application has been complicated by the factual matters
C C
in dispute between the parties and raised by them in their respective
D affirmations filed herein. D
E E
28. In summary, the factual matters in dispute include (but are not
F limited) to the following : F
G A. Whether the plaintiff was the principal in the distribution G
agreement, or only a financial provider.
H H
B. Whether there was only one distribution agreement covering
I both the IC brand and PL brand, or whether there were two I
distinct distribution agreements.
J J
C. Disputed matters relating to the draft but unsigned agreement
K for the PL brand. K
E. Differences in the terms relating to the 2002 Agreement.
L L
F. Factual disputes relating to what was agreed in May 2008.
M M
N 29. I shall go into some detail as to each of the above items A to E N
to complete the picture as to the arguments and disagreements between the
O O
parties since the disputed matters can have a bearing on my determination
P of this matter. P
Q Q
A. Who is the principal?
R R
30. It is the plaintiff’s case that the plaintiff was the contracting
S party with the defendant for the 2002 Agreement. S
T T
U U
V V
由此
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A A
31. To this the defendant has responded that it had always been
B B
the understanding of Cecchini that he was dealing with Allied Footwear at
C its London office when the oral agreement was reached between C
September and November 2002 and that it was only later he came to know
D D
that the plaintiff’s role was issuing invoices as a financing party.
E E
32. Initially it may have appeared that the defendant was saying
F F
that the contract was only made with Allied Footwear as the principal.
G This undoubtedly was how the plaintiff read the defendant’s case, namely, G
as saying that Allied Footwear was the only contracting party with the
H H
defendant. However, on a closer reading of paragraph 7(ix) of the
I 2nd Affidavit of Wong Yuk Chung Rocky, it seems clear enough that the I
defendant agreed that the “Distribution Agreement” (which encompassed
J J
the distribution for both IC brand and PL brand) was reached between the
K defendant on the other hand, and Allied Footwear as well as the plaintiff K
on the other hand, with Allied Footwear being the principal and the
L L
plaintiff being the financial tool of Allied Footwear. Therefore the
M M
defendant does not dispute the plaintiff being a party to the Distribution
N
Agreement. N
O 33. The defendant, as stated in paragraphs 30 and 31 of the O
2nd Affidavit of Wong Yuk Chung Rocky, relying on a letter dated
P P
10 April 2008 from Darrin Field (Exhibit “WYCR-21”) to the effect that
Q Q
the plaintiff do not hold any licencing or distribution rights or shareholding
R
of the brands, but is merely the financial provider, says that the contents of R
that letter confirmed the understanding of the defendant that Allied
S S
Footwear was the principal appointing the defendant as distributor and that
T
the plaintiff had no distribution rights but only played a passive role. T
U U
V V
由此
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A A
34. This in turn prompted the plaintiff to file affidavit evidence to
B B
show that the plaintiff was the contracting party. That evidence was to
C the effect that the plaintiff was incorporated in Hong Kong in 1972 and C
James Sullivan was a shareholder in the plaintiff since 1987and was then
D D
appointed as Head of the Footwear Division. Due to convenience to
E serve the European market, Allied Footwear was set up as a branch office E
in London, it being a subsidiary of the plaintiff.
F F
G 35. The plaintiff produced a number of documents and emails as G
well as a letter dated 23 December 2008 from the defendant’s Italian
H H
lawyers (Exhibit “WCL-3”) which showed that the defendant must have
I known of the relationship between the plaintiff and Allied Footwear. I
J J
36. The plaintiff also referred to the Order sheets produced by the
K defendant (Exhibit “WYCR-8”) to show that such order forms for IC brand K
of shoes were addressed to the plaintiff’s Hong Kong office.
L L
M 37. The plaintiff also adduced evidence (in the 1st Affirmation of M
So Yiu Kwong) to the effect that the IC brand is a trademark registered in
N N
Hong Kong and other countries with Daniel Sullivan being the registered
O owner. The PL brand is also registered as a trademark in Hong Kong and O
elsewhere with James Sullivan being the registered owner. In both cases,
P P
the plaintiff says that it is the beneficial owner of the IC brand and the
Q PL brand and/or had the implied licence granted by the registered owners Q
to manufacture and distribute shoes of both those brands.
R R
S 38. On that basis the plaintiff re-iterates that it is the contracting S
party for the distribution agreement of the IC brand with the defendant,
T T
and not just a ‘financier’ as alleged by the defendant.
U U
V V
由此
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A A
39. Given the above evidence from the plaintiff, the defendant
B B
came back to say (in paragraph 11 of the 3rd Affidavit of Wong Yuk Chung
C Rocky) it did not understand why the plaintiff had to go to such lengths as C
the defendant never disputed that the plaintiff was one of the parties to the
D D
“Distribution Agreement” with the defendant, but that what the defendant
E was saying was that until it engaged lawyers in July 2008, the defendant E
was unclear as to who exactly represented the plaintiff and that the
F F
defendant was never told that Allied Footwear was a branch office of the
G plaintiff. G
H H
B. Whether one or two distribution agreements
I I
40. The plaintiff’s claim herein is based on breach of the
J 2002 Agreement for the distribution in respect of the IC brand shoes which J
the plaintiff says was an oral agreement entered into in November 2002
K K
with the defendant. Although the plaintiff acknowledges that the
L defendant was also appointed as exclusive distributor in Italy for the L
PL brand shoes later in 2005, the plaintiff says that the distribution
M M
agreement in 2005 was a totally separate and distinct agreement between
N the parties unconnected with the 2002 Agreement for the IC brand. N
O O
41. The defendant on the other hand says that the distribution
P agreement for both the IC brand shoes and the PL brand shoes was the P
same distribution agreement between them, albeit that the PL brand was
Q Q
included therein in 2005, at a later time than the IC brand.
R R
42. The effect of this disputed factual issue is that it is alleged by
S S
the plaintiff that the distribution agreement for the PL brand shoes had
T T
U U
V V
由此
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A A
been terminated by the plaintiff in March 2008 due to the constant
B B
breaches by the defendant of same.
C C
43. This is denied by the defendant. The stance taken by the
D D
defendant is that on 14 May 2008, as a result of further discussion between
E the parties, agreement was arrived at between them whereby the defendant E
would continue to act as the exclusive distributor for both the IC brand as
F F
well as the PL brand of shoes.
G G
44. For the IC brand, Daniel Sullivan had promised to send to the
H H
defendant a draft agreement by the end of May 2008 but had failed to do
I so. I
J J
45. For the PL brand of shoes, Darrin Field had attempted to
K imposed unilateral conditions on the defendant in ordering samples for K
Autumn/Winter 2008 and Spring/Summer 2009 which, when the defendant
L L
failed to agree to such unilateral terms, Darrin Field refused to further
M supply any PL brand shoes to the defendant for the Spring/Summer 2009 M
thereby being in breach of the agreement reached in May 2008.
N N
O C. Draft agreement for the PL brand O
P 46. It is alleged by the plaintiff in the 1st Affirmation of P
Wong Chun Lan that “there was a written document regarding the terms of
Q Q
the Poetic Licence Agreement” which was sent to the defendant on
R 12 September 2005. R
S S
47. However, that document was not exhibited in that
T 1st Affirmation of Wong Chun Lan. T
U U
V V
由此
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A A
48. At the request of the Master, that document was exhibited as
B B
“WCL-6” to the 2nd Affirmation of Wong Chun Lan and was shown to be
C an unsigned draft written agreement dated 2005. C
D D
49. The defendant says it has never seen the draft agreement
E “WCL-6” before but that by an email dated 5 January 2007 from one E
Roger Brown of Allied Footwear to Cecchini and copied to Darrin Field, a
F F
draft agreement containing similar terms to “WCL-6” but dated 2006 (and
G not 2005) was given to the defendant for the first time. G
H H
50. The defendant further denies that it has ever received an email
I dated 12 September 2005 under which the draft agreement was alleged by I
the plaintiff to have been sent to the defendant.
J J
K 51. It is the defendant’s case that the draft agreement sent to the K
defendant on 5 January 2007 was not signed because after discussion the
L L
parties could not reach agreement on the terms contained therein.
M M
52. This factual dispute between the parties over the draft
N N
agreement has a further bearing on the defendant’s allegation that the
O plaintiff has failed to make full and frank disclosure when this matter came O
before the Master.
