SNE ENGINEERING CO LTD v. HSIN CHONG CONSTRUCTION COMPANY LTD AND ANOTHER

SNE ENGINEERING CO LTD v. HSIN CHONG CONSTRUCTION COMPANY LTD AND ANOTHER

The court held it had no jurisdiction to recall or vary the Amendment Order once leave to amend was given and acted upon (finality/functus officio), and even if jurisdiction existed the application to vary would be refused on discretionary grounds because the amendment was made in response to evidence adduced by the plaintiff at trial, the alleged misrepresentation was not shown to be deliberate or causative, the defendants acted reasonably, the obviousness issue did not significantly increase trial length or costs, and overall justice required costs to follow the event: the costs order nisi was made absolute in favour of Hsin Chong and Chim Kee; however the interlocutory application...

Citation
SNE ENGINEERING CO LTD v. HSIN CHONG CONSTRUCTION COMPANY LTD AND ANOTHER
Parties
Plaintiff: SNE Engineering Co. Ltd.; 1st Defendant: Hsin Chong Construction Company Limited; 2nd Defendant: Chim Kee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2015
Case Number
HCA1466/2012
Procedural Posture
Patent Infringement / Post Trial Applications to Vary Costs Order Nisi and to Vary Amendment Order (costs Variation and Amendment Order Variation Applications)
Outcome
Amendment Order Variation Application dismissed; Costs Variation Application dismissed; costs order nisi made absolute in favour of Hsin Chong and Chim Kee; interlocutory application costs ordered to plaintiff (SNE).
Legal Topics
Patent Validity, Obviousness, Insufficiency, Amendment of Pleadings, Issue Based Costs, Finality and Perfection Rule
Source Language
EN
Intellectual Property Civil Procedure Costs Patent Validity Obviousness Insufficiency Amendment of Pleadings Issue Based Costs +1 more

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Parties

SNE Engineering Co. Ltd.

Plaintiff

Hsin Chong Construction Company Limited

1st Defendant

Chim Kee

2nd Defendant

Procedural Posture

Patent Infringement / Post Trial Applications to Vary Costs Order Nisi and to Vary Amendment Order (costs Variation and Amendment Order Variation Applications)

Legal Issues

  1. 1 Whether the court has jurisdiction to vary or recall an amendment order made during trial
  2. 2 Whether counsel for defendant deliberately misled the court and whether that misconduct justifies a special or indemnity costs order
  3. 3 Whether an issue-based apportionment of costs should be applied given defendants succeeded on most issues but lost on obviousness

Ratio Decidendi

The court held it had no jurisdiction to recall or vary the Amendment Order once leave to amend was given and acted upon (finality/functus officio), and even if jurisdiction existed the application to vary would be refused on discretionary grounds because the amendment was made in response to evidence adduced by the plaintiff at trial, the alleged misrepresentation was not shown to be deliberate or causative, the defendants acted reasonably, the obviousness issue did not significantly increase trial length or costs, and overall justice required costs to follow the event: the costs order nisi was made absolute in favour of Hsin Chong and Chim Kee; however the interlocutory application...

Court Disposition

Amendment Order Variation Application dismissed; Costs Variation Application dismissed; costs order nisi made absolute in favour of Hsin Chong and Chim Kee; interlocutory application costs ordered to plaintiff (SNE).

Orders

  • Refuse to vary or recall the Amendment Order; Amendment Order stands
  • Dismiss the Costs Variation Application and make the costs order nisi absolute