SIMBA-TOYS (HONG KONG) LTD v. FULLMORE CORPORATION LTD

HCA 1583/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1583 OF 2008

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BETWEEN

MAJORETTE HONG KONG LIMITED Plaintiff
And
FULLMORE CORPORATION LIMITED Defendant

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HCA 1599/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1599 OF 2008

_________________________

BETWEEN

SIMBA-TOYS (HONG KONG) LIMITED Plaintiff
And
FULLMORE CORPORATION LIMITED Defendant

_________________________

Coram : Before Master K.W. Lung in Chambers

Date of Hearing : 23 June 2010

Date of Reasons for Decision : 23 June 2010

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REASONS FOR DECISION

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1. HCA 1583/2008 and HCA 1599/2008 have been ordered to be tried by the same judge. The defendant in HCA 1583/2008 has taken out a summons for leaveto adduce expert evidence at the trial, which the plaintiff opposes on the ground that the expert evidence intended to be producedis irrelevant to the issues for the trial.

2. In the summons the defendant intends to adduce expert evidence on the following issues:

(1)

the nature and legal status of Fullmore Products (Shenzhen) Limited under PRC law;

(2)

the PRC legal framework in relation to the management of Fullmore Products (Shenzhen) Limited;

(3)

the relationship between Fullmore Corporation Limited and Fullmore Products (Shenzhen) Limited, particularly in relation to whetherFullmore Corporation Limited is liable for the liabilities of Fullmore Products (Shenzhen) Limited.

3. The plaintiff’s claim against the defendant in this action is for the return of the toys moulds delivered to Fullmore Products(Shenzhen) Limited, which is wholly owned by the defendant, under an agreement made between the plaintiff and the defendant. Theplaintiff subsequently said that the defendant was in breach of the agreement and demanded the return of the moulds delivered toFullmore Products (Shenzhen) Limited.

4. The defendant’s defence to this claim is that the moulds were delivered to Fullmore Products (Shenzhen) Limited, not the defendantand the defendant is not in possession of the moulds in question. Those are the reasons that the defendant is not liable to theplaintiff for the moulds.

5. I have asked Mr. Yan, the handling solicitor of the defendant’s case whether the defendant has raised the issue that the mouldsthat the plaintiff delivered to Fullmore Products (Shenzhen) Limited was under another agreement between the plaintiff and FullmoreProducts (Shenzhen) Limited. Mr. Yan says that the defendant does not raise this defence in the Defence. Mr. Yan has also saidthat the defendant does not say that the plaintiff had delivered the moulds to Fullmore Products (Shenzhen) Limited by mistake.

6. On the pleadings and submissions from the solicitors before me today, I accept Mr. Hanusch’s argument that the intended expertevidence is not relevant to the issues in dispute between the parties. Mr. Hanusch further submits that the plaintiff has neverdisputed that Fullmore Products (Shenzhen) Limited is a separate legal entity from the defendant, which is not an issue in the pleadings.

7. The burden is on the defendant to show that the intended expert evidence is relevant to the issues in dispute. The defendant isunable to show even a prima facie case in support of his application. I dismiss the summons with costs. There is another summonsfor the same application taken out by the defendant for HCA 1599/2008. For the same reason, I dismiss the summons for HCA 1599/2008as well.

8. As to costs of these applications, Mr. Yan has no objection to Mr. Hanusch’s proposal of $1,200.00 for each case, totally $2,400.00to be paid by the defendant within 14 days from the date hereof. I so order.

(K.W. Lung)
Master of the High Court

Mr. D. Yan of Messrs. Chong & Partners for Defendant.

Mr. P. Hanusch of Messrs. Deacons for Plaintiff.