P P
Q D. The oral terms agreed in 2002 Q
R 53. In so far as the plaintiff’s case is concerned, the oral terms R
agreed between the parties have already been set out in paragraph 17
S S
hereinabove.
T T
U U
V V
由此
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A A
54. On the other hand, the defendant says that at the time,
B B
Cecchini understood and agreed that in respect of the IC brand of shoes
C which were manufactured in China : C
D (a) the defendant was to be appointed by Allied Footwear as the D
exclusive distributor in Italy;
E E
(b) the IC brand of shoes were to be purchased by the defendant
F exclusively by orders placed by the defendant with F
Daniel Sullivan and/or his associates at his Brighton Office
G G
(which goes by the name of “Design Asylum”).
H (c) the defendant was to promote, re-sell or distribute the same in H
Italy at its own costs;
I I
(d) no termination date of that distribution agreement was ever
J agreed; J
K
(e) there was no discussion as to how the good were delivered but K
the practice later grew up that the samples were mostly
L delivered from the UK or China, while goods (not samples) L
were ordinarily delivered from China to the warehouse in
M M
Italy of the defendant. Goods (not samples) were to be paid
N within 60 days from the date of the invoice; N
(f) the invoices were to be issued by the plaintiff or other
O O
companies that might be appointed by Daniel Sullivan,
P James Sullivan and/or Shahrabani and to which the payment P
was to be made;
Q Q
(g) the defendant would issue a stand-by letter of credit in favour
R of the plaintiff in the sum of US$250,000 renewable R
periodically as security for payment; and
S S
T T
U U
V V
由此
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A A
(h) there was no discussion about the time limit or on the
B B
minimum placement of orders, which were only worked out
C through the parties subsequently. C
D D
E. The agreement in May 2008
E E
55. It is the defendant’s evidence that at a meeting in Florence on
F 3 March 2008 James Sullivan and Darrin Field verbally informed Cecchini F
that they intended to unilaterally terminate the distribution agreement for
G G
the PL brand of shoes and later by letter from Darrin Field dated 9 March
H 2008 which confirmed the cessation of the distributorship of the defendant H
for the PL brand of shoes in the same letter citing a long list of complaints
I I
as the reason for the cessation.
J J
56. As a result, Cecchini met Daniel Sullivan and Shahrabani on
K K
14 May 2008 at the London office of Allied Footwear in an attempt to
L resolve their differences in respect of both the IC and PL brand of shoes. L
M M
57. The defendant’s case is that at that meeting on 14 May 2008 it
N was agreed as follows : N
O (1) the defendant would continue to act as the exclusive O
distributor for the IC brand of shoes in Italy for at least
P P
3 years conditional upon the signing of a written distribution
Q agreement, of which Daniel Sullivan promised that a draft Q
would be sent to the defendant by the end of May 2008 with
R terms to be further discussed; R
S (2) in respect of the PL brand of shoes, the defendant would S
continue to act as the exclusive distributor in Italy for the
T T
Autumn/Winter 2008 and Spring/Summer 2009 season; and
U U
V V
由此
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A A
(3) as for outstanding sums owed to the plaintiff by the defendant,
B B
the defendant did promise payment of such outstanding
C amounts but no date was given. C
D D
58. It is now the defendant’s case that the plaintiff was in breach
E of the agreement reached between them on 14 May 2008 in that E
Daniel Sullivan has failed to keep his promise to send any draft written
F F
agreement to the defendant by the end of May 2008.
G G
59. Moreover, Darrin Field has imposed unilateral conditions on
H H
the defendant when ordering samples for the Autumn/Winter 2008 and
I Spring/Summer 2009 seasons and when the defendant refused to agree to I
such unilateral terms, Darrin Field has refused outright to further supply
J J
any PL brand of shoes to the defendant for the Spring/Summer 2009
K K
season, thereby breaching the agreement reached in May 2008.
L L
THE PROPER APPROACH
M M
60. The correct approach in determining an application for leave
N to serve out of jurisdiction is stated against marginal note 11/4/8F of the N
Hong Kong Civil Procedure 2011 and can be summarized as follows.
O O
P 61. On an application for leave to serve out of the jurisdiction, the P
application is decided on the affidavit evidence of the parties and the issue
Q Q
is whether upon the whole of the evidence, the plaintiff shows a good
R arguable case within one of the sub-paragraphs of Order 11, rule 1(1), or in R
the court’s discretion the order ought not to have been made or to stand, or
S S
the writ or notice was wrongly issued or the service is irregular, so that on
T these or other grounds the order, writ or service ought to be set aside. T
U U
V V
由此
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A A
62. In doing so, the court considers all the affidavit evidence filed
B B
up to the date of the hearing, not just that of the plaintiff by the time of the
C ex parte application. C
D D
63. The onus to establish a good arguable case on the merits and
E satisfy the court on forum conveniens issues remain on the plaintiff at the E
inter partes stage.
F F
G 64. Where there are disputed issues of fact essential to the G
resolution of whether the case meets the conditions prescribed for service
H H
out of the jurisdiction under Order 11, rule 1, the court should have regard
I to all the admissible material before it and not just the plaintiff’s case. I
The court has to conclude that the plaintiff has a good arguable case and
J J
not just a case that could be argued.
K K
65. The court does not usually try the case upon the affidavits, but
L L
must reach a provisional or tentative conclusion that the plaintiff is
M probably right, before allowing service outside the jurisdiction to stand. M
N N
GOOD ARGUABLE CASE
O O
66. First and foremost, it is for the plaintiff to show a good
P arguable case coming within Order 11, rule 1(1). P
Q Q
67. In the present case, the plaintiff’s application for leave is
R brought within Order 11, rule 1(1)(d)(iii), namely, that the plaintiff’s claim R
is brought in respect of the breach of a contract, being a contract which is
S S
by its terms, or by implication, governed by Hong Kong law.
T T
U U
V V
由此
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A A
68. In this respect, it was submitted by the defendant that the
B B
plaintiff needed to show a good arguable case in three respects, namely :
C C
(a) that there exists a contract;
D (b) there was a breach of that contract; and D
E (c) that contract was, by implication, governed by Hong Kong E
law (since there is no dispute that there was no express terms
F as to the governing law). F
G G
69. As for the first factor, namely, whether there exists a contract,
H H
since it is now accepted by the defendant (in paragraph 11 of the
I 3rd Affidavit of Wong Yuk Chung Rocky) that “the defendant never I
disputed that the plaintiff was one of the parties to the Distribution
J J
Agreement with the Defendant”. By that admission, it must be clear there
K is no dispute that there exists a contract between the parties. K
L L
70. It was also submitted by the defendant that the distribution
M agreement between the parties essentially leaves the quantity and the prices M
for the IC brand of shoes for each season to be determined and agreed
N N
between the parties. Accordingly, there is here only an agreement to
O agree and therefore no enforceable or binding contract between the parties. O
P P
71. I am not persuaded by this argument of the defendant. The
Q plaintiff is now suing for breach of the 2002 Agreement, which is the Q
agreement for sole distributorship of the IC brand of shoes by the
R R
defendant as a whole and not breach of any individual sales agreement for
S any particular season. Moreover, the 2002 Agreement between them has S
existed, has been ongoing and has been performed by them since 2002.
T T
U U
V V
由此
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A A
72. As for the second element, whether there has been a breach,
B B
that is a matter for trial. In this respect, I further note that the defendant
C has attempted to take out proceedings in the courts in Florence, Italy C
claiming for breach by the plaintiff and by Allied Footwear of the
D D
Distribution Agreement (which the defendant says is for both the IC brand
E and the PL brand of shoes). It would therefore seem that even from the E
standpoint of the defendant there has been a breach of the Distribution
F F
Agreement (albeit that the plaintiff says there were two separate
G agreements for IC brand and for PL brand but the defendant says there was G
only one distribution agreement for both the IC brand and the PL brand)
H H
and that the issue in dispute between them is who is in breach.
I I
73. Turning now to deal with what is the main issue in dispute
J J
between the parties in this application, namely the governing law being
K Hong Kong law. In this respect it is not in dispute that there was no K
express term contained in the 2002 Agreement for exclusive distribution
L L
by the defendant of the IC brand of shoes in Italy, as to what was the
M M
governing law. Therefore what needs to be determined in this application
N
is whether the plaintiff has made out a good arguable case for such a term N
to be implied into the 2002 Agreement.
O O
74. The question for that would appear to be the system of law
P P
with which the transaction has the closest and most real connection.
