SANYO SECURITIES (ASIA) LTD v. LIN KUANG LUNG RAYMOND

CACV000257/1995

IN THE COURT OF APPEAL

1995, No. 210 & 257
(Civil)

BETWEEN
	SANYO SECURITIES (ASIA) LIMITED	Plaintiff
	AND
	LIN KUANG LUNG, RAYMOND	Defendant

-------------------

Coram: Bokhary, J.A. in Chambers

Date of Hearing: 7 March 1996

Date of Judgment: 7 March 1996

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. What I say now should be read in the context of what I said on February 1 this year.

2. The date now fixed for these consolidated appeals are June 25 & 26 this year. Those dates were fixed pursuant to a direction which I made on February 1. That direction was, in effect, that dates should be fixed in consultation with junior counsel's diaries.

3. The application then was that of the plaintiff.

4. Initially it was resisted by the defendant because initially the application was in effect to fix the dates in consultation with leading and junior counsel's diaries as opposed to junior counsel's diaries only.

5. The direction ultimately made was on the basis of a compromise reached by the parties and my willingness to go along with it. It is now said by the defendant that he would never have entered into that compromise but for the fact that he had been kept ignorant of certain steps which the plaintiff was taking with a view to making him bankrupt.

6. I am sure that there was no intention to mislead; but it seems to me that the net result is that the defendant was indeed misled.

7. Mr Waldron for the plaintiff has drawn my attention to two cases including Mr Justice Pickering's decision in Wong Wai-chun v. Chan Yuet-wah [1976] HKLR 69 in which the judge dealt with the effect of orders made by consent and the limited circumstances in which they can be upset.

8. There the judge accepted that the party seeking to upset the consent order was in ignorance; but he made it very clear in his judgment that all the means of knowledge was there under that party's very nose. He spoke, as we see at the top of page 72, about documents which that party had and which were "sufficient to put the whole world upon notice" of the material facts.

9. That makes that case very different from this one even treating this case as a "consent order" case. Here, what I regard as material facts were, innocently no doubt but significantly nevertheless, withheld from the court and from the defendant.

10. In those circumstances, defendant cannot be held to his "consent". In my view, such "consent" is vitiated by the non-disclosure. If it were not for the compromise, I would not consider it right to deprive the defendant of his right, in the normal way, to having this appeal fixed for hearing on the next available date or dates.

11. I understand that if I were to vacate the June dates and recall the direction which I made on February 1, so that the consolidated appeals will be fixed for hearing on the next available dates, they will be fixed for hearing on May 14 & 15 this year.

12. That, the defendant believes, puts him in a better position than he would be in with June dates. On principle and by reference to the practicalities, I think it is right for me to do this and I do it: I vacate the June dates; recall the direction made on February 1; and leave the Clerk of the Court to fix dates for the consolidated appeals on the next available dates so that the consolidated appeals will be fixed for hearing on May 14 & 15.

13. It remains only to hear the parties on the costs of this application and on the question of whether I should vary the order as to cost made on February 1.

[Costs]

14. As far as the order as the cost which I made on February 1 are concerned, the parties are content for it to remain. And so it shall.

15. As far as the costs of the present application are concerned, it seems to me that they should follow the event. The defendant has been successful; and I grant him the costs of this application in any event.

(K Bokhary)

Justice of Appeal

Representation:

Mr Peter Graham (instructed by M/s Baker & McKenzie) for the defendant/appellant

Mr Martin Waldron (of M/s Hampton Winter & Glynn) for the plaintiff/respondent

CACV000257A/1995

IN THE COURT OF APPEAL

1995, No. 210 & 257
(Civil)

 

BETWEEN
	SANYO SECURITIES (ASIA) LIMITED	Plaintiff
	AND
	LIN KUANG LUNG, RAYMOND	Defendant

-------------------

Coram: Bokhary JA in Chambers

Date of Hearing: 1 February 1996

Date of Judgment: 1 February 1996

 

----------------------

J U D G M E NT

-----------------------

 

Bokhary JA:

1. The summons before me seeks a direction that "The dates of hearing of these appeals be fixed in consultation with the parties' Counsels' diaries".

2. My power for present purposes is that contained in paragraph 3 of the Practice Direction pertaining to the Listing of Appeals found on p. 5.3 of the 1990 Revision of the Practice Directions of the Supreme Court.

3. That power is to make a direction that the Clerk of the Court do fix a date in accordance with item (b) of paragraph 2 of that Practice Direction even though the appeal concerned is a "short appeal" within the meaning of that paragraph.

4. Paragraph 2 reads:

"The Clerk of Court will fix a date for hearing in the following manner:-

(a) An appeal estimated to last for 2 days or less (a short appeal) will be fixed for hearing on the next available date;

(b) An appeal estimated to last for more than 2 days will, so far as practicable, be fixed for hearing in accordance with the preference of the parties."

5. Obviously, it is only in exceptional circumstances that a direction under paragraph 3 will be made. And that is for the very simple reason that the fixing of a date for a short appeal in the manner prescribed in item (b) of paragraph 2 rather than item (a) thereof is the exception rather than the rule.

6. Here we are dealing with consolidated appeals which seem to me to be very considerably heavier and more complex than the general run of short appeals.

7. I do not say that that alone would always justify a paragraph 3 direction. But in all the circumstances of the present case, I am of the view that my discretion under paragraph 3 does arise.

8. Initially, Mr Graham for Lin Kuang Lung resisted a paragraph 3 direction. He did so even when it became known that allowing matters to take their course under item (a) of paragraph 2 would result in the appeal being fixed for April 16 & 17 this year, which dates are not convenient to either Mr Graham or his proposed leader.

9. Mr Graham's client was prepared to suffer the disadvantage - Mr Graham will permit me to describe it as the considerable disadvantage - of not having even his services because of how much he, the client, fears delay. It appeared to Mr Graham that if a paragraph 3 direction were to be made, there would be every danger that dates would not be fixed for any time earlier than July this year. And that, Mr Graham's client feels, is too long a delay for his purposes.

10. It is not easy to assess the impact of delay. But I certainly start off on the basis but I am inclined to accept the sincerity of Mr Graham's client. He is hardly going to deprive himself of not only Mr Graham's services but also that of Mr Graham's proposed leader by opposing a paragraph 3 direction unless he genuinely feared the delay which such a direction would bring about.

11. Mr Waldron for Sanyo, whose application this is, persists in his application for a paragraph 3 direction. But some compromise has been worked out. For both Mr Waldron and Mr Graham say that if the matter were to be fixed in consultation with junior counsel's diaries ignoring the availability of proposed leaders then the delay should be acceptable.

12. I cannot make a paragraph 3 direction which directly instructs the Clerk of the Court to fix a date in consultation with junior counsel's diaries.

13. What I can do - and will do - is this. Both parties have undertaken not to include the position of any leading counsel when putting forward their preference. On such undertakings, I will make a paragraph 3 direction in the present appeal.

14. Two things remain: one is to express my thanks to Mr Waldron and Mr Graham; the other is to hear them on the question of costs.

[Costs]

15. Mr Waldron's summons asks that the costs of this application be in the cause; and Mr Graham is content that that should be so. I order that the costs of this application be costs in the cause accordingly.

 

 

	(K Bokhary)
	Justice of Appeal

 

Representation:

Mr M Waldron (of M/s Hampton Winter & Glynn) for the respondent

Mr Peter Graham (instructed by M/s Baker & McKenzie) for the appellant