Civil Action2003

ALL OVERSEAS LTD AND ANOTHER v. WYLIE INDUSTRIAL LTD AND OTHERS

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60897-EN-2008-04-25

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HCA405/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 405 OF 2003

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BETWEEN
	ALL OVERSEAS LIMITED	1^st Plaintiff
	BILLION TOP GARMENT LIMITED	2^nd Plaintiff
	and
	WYLIE INDUSTRIAL LIMITED	1^st Defendant
	LAU KING FAI	2^nd Defendant
	FORTUNE WINNER CORPORATION LIMITED	3^rd Defendant

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Before : Hon Burrell J in Chambers

Date of Hearing : 16 April 2008

Date of Decision : 25 April 2008

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D E C I S I O N

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1. This is an appeal by the 2^nd plaintiff (“Billion Top”) in its Order 14 application. Before Master Yuen Billion Top succeeded in getting the orders it sought save in two respects. In this appeal, Billion Top submits the Master should have gone further than she did and should have granted the orders sought in full.

2. Factually, the matter has become very complex. This action (HCA405/2003) is one of a number of connected actions. At an earlier hearing of this matter, Stone J sensibly suggested that there should be consolidation of the different actions (in particular HCA4515/2002 and HCA742/2006). Since then, consolidation has not occurred purely for procedural reasons namely that HCA4515/2002 has been finally adjudicated upon by the Court of Appeal and HCA742/2006 has been stayed following a winding-up order against the defendant in that case, “Chelton”. Therefore, this action still stands alone.

3. The complex facts of this action and the overlapping parties in the other causes of action have been helpfully and fully set out in the Master’s written decision dated 27 January 2008, in paragraphs 3-20 inclusive therein. No purpose would be served in repeating them herein.

4. In a nutshell, Billion Top took out loan with a firm called Chelton in January 2002. Billion Top shares were pledged to secure the loan. There were various changes of directorships in Billion Top during 2002. In September 2002, the 2^nd defendant (“Lau”) gave notice that he was a director. On 19 November 2002, Lau purported to sell a Billion Top property (“the workshop”) to the 1^st defendant (“Wylie”). Later in November, Billion Top sought to settle a loan to Chelton which had been secured by way of a mortgage over the workshop. The validity of the sale of the workshop has been at the heart of these proceedings.

5. At the appeal of HCA4515/2002, the Court of Appeal ruled, inter alia, that Lau was not and never had been a director of Billion Top. Consequently, it is said, Lau’s purported sale of the workshop on behalf of Billion Top was null and void. All further avenues of appeal have now been extinguished.

6. In this action, in the Order 14 application, Billion Top sought the following orders (in outline) :

(1) a final declaration that the sale of the workshop was null and void and that Wylie was never the owner;

(2) final judgment for possession against Wylie; and

(3) further consequential orders as a result of the restoration of Billion Top as the owner.

7. Following a reasoned written decision, the Master granted the declarations sought against the 1^st and 3^rd defendants (the latter having no relevance to the issues in this appeal and was absent from the hearing below). However, no order was made against “Lau” and no order for possession of the property against Wylie was ordered.

8. Mr Benjamin Chain, counsel for Billion Top, submits that having made her decisions in Billion Top’s favour that the sale by Lau was null and void, there were no good reasons not to (a) include Lau in the order, and (b) grant possession to the former owner, Billion Top, against Wylie.

9. The Master’s decision was carefully considered and in every respect where she granted orders, correct. Neither Wylie nor Lau has appealed against it. I agree with Mr Chain however, that having made the correct decision which she did, the orders granted should have included those orders which Billion Top now seeks on appeal.