Q Q
75. In considering that question, the test laid down by Litton JA
R R
in the case of Century Yachts Ltd v Xiamen Celestial Yacht Ltd [1994] 1
S HKLR 385 at 393 is what ordinary reasonable businessmen would have S
been likely to have agreed if their minds had been directed to the question.
T T
U U
V V
由此
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A A
76. In this respect, and applying the test laid down in the Century
B B
Yachts case, one would have to go back to the circumstances prevailing at
C the time when the 2002 Agreement for the IC brand of shoes was entered C
into between the parties some time between September and
D D
November 2002.
E E
77. That oral agreement was discussed in and concluded in the
F F
London office of Allied Footwear. It was discussed between Cecchini, an
G Italian national, on the one hand and the several British nationals on the G
other hand. The IC brand of shoes, the subject matter of the distribution
H H
agreement, was designed by Daniel Sullivan working from his office
I called “Design Asylum” in Brighton and were to be marketed or promoted I
in Italy by the defendant. The IC brand of shoes were to be manufactured
J J
in China. These matters are not in dispute or cannot be disputed.
K K
78. The position adopted by the plaintiff in its submission that
L L
Hong Kong law should be implied as being the governing law has its basis
M upon the fact that this was an international trade between the plaintiff and M
the defendant and that the plaintiff, a Hong Kong company, having its
N N
administrative centre in Hong Kong thus Hong Kong being the place
O having the closest and most real connection with the contract. O
P P
79. Cecchini on the other hand says that he was always under the
Q impression, or led to believe, that he was dealing with Allied Footwear as Q
the principal and that it was only when the distribution agreement was
R R
being performed that the plaintiff also came into the picture as being the
S party to whom invoices were issued and payment made. S
T T
U U
V V
由此
- 21 -
A A
80. In this respect, there is strong support for what is claimed by
B B
Cecchini for in a letter dated 10 April 2008 from Darrin Field to Cecchini,
C the following is stated : C
D “For the record [the plaintiff] has no rights or ownership of D
Poetic Licence as a brand. Huntley International is a financial
provider of funds for production of your orders in which we pay
E E
them for their services. Huntley provides a credit facility to
you on your orders and debit recovery of unpaid amounts.
F F
…
G Further clarification on your letter April 9th in regards to the G
Brand ‘Irregular choice’ I point out that this brand is solely
owned by Dan Sullivan and recorded as such in worldwide trade
H H
mark registrations. We [the shareholders] of Poetic Licence the
brand have no distribution relationship operating with Irregular
I Choice. I cannot make any comments in regards to you making I
reference to that brand in your letter 9th April. You are aware of
this fact and have been from the beginning of the Poetic Licence
J arrangements. For any purpose of termination arrangements J
with Poetic Licence you must separate Irregular Choice and your
K arrangements. Please refer you discussion directly to the owner K
of Irregualar Choice. I can only assume you are intentionally
declaring to threaten the current arrangements you have with
L Irregular Choice and cause harm to commitments they may have L
to you and vice versa.
M Having the knowledge of the correct owners and relationship of M
Poetic Licence and its products it provides you with the
N following understanding N
1. Your distribution arrangements are [subject to the official
O distribution licence] with the brand owners Jim Sullivan O
and Dan Sullivan holding in trust including additional
partners.
P P
2. Huntley is the financial provider to you for credit and sale
Q [invoice for goods]. They do not hold any licencing or Q
distribution rights or shareholding of the brands. I cannot
answer for Huntley but I would assume any outstanding
R money owed by ASAP would be recovered in normal debt R
recovery methods.”
S S
T T
U U
V V
由此
- 22 -
A A
81. Given that as late as 2008, Cecchini was still being told that
B B
the plaintiff was merely a financial provider and do not hold any licencing
C or distribution rights or shareholding the brands (noting the plural of that C
word used), it would not be surprising that at the very outset, when the oral
D D
agreement was reached in the London office of Allied Footwear, the
E defendant may well have been completely in the dark as to the role or even E
the existence of the plaintiff.
F F
G 82. Further support could be found in the evidence, in particular G
paragraph 13 of the 1st Affirmation of So Yiu Kwong, as to why the
H H
identity or even existence of the plaintiff may not have been fully disclosed
I to the defendant at the time the 2002 oral agreement was entered into. In I
paragraph 13 of So’s 1st Affirmation, it is stated :
J J
“As the business of the Plaintiff expanded gradually especially in
K the European market, it became obvious to James Sullivan that K
the major clients of the Plaintiff would not purchase from Hong
L Kong unless there was a support office in Europe where they L
could quickly refer all problems and issues to.”
M M
83. The fact that Cecchini was dealing with officers of the
N N
plaintiff (including James Sullivan, Shahrabani and Tanner) is neither here
O nor there if the identity or role or even the existence of the plaintiff was not O
fully disclosed and made known to Cecchini when applying the test laid
P P
down in the Century Yachts case.
Q Q
84. The only evidence coming from the plaintiff as to the
R R
discussion which took place between the parties before the
S 2002 Agreement was entered into between them in 2002 is contained in S
paragraph 36 of the 1st Affirmation of So Yiu Kwong in which it is stated
T T
as follows :
U U
V V
由此
- 23 -
A A
“The Defendant was aware that the above individuals acted on
B behalf of the Plaintiff. I was informed by James Sullivan and B
Ezra Shahrabani and believe that between 2001 and 2001, [sic]
Mr. Cecchini first met James Sullivan and Ezra Shahrabani who
C C
introduced the Irregular Choice series to the Defendant on behalf
of the Plaintiff. James Sullivan and Ezra Shahrabani negotiated
D the IC Distribution Agreement on behalf of the Plaintiff in or D
around 2002.”
E E
85. Subsequently, the Affidavit of Tanner and that of Shahrabani
F F
merely confirmed the facts stated in the 1st and 2nd Affirmations of
G So Yiu Kwong to be true and accurate without adding anything thereto. G
H H
86. Given the state of the evidence, and even accepting on face
I value what was stated in paragraph 36 of So Yiu Kwong’s 1st Affirmation, I
all that can be gleaned from that was that Cecchini would have known
J J
in 2002 before the 2002 Agreement was entered into that he was dealing
K with the plaintiff. K
L L
87. While there is evidence from the plaintiff that the plaintiff is a
M company incorporated in 1972, there is no evidence from the plaintiff that M
Cecchini knew or was told in 2002 that the plaintiff was a Hong Kong
N N
company. In the affidavits of the plaintiff, the plaintiff relies on the
O contents of letters and emails all of which were in 2008 or 2009 to show O
that the defendant’s knowledge about the plaintiff. Those letters and
P P
emails cannot paint what was the picture back in 2002.
Q Q
88. On the other hand, there is also no evidence from the
R R
defendant to the effect that Cecchini did not know or was not told that the
S plaintiff was a Hong Kong company in 2002 at the time when the S
2002 Agreement was entered into.
T T
U U
V V
由此
- 24 -
A A
89. Therefore even accepting that the defendant knew in 2002 that
B B
the plaintiff was a Hong Kong company and was one of the contracting
C parties to the 2002 Agreement, given all the other circumstances as to how C
the 2002 Agreement came to be entered into, the question that must be
D D
asked and answered would be whether the plaintiff has made out a good
E arguable case to show that Hong Kong law should be implied as being the E
governing law for the 2002 Agreement.
F F
G 90. In arguing this part of the case, the plaintiff has put it on the G
footing that the plaintiff is a Hong Kong company, and the defendant an
H H
Italian company, and that “the real contest is whether the parties would
I have wanted the [2002] Agreement to be under Hong Kong law or Italian I
law.” (paragraph 23 of plaintiff’s skeleton submission refers). A number
J J
of cogent reasons were put forward by the plaintiff as to why the parties
K would not have agreed to Italian law being the governing law of the K
2002 Agreement. Those reasons briefly are that the plaintiff’s officers
L L
dealing with the defendant are all English speaking but not Italian speaking
M M
so would not have agreed to go to an Italian court using Italian law where
N
they would not have been able to follow the proceedings in the Italian N
language. On the other hand, Cecchini is a sophisticated jet-setting
O O
English speaking businessman using very good English in his letters.
