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

Although the offending element of the covenant was arguably severable and the clause comprised distinct prohibitions, the court exercised its discretion to dismiss the late application to amend because the defendants elected to confine their challenge to PRC law, the application was made late in the trial, and allowing the amendment would cause prejudice and further delay to the plaintiffs that could not be compensated by costs.

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
HCMP74/2004
Procedural Posture
Civil Contractual Dispute (restrictive Covenants) / Ruling on Application to Amend Consolidated Defence and Counterclaim During Trial (interlocutory)
Outcome
Application to amend dismissed
Legal Topics
Restrictive Covenants, Severance of Contracts, Leave to Amend Pleadings, Admissibility of Foreign Expert Evidence, Prejudice and Costs
Source Language
EN
Contract Law Restraint of Trade Civil Procedure Evidence Law Restrictive Covenants Severance of Contracts Leave to Amend Pleadings Admissibility of Foreign Expert Evidence +1 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 Contractual Dispute (restrictive Covenants) / Ruling on Application to Amend Consolidated Defence and Counterclaim During Trial (interlocutory)

Legal Issues

  1. 1 Whether proposed amendment to plead that restrictive covenants are void under Hong Kong law should be allowed at a late stage of trial
  2. 2 Whether the offending part of the restrictive covenant is severable from the rest of the covenant
  3. 3 Whether defendants' prior election to rely on PRC law and subsequent exclusion of PRC expert evidence justifies late amendment

Ratio Decidendi

Although the offending element of the covenant was arguably severable and the clause comprised distinct prohibitions, the court exercised its discretion to dismiss the late application to amend because the defendants elected to confine their challenge to PRC law, the application was made late in the trial, and allowing the amendment would cause prejudice and further delay to the plaintiffs that could not be compensated by costs.

Court Disposition

Application to amend dismissed

Orders

  • Application to amend the Re-Amended Consolidated Defence and Counterclaim dismissed
  • Cost order nisi that the Defendants shall bear the Plaintiffs' costs of this application