10. In refusing to grant possession against Wylie, the Master said :

“ Whether Chelton Finance has a beneficial interest to compel the directors of Billion Top to assign all shareholdings of Billion Top to Chelton Finance or its nominee and whether Wylie has any beneficial interest over the Workshop would be the issues to be adjudicated in HCA-742/2006. To grant the plaintiff an outright order for possession and to declare the 1^st defendant never has any beneficial interest over the Workshop would have deprived the 1^st defendant and Chelton Finance a claim of right over the share mortgage agreement and the sequential land sale transaction.”

11. Wylie’s claim to have a beneficial interest in the property stems from its discharge of a mortgage for (approximately) $2.1 million to the Overseas Trust Bank (“OTB”) on the property when it was purchased. In fact the Master did not say that it was the OTB mortgage which created Wylie’s possible beneficial interest. Mr Chain, however, correctly submits that the existence of this mortgage and the fact that Wylie discharged it has to be confronted by Billion Top but that it is an independent issue from the fact that once it was declared that Lau was not a director and that the sale and purchase was void (which have both now been declared) Wylie can have no interest in the property.

12. The issue of the old mortgage has, throughout, been properly confronted by Billion Top in acknowledging that credit must be given to Wylie. In its amended notice of appeal, it seeks the following order :

“a Declaration that the 2^nd Plaintiff is entitled at its election to either :-

(a) interlocutory judgment against the 1^st Defendant for damages for trespass to be assessed, or

(b) an account of all incomes received by the 1^st Defendant from the Property,

in either event credit be given to the 1^st Defendant for the sum of HK$2,138,546.93.”

13. Billion Top further submits that its claim for loss of rents and/or mesne profits for the (approximately) five years that it has been out of possession will extinguish Wylie’s entitlement to the repayment of the mortgage sum. It has offered to pay, if necessary, an appropriate sum into court to protect Wylie’s possible claim to this sum. In my discretion, I find there to be no necessity to do so. Billion Top acknowledges its liability to repay subject to its own claim to set off loss of rental income. That is sufficient.

14. Wylie’s second submission is that, it was a bona fide purchase for value and therefore depriving it of all beneficial interest in the property is premature. I do not agree.

15. The Master came to the same conclusion when she said :

“I accept the concept of bona fide purchase has no application here as the shield is only applicable when a valid legal interest had been transferred to Wylie in the land transactions in 2002.”

16. The transaction was invalid thus Wylie was never a purchaser of the legal estate. Being a bona fide purchase for value does not affect the validity of a transaction. If a purchaser is able to prove he was a bona fide purchaser, it will only support his rights with regards to priorities and incumbrances. If the sale is invalid ab initio the argument has no application.

17. Even if it did, the burden would be on Wylie to prove his bona fides. I find it unnecessary to determine whether or not Wylie has discharged that burden. Suffice it to say that the factors relied on by Mr Chain in opposition are compelling. However, both the Master and this court accept his primary submission that the consideration of the issue does not arise.

2^nd defendant

18. Mr Alexander Wong, counsel for Lau, submits solely that the Master was right to exclude him from any of the orders sought because he had no interest, legal or otherwise, in the property or its possession. Billion Top was fully protected by the orders against Wylie and the 3^rd defendant. Lau should never have been made a party.

19. On the appeal of HCA4512/2002, it was declared that Lau was not and never had been a director of Billion Top. It is plainly implicit that he was rightly joined as a party in those proceedings. In these proceedings he was the person who, when not a director, signed the sale and purchase agreement and assignment of Billion Top’s property.

20. In the circumstances, it is difficult to see why Lau is not a proper and necessary party.

21. Lau has had plenty of opportunity to apply to the court for misjoinder. He has not done so. Since the declaration made in HCA4515/2002 became a final judgment he has had the opportunity to concede that he has no defence to Billion Top’s claims. He has not done so.

22. His submission that he is neutral or non-interested party flies in the face of his response to the proceedings thus far; namely, that he has vigorously opposed matters at all stages. He opposed the lifting of the stay, he appealed the lifting of the stay, he has filed affirmations in opposition, he opposed the Order 14 proceedings.