P
Once Italian law can be ruled out, what remains is really Hong Kong law P
and that should be implied as being the governing law for the
Q Q
2002 Agreement.
R R
91. However, that argument by the plaintiff does not take into
S S
consideration the possibility that English law may have been what the
T T
U U
V V
由此
- 25 -
A A
parties would have said to be the governing law if they were asked at the
B B
time the 2002 Agreement was entered into by them.
C C
92. Even accepting the submission of the plaintiff and for the
D D
reasons given by it, that it would be highly unlikely that the parties to the
E 2002 Agreement would have agreed Italian law to be the governing law, E
given all the circumstances set out hereinabove, it may have been just as
F F
unlikely for them to have agreed for the governing law to be Hong Kong
G law if the defendant had not been told fully to the role of the plaintiff when G
the 2002 Agreement was entered into, so much so that even in as late as
H H
2008, the plaintiff’s role was said to be only as a financial provider.
I I
93. Applying the test laid down in the Century Yachts case, and
J J
given all the circumstances prevailing at the time the 2002 Agreement was
K entered into, I would have thought that if asked to address their minds to K
the question of the governing law, reasonable businessmen in the shoes of
L L
the parties herein more likely than not would have agreed on English law
M to be the governing law, but unlikely they would have said Hong Kong M
law.
N N
O 94. This view is one which has a valid basis when tested against O
what was stated in the draft agreement (whether the draft dated 2005 or
P P
2006) in respect of the PL brand of shoes in which the governing law was
Q expressly stated to be English law. Both versions of that draft agreement Q
appear, on their face, to have been drafted by English solicitors. Even
R R
accepting that the agreement for the PL brand of shoes was a separate and
S distinct agreement from the 2002 Agreement, the nature of that agreement S
T T
U U
V V
由此
- 26 -
A A
for the PL brand and the parties thereto would appear to be no different
B B
from the 2002 Agreement.
C C
95. It is not necessary for me to actually make a specific finding
D D
that the governing law to be implied for the 2002 Agreement would be
E English law. It is sufficient for me simply to hold that the plaintiff has E
failed make out an arguable case that the governing law for the
F F
2002 Agreement to be Hong Kong law.
G G
96. It follows therefrom that the plaintiff has failed to make out an
H H
arguable case that the claim herein is one that falls within Order 11,
I rule 1(1)(d)(iii). Jurisdiction of this court has therefore not been made I
out by the plaintiff.
J J
K 97. Accordingly, and on that alone the leave granted by the K
Master must be set aside.
L L
M 98. In the circumstances, it would not be necessary for me to go M
into the further issue of exercise of discretion, namely, whether there is a
N N
serious question to be tried or whether for some other reasons, leave
O should not be granted. O
P P
99. I should further add that in view of the conclusion come to
Q above that the plaintiff has failed to make out an arguable case that the Q
claim herein is one which falls within Order 11, rule 1(1)(d)(iii) and
R R
therefore the jurisdiction of this court has not been made out by the
S plaintiff, the fact that the court in Italy has declined jurisdiction in the S
Italian proceedings brought by the defendant against the plaintiff and
T T
U U
V V
由此
- 27 -
A A
Allied Footwear is not a matter which can have any bearing or relevance
B B
upon my decision herein.
C C
COSTS
D D
100. There will be a costs order nisi that the plaintiff is to bear the
E E
costs of the ex parte application before the Master and to pay the
F defendant’s costs of this application and of the hearing, to be taxed if not F
agreed.
G G
H H
I I
J J
(A.R. Suffiad)
K Judge of the Court of First Instance K
High Court
L L
Mr Jose-Antonio Maurellet, instructed by Messrs Tanner De Witt,
M M
for the Plaintiff
N Mr Simon Chiu, instructed by Messrs Sit, Fung, Kwong & Shum, N
for the Defendant
O O
P P
Q Q
R R
S S
T T
U U
V V
HUNTLEY INTERNATIONAL LTD v. ASAP LTD IMPORT-EXPORT S.P.A
由此
A A
HCA157/2009
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D ACTION NO. 157 OF 2009 D
E
--------------------- E
BETWEEN
F F
HUNTLEY INTERNATIONAL LIMITED Plaintiff
G G
H
and H
I ASAP LTD IMPORT-EXPORT S.P.A. Defendant I
J
--------------------- J
K Before : Hon Suffiad J in Chambers K
Date of Hearing : 8 September 2010
L L
Date of Decision : 18 February 2011
M M
----------------------
DECISION
N ---------------------- N
O 1. By summons dated 31 December 2009, the defendant sought O
to :
P P
(i) set aside leave granted by the Master to the plaintiff for
Q Q
service out of jurisdiction of the Writ herein; and
R (ii) to stay the proceedings on the ground of lis alibi pendi under R
Order 12, rule 8 of the RHC.
S S
T T
U U
V V
由此
- 2 -
A A
2. However, at the hearing, the defendant was content not to
B B
make any submission independently on the application to stay in respect of
C the second ground contained in its summons on the basis that that second C
ground is in fact subsumed into the first ground.
D D
E 3. In the process, submissions were made by the parties only on E
the first ground as to whether the leave granted by the Master for service
F F
out of jurisdiction should be set aside.
G G
4. This Decision is therefore only concerned with the first
H H
ground sought by the defendant in its summons.
I I
5. It should also be noted that after the hearing, but before this
J J
Decision was delivered, the court was informed by letter from the
K plaintiff’s solicitors that the Italian courts have ruled that it has no K
jurisdiction to entertain the proceedings brought in Italy by the defendant
L L
suing the plaintiff and Allied Footwear Co. Ltd for breach of agreement.
M M
BACKGROUND
N N
6. The defendant, an Italian company, is a fashion goods
O O
distributor in Italy. It’s chairman and director, one Giovanni Cecchini
P (“Cecchini”), an Italian national, became acquainted with several British P
nationals by the names of James Sullivan and Daniel Sullivan (father and
Q Q
son) as well as Ezra Shahrabani (“Shahrabani”) and David Tanner
R (“Tanner”) during various fashion fairs in 2001 and 2002. R
S S
7. Through several meetings in the London office of an English
T company called Allied Footwear Co. Ltd (“Allied Footwear”) in or about T
U U
V V
由此
- 3 -
A A
August 2002, the defendant on the one side, and the several British
B B
nationals above came to an oral agreement some time between September
C and November 2002 for the defendant to act as an exclusive distributor of C
a brand of shoes by the brand name “Irregular Choice” (the “IC brand”) in
D D
Italy. In so far as that oral agreement is concerned, there is some dispute
E as to who was precisely the principal party engaging the defendant to be E
the sole distributor of the IC brand, and/or who did those several British
F F
nationals represent at the time of the oral agreement.
G G
8. At the time Cecchini understood that the IC brand was
H H
designed by Daniel Sullivan (who worked at his Brighton Office with the
I name of “Design Asylum”) and that Cecchini believed or thought that the I
group of British nationals he was dealing with represented Allied Footwear
J J
in whose London office the meetings took place and in which the oral
K distribution agreement was in fact entered into. K
L L
9. However, in their later dealings, it transpired that it was the
M plaintiff company who issued invoices and received payments from the M
defendant.
N N
O 10. It now appears from the evidence that the plaintiff was the O
manufacturer of the IC brand of shoes sold to the defendant and that
P P
Shahrabani and Tanner were the financial controller and assistant financial
Q controller of the plaintiff. Q
R R
11. In 2005, the defendant was also engaged to act as the
S exclusive distributor in Italy in respect of another brand of shoes with the S
brand name “Poetic Licence” (“the PL brand”). It was understood by
T T
Cecchini that the PL brand was also designed by Daniel Sullivan but with
U U
V V
由此
- 4 -
A A
one Darrin Field being put in charge of sales of the PL brand. (It should
B B
be noted here that there is a major dispute between the parties as to
C whether there was one distribution agreement, as alleged by the defendant, C
covering both the IC brand and PL brand of shoes or whether there were
D D
two separate and distinct distribution agreements, as alleged by the
E plaintiff, one for the IC brand and another for the PL brand of shoes). E
F F
12. There was no written agreement between the parties in respect
G of the distribution agreement for either the IC brand or the PL brand of G
shoes. However, there was some evidence (also a matter in dispute
H H
between the parties) to show that at some stage there was a draft agreement
I relating to the PL brand of shoes but which had never been signed between I
the parties.
