BINARY EVOLUTION COMPUTER LTD v. CAPITAL MORE CO LTD AND OTHERS

BINARY EVOLUTION COMPUTER LTD v. CAPITAL MORE CO LTD AND OTHERS

The strike out application was dismissed because the re-amended pleading, taken with the pleaded factual matrix (succession from the sole proprietorship to the company, asset transfer, shareholding of the vendor) and the s.20 presumption, disclosed a sufficient factual 'whisper' of a pre-existing equitable interest to survive summary striking out; defendants must plead to put s.20 in issue and may seek particulars or revisit ownership after defence; therefore no plain and obvious absence of cause of action was shown.

Citation
BINARY EVOLUTION COMPUTER LTD v. CAPITAL MORE CO LTD AND OTHERS
Parties
Plaintiff: Binary Evolution Computer Limited; 1st Defendant: Capital More Company Limited; 2nd Defendant: Patrick Ma Wai Wah; 3rd Defendant: Treasure Area Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 February 1997
Case Number
HCCL198/1995
Procedural Posture
Commercial List Copyright Infringement / Interlocutory: Application to Strike Out (o.18 R.19(1)(a))
Outcome
Defendants' application to strike out Re-Amended Points of Claim dismissed
Legal Topics
Strike Out, Title to Sue, Assignment, Equitable Interest, Statutory Presumption (s.20)
Source Language
EN
Intellectual Property Copyright Civil Procedure Commercial Litigation Strike Out Title to Sue Assignment Equitable Interest +1 more

Case Brief

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Parties

Binary Evolution Computer Limited

Plaintiff

Capital More Company Limited

1st Defendant

Patrick Ma Wai Wah

2nd Defendant

Treasure Area Limited

3rd Defendant

Procedural Posture

Commercial List Copyright Infringement / Interlocutory: Application to Strike Out (o.18 R.19(1)(a))

Legal Issues

  1. 1 Whether the Re-Amended Points of Claim discloses a reasonable cause of action
  2. 2 Whether the Plaintiff had title to sue in respect of items 1-59 at the date of the writ
  3. 3 Whether an equitable interest suffices to found an action for copyright infringement

Ratio Decidendi

The strike out application was dismissed because the re-amended pleading, taken with the pleaded factual matrix (succession from the sole proprietorship to the company, asset transfer, shareholding of the vendor) and the s.20 presumption, disclosed a sufficient factual 'whisper' of a pre-existing equitable interest to survive summary striking out; defendants must plead to put s.20 in issue and may seek particulars or revisit ownership after defence; therefore no plain and obvious absence of cause of action was shown.

Court Disposition

Defendants' application to strike out Re-Amended Points of Claim dismissed

Orders

  • Costs of and occasioned by this application to the Plaintiff in any event (order nisi)
  • Defendants to file and serve Defence and Counterclaim (if any) within 21 days