23. All that Billion Top is claiming is that the declaratory relief is binding on Lau. I agree.

Order

24. I make an order in terms of paragraphs 1, 2 and 4 of the Notice of Appeal dated 30 January 2008. I also make an order in terms of paragraph 3 which is amended to read as follows :

3. Order in terms of paragraphs (3) (as amended) to (7) of the Order 14 summons. (Paragraph (3) having been amended in terms of paragraph 12 of this judgment.)

(M.P. Burrell)
Judge of the Court of First Instance
High Court

Mr Benjamin Chain, instructed by Messrs So, Lung & Associates, for the Plaintiffs

Mr Leung Yiu Kwong, instructed by Messrs Fong Yin Cheung & Co., for the 1^st Defendant

Mr Alexander Wong, instructed by Messrs Leung & Lien, for the 2^nd Defendant

59988-EN-2008-01-28

ALL OVERSEAS LTD AND ANOTHER v. WYLIE INDUSTRIAL LTD AND OTHERS

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HCA 405/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 405 OF 2003

______________________

BETWEEN

	All Overseas Limited	1^st Plaintiff
	Billion Top Garment Limited	2^nd Plaintiff
	And
	Wylie Industrial Limited	1^st Defendant
	Lau King Fai	2^nd Defendant
	Fortune Winner Corporation Limited	3^rd Defendant

___________________

Coram : Before Master M. Yuen in Chambers

Date of Hearing : 13 December 2007

Date of Judgment : 28 January 2008

___________________

J U D G M E N T

___________________

1. There are 2 summonses to attend to in this hearing. The 1^st summons was taken out on 30 July 2007 by the 2^nd plaintiff for summary judgment to be entered against the 1^st , 2^nd and 3^rd defendants. The 2^nd summons was an application made by the 1^st defendant on 6 December 2007 for stay of the present proceeding on the ground that the 1^st defendant is facing a winding-up petition due to be heard on 30 January 2008.

2. The events evolved out of the purported enforcement of a share mortgage in a loan transaction.

3. The lender of this loan was Chelton Finance Limited (hereinafter called “Chelton Finance” for short).

4. The borrowers of this loan were Best Result International Limited (hereinafter called “Best Result” for short) and Great Luck Holdings Limited (called “Great Luck” for short). Best Result and Great Luck, two BVI companies, were the only 2 registered shareholders of Billion Top Garment Limited (called “Billion Top” for short which is the 2^nd plaintiff in the present proceeding) at the time of the signing of the share mortgage on 11 January 2002. Mr. HAU Wing Lam and Great Wealth Trading Limited (called “Great Wealth” for short) were the only directors of Billion Top between 11 January 2002 and 26 January 2002.

5. According to this share mortgage of 11 January 2002, Best Result and Great Luck pledged the shares in Billion Top to Chelton Finance to secure a loan of HK$600,000 from Chelton Finance. Clause 2 of the share mortgage provided documents in escrow were to be deposited with Chelton Finance. The documents deposited included: (i) share certificates; (ii) related instruments of transfer and contract notes duly signed in blank by Best Result and Great Luck in favour of Chelton Finace or its nominees; and (iii) duly signed undated resignations of the 2 directors of Billion Top: Mr. HAU Wing Lam and Great Wealth.

6. On 26 January 2002 All Overseas Limited (called “All Overseas” for short which is the 1^st plaintiff in this action) was registered as a director of Billion Top with the Companies Registry, while HAU resigned from his directorship on the same day. In the defence filed in HCA-4515/02 Chelton Finance challenged the validity of the appointment of All Overseas as a director of Billion Top.

7. The loan was not repaid. On 31 August 2002 Best Codes Nominees Limited, purporting to act as the company secretary of Billion Top, gave notice to the Companies Registry that (i) Great Wealth resigned from its secretary post; (ii) Great Wealth, Mr. HAU Wing Lam and All Overseas resigned from their directors posts; and (iii) Best Codes Nominees was appointed secretary of Billion Top.