J J
K THE PLAINTIFF’S CASE K
L 13. The plaintiff’s claim, which appears by its Statement of Claim, L
only relates to a breach of contract for the sole distributorship by the
M M
defendant in respect of the IC brand entered into with the defendant
N in 2002. The plaintiff does not claim for breach of contract relating to the N
PL brand which the plaintiff says was a different and separate contract
O O
entered into with the defendant at a later time.
P P
14. It is the plaintiff’s case that the plaintiff manufacture shoes
Q Q
under the IC brand.
R R
15. Shahrabani and Tanner are the financial controller and
S S
assistant financial controller of the plaintiff in charge of financial matters.
T T
U U
V V
由此
- 5 -
A A
16. The defendant holds itself out as having a distribution
B B
network both in Italy and internationally. Cecchini was the director of
C the defendant and a Ms Ferri its brand manager. C
D D
17. An oral agreement (“the 2002 Agreement”) was entered into
E between the plaintiff and the defendant between September and E
November 2002 whereby the defendant would distribute exclusively shoes
F F
manufactured by the plaintiff under the IC brand in Italy and the defendant
G agreed to buy IC brand shoes from the plaintiff for distribution in Italy. G
H H
18. The terms of the 2002 Agreement were that :
I I
(a) the plaintiff appointed the defendant to exclusively distribute
J IC brand shoes; J
(b) the defendant undertook to purchase only from the plaintiff
K K
the IC brand shoes and to promote and distribute them in
L Italy; L
(c) the 2002 Agreement would continue until terminated by either
M M
party giving 6 months notice;
N (d) the defendant was to open a standby letter of credit in favour N
of the plaintiff in the sum of US$250,000 as security for
O O
payment;
P P
(e) goods were to be paid for within 60 days after receipt by the
defendant’s shipping agents in China;
Q Q
(f) orders from the defendant were to be placed in accordance
R R
with specified time periods to each season;
S (g) orders were required for minimum amounts; S
(h) deliveries by the plaintiff would be made in accordance with
T T
time periods stipulated by the plaintiff for each season
U U
V V
由此
- 6 -
A A
subject to orders being received in accordance with stipulated
B B
minimums; and
C C
(i) the defendant shall meet target of 15,000 pair of shoes for
D
each season. D
E E
19. The co-operation between the plaintiff and the defendant was
F further enhanced in 2005 when the defendant was appointed as a F
distributor for the plaintiff for the PL brand of shoes, but the plaintiff says
G G
that was a separate contract between them.
H H
20. In the shoe business there are two seasons a year and certain
I I
trade practices consistent therewith were adopted.
J J
21. By letter dated 9 April 2008, the defendant gave notice to the
K K
plaintiff to terminate the 2002 Agreement with immediate effect, but as a
L result of subsequent emails and a further meeting between Daniel Sullivan L
and Shahrabani with Cecchini to discuss the 2002 Agreement, it was
M M
confirmed and agreed between the parties that :
N N
(a) the defendant would continue distributing IC brand shoes in
O
Italy exclusively; O
(b) the defendant would continue to purchase IC brand shoes
P P
from the plaintiff including for Spring/Summer 2009 and
Q
would distribute them in the Italian market; Q
(c) the parties would enter into a written agreement to record the
R R
terms of the 2002 Agreement; and
S (d) the defendant would settle all overdue debts outstanding at S
that date.
T T
U U
V V
由此
- 7 -
A A
22. On 20 June 2008, the plaintiff notified the defendant that if
B B
the outstanding amount was not paid in 7 days, the plaintiff would be
C entitled to terminate the 2002 Agreement with the defendant. The C
defendant undertook to pay within 7 days and by 23 June 2008, all
D D
outstanding payments owed by the defendant were settled.
E E
23. In late June/early July 2008, the plaintiff sent catalogue for
F F
Spring/Summer 2009 to the defendant. By email dated 7 July 2008, the
G plaintiff invited comments, agreement and sales target from the defendant G
for the Spring/Summer 2009 but the defendant ignored same.
H H
I 24. In accordance with the 2002 Agreement, the plaintiff I
completed 480 pairs as samples for the Spring/Summer 2009 collection
J J
and was prepared to ship them to the defendant.
K K
25. On 1 August 2008, the defendant notified Daniel Sullivan
L L
through Skype that it did not want the samples and hence rejected same,
M thereby evincing an intention to repudiate the 2002 Agreement. Such M
repudiation was accepted by the plaintiff on 5 August 2008.
N N
O 26. As a result of the defendant’s breaches, the plaintiff suffered O
losses comprising inter alia (1) costs of the samples; and (2) loss of
P P
business of approximately US$280,000 as there was no one to distribute
Q IC brand shoes for the plaintiff in Italy. Q
R R
S S
T T
U U
V V
由此
- 8 -
A A
FACTUAL MATTERS IN DISPUTE BETWEEN THE PARTIES
B B
27. This application has been complicated by the factual matters
C C
in dispute between the parties and raised by them in their respective
D affirmations filed herein. D
E E
28. In summary, the factual matters in dispute include (but are not
F limited) to the following : F
G A. Whether the plaintiff was the principal in the distribution G
agreement, or only a financial provider.
H H
B. Whether there was only one distribution agreement covering
I both the IC brand and PL brand, or whether there were two I
distinct distribution agreements.
J J
C. Disputed matters relating to the draft but unsigned agreement
K for the PL brand. K
E. Differences in the terms relating to the 2002 Agreement.
L L
F. Factual disputes relating to what was agreed in May 2008.
M M
N 29. I shall go into some detail as to each of the above items A to E N
to complete the picture as to the arguments and disagreements between the
O O
parties since the disputed matters can have a bearing on my determination
P of this matter. P
Q Q
A. Who is the principal?
R R
30. It is the plaintiff’s case that the plaintiff was the contracting
S party with the defendant for the 2002 Agreement. S
T T
U U
V V
由此
- 9 -
A A
31. To this the defendant has responded that it had always been
B B
the understanding of Cecchini that he was dealing with Allied Footwear at
C its London office when the oral agreement was reached between C
September and November 2002 and that it was only later he came to know
D D
that the plaintiff’s role was issuing invoices as a financing party.
E E
32. Initially it may have appeared that the defendant was saying
F F
that the contract was only made with Allied Footwear as the principal.
G This undoubtedly was how the plaintiff read the defendant’s case, namely, G
as saying that Allied Footwear was the only contracting party with the
H H
defendant. However, on a closer reading of paragraph 7(ix) of the
I 2nd Affidavit of Wong Yuk Chung Rocky, it seems clear enough that the I
defendant agreed that the “Distribution Agreement” (which encompassed
J J
the distribution for both IC brand and PL brand) was reached between the
K defendant on the other hand, and Allied Footwear as well as the plaintiff K
on the other hand, with Allied Footwear being the principal and the
L L
plaintiff being the financial tool of Allied Footwear. Therefore the
M M
defendant does not dispute the plaintiff being a party to the Distribution
N
Agreement. N
O 33. The defendant, as stated in paragraphs 30 and 31 of the O
2nd Affidavit of Wong Yuk Chung Rocky, relying on a letter dated
P P
10 April 2008 from Darrin Field (Exhibit “WYCR-21”) to the effect that
Q Q
the plaintiff do not hold any licencing or distribution rights or shareholding
R
of the brands, but is merely the financial provider, says that the contents of R
that letter confirmed the understanding of the defendant that Allied
S S
Footwear was the principal appointing the defendant as distributor and that
T
the plaintiff had no distribution rights but only played a passive role. T
U U
V V
由此
- 10 -
A A
34. This in turn prompted the plaintiff to file affidavit evidence to
B B
show that the plaintiff was the contracting party. That evidence was to
C the effect that the plaintiff was incorporated in Hong Kong in 1972 and C
James Sullivan was a shareholder in the plaintiff since 1987and was then
D D
appointed as Head of the Footwear Division. Due to convenience to
E serve the European market, Allied Footwear was set up as a branch office E
in London, it being a subsidiary of the plaintiff.
F F
G 35. The plaintiff produced a number of documents and emails as G
well as a letter dated 23 December 2008 from the defendant’s Italian
H H
lawyers (Exhibit “WCL-3”) which showed that the defendant must have
I known of the relationship between the plaintiff and Allied Footwear. I
J J
36. The plaintiff also referred to the Order sheets produced by the
K defendant (Exhibit “WYCR-8”) to show that such order forms for IC brand K
of shoes were addressed to the plaintiff’s Hong Kong office.
