GERMAIN ELECTRONIC LTD v. LDB SALES CO LTD AND OTHERS

GERMAIN ELECTRONIC LTD v. LDB SALES CO LTD AND OTHERS

The counterclaim in the District Court is in substance the same as the claim previously pursued and dismissed in High Court Action No. 5439/2001; it therefore constitutes an abuse of process to resurrect that claim here, the pleaded relief (including a newspaper apology) is not legally available as sought, and the relief sought is properly attributable to the 1st defendant only; accordingly the defendants' application is dismissed.

Citation
GERMAIN ELECTRONIC LTD v. LDB SALES CO LTD AND OTHERS
Parties
Plaintiff: Germain Electronic Limited; 1st Defendant: LDB Sales Company Limited; 2nd Defendant: Robert Bruce Chaiko; 3rd Defendant: Liu Yuen Kwan also known as Peggy Liu
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 February 2009
Case Number
DCCJ3336/2007
Procedural Posture
Civil Action (district Court) / Application Hearing (decision on Counterclaim/application)
Outcome
Application taken out by the 1st and 2nd defendants dismissed
Legal Topics
Counterclaim, Dismissal for Want of Prosecution, Abuse of Process, Breach of Contract, Remedies, Representation/misrepresentation
Source Language
EN
Civil Procedure Contract Law Costs Abuse of Process Counterclaim Dismissal for Want of Prosecution Breach of Contract Remedies +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Germain Electronic Limited

Plaintiff

LDB Sales Company Limited

1st Defendant

Robert Bruce Chaiko

2nd Defendant

Liu Yuen Kwan also known as Peggy Liu

3rd Defendant

Procedural Posture

Civil Action (district Court) / Application Hearing (decision on Counterclaim/application)

Legal Issues

  1. 1 Whether the counterclaim in the District Court is effectively the same cause of action previously instituted and dismissed in the High Court and therefore an abuse of process
  2. 2 Whether the 2nd and 3rd defendants seek personal relief or only act for the 1st defendant and whether relief can be maintained against them personally
  3. 3 Whether the particular remedy sought (publication of apology) is a recognised legal remedy

Ratio Decidendi

The counterclaim in the District Court is in substance the same as the claim previously pursued and dismissed in High Court Action No. 5439/2001; it therefore constitutes an abuse of process to resurrect that claim here, the pleaded relief (including a newspaper apology) is not legally available as sought, and the relief sought is properly attributable to the 1st defendant only; accordingly the defendants' application is dismissed.

Court Disposition

Application taken out by the 1st and 2nd defendants dismissed

Orders

  • Application by 1st and 2nd defendants dismissed
  • 1st and 2nd defendants to pay costs of this application to the plaintiff, to be taxed if not agreed, with certificate for counsel