8. By a notification dated 25 September 2002 Lau King Fai (hereinafter called “Lau” who is the 2^nd defendant in this action), purported to act as the director of Billion Top, gave notice to the Companies Registry that LAU and Li Hui Zhang (hereinafter called “Li”) were appointed directors of Billion Top on 25 September 2002.

9. On 26 November 2002 Best Codes Management Limited acting on behalf of Best Codes Nominee Limited sent an undated fax to the solicitors of All Overseas to inform All Overseas that All Overseas had been removed from its director post of Billion Top by a special resolution passed at an extraordinary general meeting of Billion Top held on 31 August 2002.

10. By an agreement for sale and purchase as well as an assignment dated 19 November 2002 Lau signed on behalf of Billion Top to sell the workshop B-9 on the 2^nd floor of Block B of the Hong Kong Industrial Centre at 481-491 Castle Peak Road, Hong Kong (hereinafter called “the Workshop” for short) to Wylie International Limited (called “Wylie” for short which is the 1^st defendant in this action) for HK$2.7 million.

11. By an agreement dated 25 November 2002 Wylie signed an agreement to sell the Workshop to the 3^rd defendant, Fortune Winner Corporation Limited (called “Fortune Winner” for short). This subsequent sale to Fortune Winner was not completed as the 3^rd defendant became aware of the present proceeding.

12. Billion Top, under its new management team, also entered into an agreement with Chelton Finance to settle the repayment of an outstanding loan owing by Billion Top to Chelton Finance. This loan was secured by a 2^nd mortgage over the Workshop. The outstanding loan sum formed the basis of a petition for winding-up brought by Chelton Finance against Billion Top in HCCW 1034/2002. This winding-up petition was subsequently settled.

13. On 29 November 2002 All Overseas took out a civil suit in HCA 4515/2002 to sue Best Code Nominees, Lau King Fai, Li Hui Zhang and Chelton Finance. In this action All Overseas sought the declaration of the court that (i) Lau is not and was never a director of Billion Top; (ii) an injunction to restrain the defendants to act as company secretary or director of Billion Top; (iii) a declaration that the EGM on 31 August 2002 is void; and (iv) a declaration that All Overseas is the director of Billion Top.

14. On 28 February 2006 All Overseas obtained leave of the Court to add Best Result, Great Luck and Chelton Finance as the 2^nd plaintiff, the 3^rd plaintiff and the 4^th defendant in HCA-4515/02.

15. On 22 March 2006 the Court of Appeal gave judgment in CACV 329/2005 (on appeal from the Order 14/14A determination in HCA 4515/2002) and ruled: -

(i) Chelton Finance was not entitled to convene an extraordinary general meeting of Billion Top without first having the shares of Best Result and Great Luck transferred to and registered in the name of Chelton Finance Limited and its nominees;
(ii) Chelton Finance cannot have the shares of Best Result and Great Luck transferred to and registered without applying to the old/existing board of directors (as at 30 or 31 August 2002);
(iii) a declaration that Best Codes Nominees is not and never was the company secretary, and that Lau and Li are not, and never were the directors of the company;
(iv) an injunction to restrain the 1^st defendant (Best Code Nominees), the 2^nd defendant (Lau King Fai) and the 3^rd defendant (Li Hui Zhang) and each of them whether by themselves, their servants or agents or otherwise howsoever from holding themselves out and acting as, in the case of the 1^st defendant, company secretary, and in the case of the 2^nd defendant and the 3^rd defendant, directors of Billion Top;
(v) a declaration that the EGM of 31 August 2002 is void.

16. On 1 November 2006 the defendants’ application for leave to appeal to CFA against the CA decision in CACV 329/2005 was refused.