L L
M 37. The plaintiff also adduced evidence (in the 1st Affirmation of M
So Yiu Kwong) to the effect that the IC brand is a trademark registered in
N N
Hong Kong and other countries with Daniel Sullivan being the registered
O owner. The PL brand is also registered as a trademark in Hong Kong and O
elsewhere with James Sullivan being the registered owner. In both cases,
P P
the plaintiff says that it is the beneficial owner of the IC brand and the
Q PL brand and/or had the implied licence granted by the registered owners Q
to manufacture and distribute shoes of both those brands.
R R
S 38. On that basis the plaintiff re-iterates that it is the contracting S
party for the distribution agreement of the IC brand with the defendant,
T T
and not just a ‘financier’ as alleged by the defendant.
U U
V V
由此
- 11 -
A A
39. Given the above evidence from the plaintiff, the defendant
B B
came back to say (in paragraph 11 of the 3rd Affidavit of Wong Yuk Chung
C Rocky) it did not understand why the plaintiff had to go to such lengths as C
the defendant never disputed that the plaintiff was one of the parties to the
D D
“Distribution Agreement” with the defendant, but that what the defendant
E was saying was that until it engaged lawyers in July 2008, the defendant E
was unclear as to who exactly represented the plaintiff and that the
F F
defendant was never told that Allied Footwear was a branch office of the
G plaintiff. G
H H
B. Whether one or two distribution agreements
I I
40. The plaintiff’s claim herein is based on breach of the
J 2002 Agreement for the distribution in respect of the IC brand shoes which J
the plaintiff says was an oral agreement entered into in November 2002
K K
with the defendant. Although the plaintiff acknowledges that the
L defendant was also appointed as exclusive distributor in Italy for the L
PL brand shoes later in 2005, the plaintiff says that the distribution
M M
agreement in 2005 was a totally separate and distinct agreement between
N the parties unconnected with the 2002 Agreement for the IC brand. N
O O
41. The defendant on the other hand says that the distribution
P agreement for both the IC brand shoes and the PL brand shoes was the P
same distribution agreement between them, albeit that the PL brand was
Q Q
included therein in 2005, at a later time than the IC brand.
R R
42. The effect of this disputed factual issue is that it is alleged by
S S
the plaintiff that the distribution agreement for the PL brand shoes had
T T
U U
V V
由此
- 12 -
A A
been terminated by the plaintiff in March 2008 due to the constant
B B
breaches by the defendant of same.
C C
43. This is denied by the defendant. The stance taken by the
D D
defendant is that on 14 May 2008, as a result of further discussion between
E the parties, agreement was arrived at between them whereby the defendant E
would continue to act as the exclusive distributor for both the IC brand as
F F
well as the PL brand of shoes.
G G
44. For the IC brand, Daniel Sullivan had promised to send to the
H H
defendant a draft agreement by the end of May 2008 but had failed to do
I so. I
J J
45. For the PL brand of shoes, Darrin Field had attempted to
K imposed unilateral conditions on the defendant in ordering samples for K
Autumn/Winter 2008 and Spring/Summer 2009 which, when the defendant
L L
failed to agree to such unilateral terms, Darrin Field refused to further
M supply any PL brand shoes to the defendant for the Spring/Summer 2009 M
thereby being in breach of the agreement reached in May 2008.
N N
O C. Draft agreement for the PL brand O
P 46. It is alleged by the plaintiff in the 1st Affirmation of P
Wong Chun Lan that “there was a written document regarding the terms of
Q Q
the Poetic Licence Agreement” which was sent to the defendant on
R 12 September 2005. R
S S
47. However, that document was not exhibited in that
T 1st Affirmation of Wong Chun Lan. T
U U
V V
由此
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A A
48. At the request of the Master, that document was exhibited as
B B
“WCL-6” to the 2nd Affirmation of Wong Chun Lan and was shown to be
C an unsigned draft written agreement dated 2005. C
D D
49. The defendant says it has never seen the draft agreement
E “WCL-6” before but that by an email dated 5 January 2007 from one E
Roger Brown of Allied Footwear to Cecchini and copied to Darrin Field, a
F F
draft agreement containing similar terms to “WCL-6” but dated 2006 (and
G not 2005) was given to the defendant for the first time. G
H H
50. The defendant further denies that it has ever received an email
I dated 12 September 2005 under which the draft agreement was alleged by I
the plaintiff to have been sent to the defendant.
J J
K 51. It is the defendant’s case that the draft agreement sent to the K
defendant on 5 January 2007 was not signed because after discussion the
L L
parties could not reach agreement on the terms contained therein.
M M
52. This factual dispute between the parties over the draft
N N
agreement has a further bearing on the defendant’s allegation that the
O plaintiff has failed to make full and frank disclosure when this matter came O
before the Master.
P P
Q D. The oral terms agreed in 2002 Q
R 53. In so far as the plaintiff’s case is concerned, the oral terms R
agreed between the parties have already been set out in paragraph 17
S S
hereinabove.
T T
U U
V V
由此
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A A
54. On the other hand, the defendant says that at the time,
B B
Cecchini understood and agreed that in respect of the IC brand of shoes
C which were manufactured in China : C
D (a) the defendant was to be appointed by Allied Footwear as the D
exclusive distributor in Italy;
E E
(b) the IC brand of shoes were to be purchased by the defendant
F exclusively by orders placed by the defendant with F
Daniel Sullivan and/or his associates at his Brighton Office
G G
(which goes by the name of “Design Asylum”).
H (c) the defendant was to promote, re-sell or distribute the same in H
Italy at its own costs;
I I
(d) no termination date of that distribution agreement was ever
J agreed; J
K
(e) there was no discussion as to how the good were delivered but K
the practice later grew up that the samples were mostly
L delivered from the UK or China, while goods (not samples) L
were ordinarily delivered from China to the warehouse in
M M
Italy of the defendant. Goods (not samples) were to be paid
N within 60 days from the date of the invoice; N
(f) the invoices were to be issued by the plaintiff or other
O O
companies that might be appointed by Daniel Sullivan,
P James Sullivan and/or Shahrabani and to which the payment P
was to be made;
Q Q
(g) the defendant would issue a stand-by letter of credit in favour
R of the plaintiff in the sum of US$250,000 renewable R
periodically as security for payment; and
S S
T T
U U
V V
由此
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A A
(h) there was no discussion about the time limit or on the
B B
minimum placement of orders, which were only worked out
C through the parties subsequently. C
D D
E. The agreement in May 2008
E E
55. It is the defendant’s evidence that at a meeting in Florence on
F 3 March 2008 James Sullivan and Darrin Field verbally informed Cecchini F
that they intended to unilaterally terminate the distribution agreement for
G G
the PL brand of shoes and later by letter from Darrin Field dated 9 March
H 2008 which confirmed the cessation of the distributorship of the defendant H
for the PL brand of shoes in the same letter citing a long list of complaints
I I
as the reason for the cessation.
J J
56. As a result, Cecchini met Daniel Sullivan and Shahrabani on
K K
14 May 2008 at the London office of Allied Footwear in an attempt to
L resolve their differences in respect of both the IC and PL brand of shoes. L
M M
57. The defendant’s case is that at that meeting on 14 May 2008 it
N was agreed as follows : N
O (1) the defendant would continue to act as the exclusive O
distributor for the IC brand of shoes in Italy for at least
P P
3 years conditional upon the signing of a written distribution
Q agreement, of which Daniel Sullivan promised that a draft Q
would be sent to the defendant by the end of May 2008 with
R terms to be further discussed; R
S (2) in respect of the PL brand of shoes, the defendant would S
continue to act as the exclusive distributor in Italy for the
T T
Autumn/Winter 2008 and Spring/Summer 2009 season; and
U U
V V
由此
- 16 -
A A
(3) as for outstanding sums owed to the plaintiff by the defendant,
B B
the defendant did promise payment of such outstanding
C amounts but no date was given. C
D D
58. It is now the defendant’s case that the plaintiff was in breach
E of the agreement reached between them on 14 May 2008 in that E
Daniel Sullivan has failed to keep his promise to send any draft written
F F
agreement to the defendant by the end of May 2008.
G G
59. Moreover, Darrin Field has imposed unilateral conditions on
H H
the defendant when ordering samples for the Autumn/Winter 2008 and
I Spring/Summer 2009 seasons and when the defendant refused to agree to I
such unilateral terms, Darrin Field has refused outright to further supply
J J
any PL brand of shoes to the defendant for the Spring/Summer 2009
K K
season, thereby breaching the agreement reached in May 2008.
