Hong Kong Case Law: Decisions & Judgments

Topic

Non-solicitation clause

Legal area

Court

17 May 2018

OCTO3 LTD v. NTT DATA HONG KONG LTD

Citation

[2018] HKCA 283
Court

Court of Appeal
Case number

CACV59/2018

The Court held that there were reasonably arguable issues as to the construction of Clause 13 and whether engaging Lynch amounted to a material breach under Clause 12, so summary judgment and striking out were inappropriate; further, NTT had not properly pleaded a restitution claim based on total failure of consideration and thus was not entitled to the refund of US$2,350,000; accordingly the appeals were allowed and the judgments below set aside.
17 May 2018

NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

Citation

[2018] HKCA 283
Court

Court of Appeal
Case number

CACV58/2018

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.
12 Apr 2018

WINTA INVESTMENT (HONG KONG) LTD v. NG KAM CHIT

Citation

[2018] HKDC 342
Court

District Court
Case number

DCCJ1620/2012

The plaintiff failed to prove on the facts that the defendant solicited its customers after leaving employment; the court preferred the defendant's and Noble Gainer's contemporaneous evidence over the plaintiff's inconsistent witness accounts; because solicitation was not established the claim fails and is dismissed (no need to enforce Clause 9).
9 Feb 2018

NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

Citation

[2018] HKCFI 325
Court

Court of First Instance
Case number

HCA3446/2016

Lynch was a senior and key NTT employee engaged in the performance of NTT's obligations (he signed the Upfront Payment cheque and negotiated delivery arrangements); Octo's employment of Lynch therefore breached clause 13. That breach was material in the commercial context and entitled NTT to terminate under clause 12. The 15 November 2016 notice validly terminated the Agreement. NTT is entitled to summary judgment for refund of the Upfront Payment (with interest) for failure of consideration; judgment also entered on NTT's counterclaim in HCA 44/2017. Octo's separate claim for the balance of…
3 Oct 2014

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v. CHEN, KUEI MEI(ALSO KNOWN AS KEMY CHEN)

Citation

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v. CHEN, KUEI MEI(ALSO KNOWN AS KEMY CHEN)
Court

Court of First Instance
Case number

HCA1674/2014

On the defendant's own contemporaneous actions and admissions the court found a clear breach of confidentiality and contractual obligations, no adequate explanation or defence on the evidence, and a continuing need to protect customer data and regulatory interests; accordingly the interim injunction was properly continued.
26 Jun 2014

POAD GROUP LTD AND ANOTHER v. S CUBE MEDIA LTD AND ANOTHER

Citation

POAD GROUP LTD AND ANOTHER v. S CUBE MEDIA LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA761/2014

The interim mandatory injunction was refused because plaintiffs failed to establish a good arguable case that defendants possessed and were using POAD's confidential database (evidence was equivocal, there was no forensic examination, no demonstrable loss in billing, and alternative public sourcing was plausible); further the proposed injunction was too broad and vague to be enforceable and the plaintiffs' delay in commencing proceedings was unexplained, defeating the claim to urgent irreparable harm.
5 Jul 2012

CHARTER SENSE LTD v. NG KIN YAN also known as PATRICK NG KIN YAN

Citation

CHARTER SENSE LTD v. NG KIN YAN also known as PATRICK NG KIN YAN
Court

Court of First Instance
Case number

HCMP1036/2012

The Court refused leave because, on the evidence and having inspected the Clients Contact List, there was no reasonable prospect that the Deputy Judge was wrong to conclude the list was not confidential and therefore no entitlement to an interlocutory injunction; further, the one-year non-solicitation period had largely elapsed and would not justify the exercise of the court's discretion to grant an injunction, so the application was totally without merit.
15 Aug 2011

LIQUID ASSETS LTD v. GIAN ANDREA PESCI AND OTHERS

Citation

LIQUID ASSETS LTD v. GIAN ANDREA PESCI AND OTHERS
Court

Court of First Instance
Case number

HCA871/2011

The court found the six-month non-competition and non-solicitation clauses were not unreasonable given the employment contract in conjunction with the business purchase agreement; therefore an interim injunction was necessary to restrain the 1st and 2nd defendants from participating in the June 2011 Italian Wine Festival, and the plaintiff was entitled to costs of the injunction proceedings.
5 Aug 2008

ADVANCED MP TECHNOLOGY HK LTD v. SU YAN WEN LISA

Citation

ADVANCED MP TECHNOLOGY HK LTD v. SU YAN WEN LISA
Court

Court of First Instance
Case number

HCA1252/2007

Pleadings as filed were vague and disclosed no reasonable cause of action; however voluntary particulars revealed tortious conduct (data copying/deletion and solicitation) taking the claims outside the exclusive jurisdiction of the Labour Tribunal. Leave to strike out was granted conditional on the plaintiff amending pleadings to disclose a reasonable cause of action within 14 days, failing which the actions would be dismissed with costs to the defendants.
14 Dec 2007

MAX FORTUNE INDUSTRIAL LTD v. YU WAI CHING

Citation

MAX FORTUNE INDUSTRIAL LTD v. YU WAI CHING
Court

Court of First Instance
Case number

HCA937/2006

The defendant breached his implied duty of fidelity by permitting outsiders to tour the factory and by allowing a false impression to persist that Yuan Ming had a joint venture interest; however the plaintiff failed to prove it had given reasonable notice of any specific company policy and failed to prove actual loss from the alleged malicious falsehood, therefore only nominal damages are appropriate, no injunction is warranted, and the counterclaim is dismissed.