GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS

GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS

The court refused leave to amend because the application was made late without adequate excuse, the defendants had chosen earlier to confine their challenge to PRC law despite knowledge of the PRC judgment, and granting the amendment would cause unfair prejudice and delay to the plaintiffs that could not be compensated by costs; although the offensive part of the covenant may be severable in principle, that fact did not justify allowing a late amendment where prejudice and delay dominated the discretionary balance.

Citation
GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS
Parties
1st Plaintiff: Guangzhou Green-Enhan Bio-Engineering Co. Ltd; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 September 2004
Case Number
HCA2802/2003
Procedural Posture
Civil (contract / Restraint of Trade Dispute) / Trial — Mid Trial Ruling on Summons for Leave to Amend Consolidated Defence and Counterclaim
Outcome
Application to amend dismissed; costs order nisi that defendants shall bear plaintiffs' costs of the application
Legal Topics
Amendment of Pleadings, Severance of Contractual Clauses, Admissibility of Foreign Law Expert Evidence, Prejudice and Delay in Amendments, Issue Estoppel (addressed)
Source Language
EN
Contract Restrictive Covenants Civil Procedure Restraint of Trade Evidence (expert Evidence) Amendment of Pleadings Severance of Contractual Clauses Admissibility of Foreign Law Expert Evidence +2 more

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Parties

Guangzhou Green-Enhan Bio-Engineering Co. Ltd

1st Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Civil (contract / Restraint of Trade Dispute) / Trial — Mid Trial Ruling on Summons for Leave to Amend Consolidated Defence and Counterclaim

Legal Issues

  1. 1 Whether leave should be granted to amend consolidated defence to add a challenge under Hong Kong law to restrictive covenants
  2. 2 Whether the restrictive covenants are void as unreasonable restraints of trade under Hong Kong law
  3. 3 Whether the allegedly offensive part of the covenant is severable from the rest

Ratio Decidendi

The court refused leave to amend because the application was made late without adequate excuse, the defendants had chosen earlier to confine their challenge to PRC law despite knowledge of the PRC judgment, and granting the amendment would cause unfair prejudice and delay to the plaintiffs that could not be compensated by costs; although the offensive part of the covenant may be severable in principle, that fact did not justify allowing a late amendment where prejudice and delay dominated the discretionary balance.

Court Disposition

Application to amend dismissed; costs order nisi that defendants shall bear plaintiffs' costs of the application

Orders

  • Application for leave to amend the Re-Amended Consolidated Defence and Counterclaim dated 25 August 2004 is dismissed
  • Costs order nisi: the Defendants shall bear the Plaintiffs' costs of this application in any event