NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

The Court allowed the appeals because it found that reasonable, triable arguments existed as to the proper construction of Clause 13 and whether engaging Lynch amounted to a material breach; and because NTT had not pleaded a restitution claim of total failure of consideration adequately, NTT was not entitled to summary judgment for refund. The summary judgments and strike-out orders below were therefore set aside.

Citation
[2018] HKCA 283
Parties
Plaintiff (cacv 58/2018); Defendant (cacv 59/2018): NTT Data Hong Kong Limited; 1st Defendant (cacv 58/2018); Plaintiff (cacv 59/2018): Octo3 Limited; 2nd Defendant (cacv 58/2018): Tyrone Shaunessy Lynch
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
17 May 2018
Case Number
CACV58/2018
Procedural Posture
Civil Appeals Heard Together / Judgment of the Court of Appeal (appeal From High Court)
Outcome
Appeals allowed; judgments below set aside; matter to proceed to trial on disputed issues; order nisi for costs in favour of Octo.
Legal Topics
Summary Judgment, Breach of Contract, Termination, Non Solicitation Clause, Total Failure of Consideration, Pleading Requirements, Costs
Source Language
EN
Contract Restitution Civil Procedure Employment Law Summary Judgment Breach of Contract Termination Non Solicitation Clause +3 more

Case Brief

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Parties

NTT Data Hong Kong Limited

Plaintiff (cacv 58/2018); Defendant (cacv 59/2018)

Octo3 Limited

1st Defendant (cacv 58/2018); Plaintiff (cacv 59/2018)

Tyrone Shaunessy Lynch

2nd Defendant (cacv 58/2018)

Procedural Posture

Civil Appeals Heard Together / Judgment of the Court of Appeal (appeal From High Court)

Legal Issues

  1. 1 Whether Octo breached Clause 13 (non-solicitation) by engaging Mr Lynch
  2. 2 Whether any breach was a material non-remedial breach entitling NTT to terminate under Clause 12
  3. 3 Whether NTT was entitled to restitutionary refund of the US$2,350,000 Upfront Payment

Ratio Decidendi

The Court allowed the appeals because it found that reasonable, triable arguments existed as to the proper construction of Clause 13 and whether engaging Lynch amounted to a material breach; and because NTT had not pleaded a restitution claim of total failure of consideration adequately, NTT was not entitled to summary judgment for refund. The summary judgments and strike-out orders below were therefore set aside.

Court Disposition

Appeals allowed; judgments below set aside; matter to proceed to trial on disputed issues; order nisi for costs in favour of Octo.

Orders

  • Allow Octo's appeals and set aside the judgments of M Chan J in HCA 3446/2016 and related orders in HCA 44/2017.
  • Order nisi that NTT pay Octo costs below and on appeal with a certificate for two counsel for the appeals, to be taxed if not agreed.