L L
THE PROPER APPROACH
M M
60. The correct approach in determining an application for leave
N to serve out of jurisdiction is stated against marginal note 11/4/8F of the N
Hong Kong Civil Procedure 2011 and can be summarized as follows.
O O
P 61. On an application for leave to serve out of the jurisdiction, the P
application is decided on the affidavit evidence of the parties and the issue
Q Q
is whether upon the whole of the evidence, the plaintiff shows a good
R arguable case within one of the sub-paragraphs of Order 11, rule 1(1), or in R
the court’s discretion the order ought not to have been made or to stand, or
S S
the writ or notice was wrongly issued or the service is irregular, so that on
T these or other grounds the order, writ or service ought to be set aside. T
U U
V V
由此
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A A
62. In doing so, the court considers all the affidavit evidence filed
B B
up to the date of the hearing, not just that of the plaintiff by the time of the
C ex parte application. C
D D
63. The onus to establish a good arguable case on the merits and
E satisfy the court on forum conveniens issues remain on the plaintiff at the E
inter partes stage.
F F
G 64. Where there are disputed issues of fact essential to the G
resolution of whether the case meets the conditions prescribed for service
H H
out of the jurisdiction under Order 11, rule 1, the court should have regard
I to all the admissible material before it and not just the plaintiff’s case. I
The court has to conclude that the plaintiff has a good arguable case and
J J
not just a case that could be argued.
K K
65. The court does not usually try the case upon the affidavits, but
L L
must reach a provisional or tentative conclusion that the plaintiff is
M probably right, before allowing service outside the jurisdiction to stand. M
N N
GOOD ARGUABLE CASE
O O
66. First and foremost, it is for the plaintiff to show a good
P arguable case coming within Order 11, rule 1(1). P
Q Q
67. In the present case, the plaintiff’s application for leave is
R brought within Order 11, rule 1(1)(d)(iii), namely, that the plaintiff’s claim R
is brought in respect of the breach of a contract, being a contract which is
S S
by its terms, or by implication, governed by Hong Kong law.
T T
U U
V V
由此
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A A
68. In this respect, it was submitted by the defendant that the
B B
plaintiff needed to show a good arguable case in three respects, namely :
C C
(a) that there exists a contract;
D (b) there was a breach of that contract; and D
E (c) that contract was, by implication, governed by Hong Kong E
law (since there is no dispute that there was no express terms
F as to the governing law). F
G G
69. As for the first factor, namely, whether there exists a contract,
H H
since it is now accepted by the defendant (in paragraph 11 of the
I 3rd Affidavit of Wong Yuk Chung Rocky) that “the defendant never I
disputed that the plaintiff was one of the parties to the Distribution
J J
Agreement with the Defendant”. By that admission, it must be clear there
K is no dispute that there exists a contract between the parties. K
L L
70. It was also submitted by the defendant that the distribution
M agreement between the parties essentially leaves the quantity and the prices M
for the IC brand of shoes for each season to be determined and agreed
N N
between the parties. Accordingly, there is here only an agreement to
O agree and therefore no enforceable or binding contract between the parties. O
P P
71. I am not persuaded by this argument of the defendant. The
Q plaintiff is now suing for breach of the 2002 Agreement, which is the Q
agreement for sole distributorship of the IC brand of shoes by the
R R
defendant as a whole and not breach of any individual sales agreement for
S any particular season. Moreover, the 2002 Agreement between them has S
existed, has been ongoing and has been performed by them since 2002.
T T
U U
V V
由此
- 19 -
A A
72. As for the second element, whether there has been a breach,
B B
that is a matter for trial. In this respect, I further note that the defendant
C has attempted to take out proceedings in the courts in Florence, Italy C
claiming for breach by the plaintiff and by Allied Footwear of the
D D
Distribution Agreement (which the defendant says is for both the IC brand
E and the PL brand of shoes). It would therefore seem that even from the E
standpoint of the defendant there has been a breach of the Distribution
F F
Agreement (albeit that the plaintiff says there were two separate
G agreements for IC brand and for PL brand but the defendant says there was G
only one distribution agreement for both the IC brand and the PL brand)
H H
and that the issue in dispute between them is who is in breach.
I I
73. Turning now to deal with what is the main issue in dispute
J J
between the parties in this application, namely the governing law being
K Hong Kong law. In this respect it is not in dispute that there was no K
express term contained in the 2002 Agreement for exclusive distribution
L L
by the defendant of the IC brand of shoes in Italy, as to what was the
M M
governing law. Therefore what needs to be determined in this application
N
is whether the plaintiff has made out a good arguable case for such a term N
to be implied into the 2002 Agreement.
O O
74. The question for that would appear to be the system of law
P P
with which the transaction has the closest and most real connection.
Q Q
75. In considering that question, the test laid down by Litton JA
R R
in the case of Century Yachts Ltd v Xiamen Celestial Yacht Ltd [1994] 1
S HKLR 385 at 393 is what ordinary reasonable businessmen would have S
been likely to have agreed if their minds had been directed to the question.
T T
U U
V V
由此
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A A
76. In this respect, and applying the test laid down in the Century
B B
Yachts case, one would have to go back to the circumstances prevailing at
C the time when the 2002 Agreement for the IC brand of shoes was entered C
into between the parties some time between September and
D D
November 2002.
E E
77. That oral agreement was discussed in and concluded in the
F F
London office of Allied Footwear. It was discussed between Cecchini, an
G Italian national, on the one hand and the several British nationals on the G
other hand. The IC brand of shoes, the subject matter of the distribution
H H
agreement, was designed by Daniel Sullivan working from his office
I called “Design Asylum” in Brighton and were to be marketed or promoted I
in Italy by the defendant. The IC brand of shoes were to be manufactured
J J
in China. These matters are not in dispute or cannot be disputed.
K K
78. The position adopted by the plaintiff in its submission that
L L
Hong Kong law should be implied as being the governing law has its basis
M upon the fact that this was an international trade between the plaintiff and M
the defendant and that the plaintiff, a Hong Kong company, having its
N N
administrative centre in Hong Kong thus Hong Kong being the place
O having the closest and most real connection with the contract. O
P P
79. Cecchini on the other hand says that he was always under the
Q impression, or led to believe, that he was dealing with Allied Footwear as Q
the principal and that it was only when the distribution agreement was
R R
being performed that the plaintiff also came into the picture as being the
S party to whom invoices were issued and payment made. S
T T
U U
V V
由此
- 21 -
A A
80. In this respect, there is strong support for what is claimed by
B B
Cecchini for in a letter dated 10 April 2008 from Darrin Field to Cecchini,
C the following is stated : C
D “For the record [the plaintiff] has no rights or ownership of D
Poetic Licence as a brand. Huntley International is a financial
provider of funds for production of your orders in which we pay
E E
them for their services. Huntley provides a credit facility to
you on your orders and debit recovery of unpaid amounts.
F F
…
G Further clarification on your letter April 9th in regards to the G
Brand ‘Irregular choice’ I point out that this brand is solely
owned by Dan Sullivan and recorded as such in worldwide trade
H H
mark registrations. We [the shareholders] of Poetic Licence the
brand have no distribution relationship operating with Irregular
I Choice. I cannot make any comments in regards to you making I
reference to that brand in your letter 9th April. You are aware of
this fact and have been from the beginning of the Poetic Licence
J arrangements. For any purpose of termination arrangements J
with Poetic Licence you must separate Irregular Choice and your
K arrangements. Please refer you discussion directly to the owner K
of Irregualar Choice. I can only assume you are intentionally
declaring to threaten the current arrangements you have with
L Irregular Choice and cause harm to commitments they may have L
to you and vice versa.
M Having the knowledge of the correct owners and relationship of M
Poetic Licence and its products it provides you with the
N following understanding N
1. Your distribution arrangements are [subject to the official
O distribution licence] with the brand owners Jim Sullivan O
and Dan Sullivan holding in trust including additional
partners.
P P
2. Huntley is the financial provider to you for credit and sale
Q [invoice for goods]. They do not hold any licencing or Q
distribution rights or shareholding of the brands. I cannot
answer for Huntley but I would assume any outstanding
R money owed by ASAP would be recovered in normal debt R
recovery methods.”
S S
T T
U U
V V
由此
- 22 -
A A
81. Given that as late as 2008, Cecchini was still being told that
B B
the plaintiff was merely a financial provider and do not hold any licencing
C or distribution rights or shareholding the brands (noting the plural of that C
word used), it would not be surprising that at the very outset, when the oral
D D
agreement was reached in the London office of Allied Footwear, the
E defendant may well have been completely in the dark as to the role or even E
the existence of the plaintiff.
F F
G 82. Further support could be found in the evidence, in particular G
paragraph 13 of the 1st Affirmation of So Yiu Kwong, as to why the
H H
identity or even existence of the plaintiff may not have been fully disclosed
I to the defendant at the time the 2002 oral agreement was entered into. In I
paragraph 13 of So’s 1st Affirmation, it is stated :
J J
“As the business of the Plaintiff expanded gradually especially in
K the European market, it became obvious to James Sullivan that K
the major clients of the Plaintiff would not purchase from Hong
L Kong unless there was a support office in Europe where they L
could quickly refer all problems and issues to.”
M M
83. The fact that Cecchini was dealing with officers of the
N N
plaintiff (including James Sullivan, Shahrabani and Tanner) is neither here
O nor there if the identity or role or even the existence of the plaintiff was not O
fully disclosed and made known to Cecchini when applying the test laid
P P
down in the Century Yachts case.
Q Q
84. The only evidence coming from the plaintiff as to the
R R
discussion which took place between the parties before the
S 2002 Agreement was entered into between them in 2002 is contained in S
paragraph 36 of the 1st Affirmation of So Yiu Kwong in which it is stated
T T
as follows :
U U
V V
由此
- 23 -
A A
“The Defendant was aware that the above individuals acted on
B behalf of the Plaintiff. I was informed by James Sullivan and B
Ezra Shahrabani and believe that between 2001 and 2001, [sic]
Mr. Cecchini first met James Sullivan and Ezra Shahrabani who
C C
introduced the Irregular Choice series to the Defendant on behalf
of the Plaintiff. James Sullivan and Ezra Shahrabani negotiated
D the IC Distribution Agreement on behalf of the Plaintiff in or D
around 2002.”
E E
85. Subsequently, the Affidavit of Tanner and that of Shahrabani
F F
merely confirmed the facts stated in the 1st and 2nd Affirmations of
G So Yiu Kwong to be true and accurate without adding anything thereto. G
H H
86. Given the state of the evidence, and even accepting on face
I value what was stated in paragraph 36 of So Yiu Kwong’s 1st Affirmation, I
all that can be gleaned from that was that Cecchini would have known
J J
in 2002 before the 2002 Agreement was entered into that he was dealing
K with the plaintiff. K
L L
87. While there is evidence from the plaintiff that the plaintiff is a
M company incorporated in 1972, there is no evidence from the plaintiff that M
Cecchini knew or was told in 2002 that the plaintiff was a Hong Kong
N N
company. In the affidavits of the plaintiff, the plaintiff relies on the
O contents of letters and emails all of which were in 2008 or 2009 to show O
that the defendant’s knowledge about the plaintiff. Those letters and
P P
emails cannot paint what was the picture back in 2002.
Q Q
88. On the other hand, there is also no evidence from the
R R
defendant to the effect that Cecchini did not know or was not told that the
S plaintiff was a Hong Kong company in 2002 at the time when the S
2002 Agreement was entered into.
T T
U U
V V
由此
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A A
89. Therefore even accepting that the defendant knew in 2002 that
B B
the plaintiff was a Hong Kong company and was one of the contracting
C parties to the 2002 Agreement, given all the other circumstances as to how C
the 2002 Agreement came to be entered into, the question that must be
D D
asked and answered would be whether the plaintiff has made out a good
E arguable case to show that Hong Kong law should be implied as being the E
governing law for the 2002 Agreement.
F F
G 90. In arguing this part of the case, the plaintiff has put it on the G
footing that the plaintiff is a Hong Kong company, and the defendant an
H H
Italian company, and that “the real contest is whether the parties would
I have wanted the [2002] Agreement to be under Hong Kong law or Italian I
law.” (paragraph 23 of plaintiff’s skeleton submission refers). A number
J J
of cogent reasons were put forward by the plaintiff as to why the parties
K would not have agreed to Italian law being the governing law of the K
2002 Agreement. Those reasons briefly are that the plaintiff’s officers
L L
dealing with the defendant are all English speaking but not Italian speaking
M M
so would not have agreed to go to an Italian court using Italian law where
N
they would not have been able to follow the proceedings in the Italian N
language. On the other hand, Cecchini is a sophisticated jet-setting
O O
English speaking businessman using very good English in his letters.
P
Once Italian law can be ruled out, what remains is really Hong Kong law P
and that should be implied as being the governing law for the
Q Q
2002 Agreement.
R R
91. However, that argument by the plaintiff does not take into
S S
consideration the possibility that English law may have been what the
T T
U U
V V
由此
- 25 -
A A
parties would have said to be the governing law if they were asked at the
B B
time the 2002 Agreement was entered into by them.
C C
92. Even accepting the submission of the plaintiff and for the
D D
reasons given by it, that it would be highly unlikely that the parties to the
E 2002 Agreement would have agreed Italian law to be the governing law, E
given all the circumstances set out hereinabove, it may have been just as
F F
unlikely for them to have agreed for the governing law to be Hong Kong
G law if the defendant had not been told fully to the role of the plaintiff when G
the 2002 Agreement was entered into, so much so that even in as late as
H H
2008, the plaintiff’s role was said to be only as a financial provider.
I I
93. Applying the test laid down in the Century Yachts case, and
J J
given all the circumstances prevailing at the time the 2002 Agreement was
K entered into, I would have thought that if asked to address their minds to K
the question of the governing law, reasonable businessmen in the shoes of
L L
the parties herein more likely than not would have agreed on English law
M to be the governing law, but unlikely they would have said Hong Kong M
law.
N N
O 94. This view is one which has a valid basis when tested against O
what was stated in the draft agreement (whether the draft dated 2005 or
P P
2006) in respect of the PL brand of shoes in which the governing law was
Q expressly stated to be English law. Both versions of that draft agreement Q
appear, on their face, to have been drafted by English solicitors. Even
R R
accepting that the agreement for the PL brand of shoes was a separate and
S distinct agreement from the 2002 Agreement, the nature of that agreement S
T T
U U
V V
由此
- 26 -
A A
for the PL brand and the parties thereto would appear to be no different
B B
from the 2002 Agreement.
C C
95. It is not necessary for me to actually make a specific finding
D D
that the governing law to be implied for the 2002 Agreement would be
E English law. It is sufficient for me simply to hold that the plaintiff has E
failed make out an arguable case that the governing law for the
F F
2002 Agreement to be Hong Kong law.
G G
96. It follows therefrom that the plaintiff has failed to make out an
H H
arguable case that the claim herein is one that falls within Order 11,
I rule 1(1)(d)(iii). Jurisdiction of this court has therefore not been made I
out by the plaintiff.
J J
K 97. Accordingly, and on that alone the leave granted by the K
Master must be set aside.
L L
M 98. In the circumstances, it would not be necessary for me to go M
into the further issue of exercise of discretion, namely, whether there is a
N N
serious question to be tried or whether for some other reasons, leave
O should not be granted. O
P P
99. I should further add that in view of the conclusion come to
Q above that the plaintiff has failed to make out an arguable case that the Q
claim herein is one which falls within Order 11, rule 1(1)(d)(iii) and
R R
therefore the jurisdiction of this court has not been made out by the
S plaintiff, the fact that the court in Italy has declined jurisdiction in the S
Italian proceedings brought by the defendant against the plaintiff and
T T
U U
V V
由此
- 27 -
A A
Allied Footwear is not a matter which can have any bearing or relevance
B B
upon my decision herein.
C C
COSTS
D D
100. There will be a costs order nisi that the plaintiff is to bear the
E E
costs of the ex parte application before the Master and to pay the
F defendant’s costs of this application and of the hearing, to be taxed if not F
agreed.
G G
H H
I I
J J
(A.R. Suffiad)
K Judge of the Court of First Instance K
High Court
L L
Mr Jose-Antonio Maurellet, instructed by Messrs Tanner De Witt,
M M
for the Plaintiff
N Mr Simon Chiu, instructed by Messrs Sit, Fung, Kwong & Shum, N
for the Defendant
O O
P P
Q Q
R R
S S
T T
U U
V V