17. On 15 December 2006 by consent of parties, the defendants were given leave by the Court of Final Appeal to appeal to the CFA (case ref: FAMV-46/06) on condition that the defendants paid into court on or before 28 December 2006 a sum of HK$250,000 as security for costs, in default of which the defendants’ application for leave to appeal to CFA and to adduce additional evidence in the appeal would be dismissed.

18. The amount of security for costs was not paid by the defendants and the defendants’ application for leave to appeal was dismissed on the defendants’ default of payment of security for costs in FAMV-46/06.

19. There has been a chain of litigations taken out between the parties and the related individuals or companies:-

HCCW 1034/2002 In September 2002 Chelton Finance presented a petition to wind up Billion Top. All Overseas caused Billion Top to oppose the petition. The winding up petition was dismissed with costs against Chelton Finance.
HCA 4515/2002 On 29 November 2002 All Overseas sought the declaration from court, inter alia, to declare Lau, Best Codes Nominee Limited and Li are never directors of Billion Top.
On 22 March 2006 Court of Appeal in CACV 329/2005 declared that Lau and Li are not and never were the directors of Billion Top.
The defendants’ application for leave to appeal to the Court of Final Appeal in respect of the determination of the Court of Appeal in CACV 329/2005 was dismissed on 29 December 2006 for the defendants’ failure to pay security for costs.
On 13^th August 2007 the defendants made applications for consolidation of the 3 cases HCA 4515/2002, HCA 405/2003 and HCA 742/2006 and for amendment of the pleadings in HCA 4515/2002. On 3^rd December 2007 Chelton Finance further made application to stay the proceeding. These 3 summonses were heard by Madam Registrar Au-yeung on 10 December 2007. On 13 December 2007 Madam Registrar ordered the proceeding in HCA 742/2007 to be stayed. She also granted leave to the defendants in HCA 4515/2002 to withdraw their applications to amend their pleadings in HCA 4515/2002 and to consolidate the 3 actions.
HCA 4779/2002 On 21 December 2002 Fortune Winner took out a writ to sue Wylie for specific performance.
HCA 405/2003 On 29 January 2003 All Overseas took out the present action to sue Wylie, Lau and Billion Top for (i) a declaration that the sale of the workshop is null and void, (ii) a declaration of the assignment dated 19 November 2002 signed by Lau on behalf of Billion Top is null and void; (iii) a declaration that Wylie is not and never was the owner of the workshop; and (iv) an injunction to restrain Wylie from disposing or dealing with the workshop.
After the CFA determination in FAMV-46/06, All Overseas obtained leave of the court on 11^th June 2007 to remove Billion Top from the defendants list and to rename it as the 2^nd plaintiff in this action. Fortune Winner was also added to the action as the 4^th defendant.
HCA 742/2006 On 3 April 2006 Billion Top, Best Result and Great Luck brought proceeding against Chelton Finance to seek, inter alia, a declaration that the plaintiffs are entitled to redeem the share mortgage on payment of HK$964,275 and HK$780,100.

20. The plaintiff now seeks the order of the court for summary judgment in the following terms: -

(a) a declaration that an agreement for sale and purchase dated 19 November 2002 signed by Lau on behalf of Billion Top for the sale of the Workshop to the 1^st defendant is null and void;
(b) a declaration that an assignment dated 19 November 2002 purportedly executed by the Lau on behalf of Billion Top for assignment of the property to the 1^st defendant is null and void;
(c) a declaration that the 1^st defendant is not and never was the owner of the property;
(d) an order that the registration of the following memorial be vacated: - (a) memorial 8818201 registering the sale and purchase agreement; (b) memorial 88833834 registering the assignment; (c) memorial 8829828 registering the sale and purchase agreement; and (d) memorial 8838332 registering the writ of summons; and
(e) final judgment against the 1^st defendant for possession of the property.

21. Wylie made crossed application on 6 December 2007 for stay of the plaintiffs’ summary judgment application until conclusion of the hearing of a compulsory winding-up petition filed against 1^st defendant by Treasure Dragon Industrial Limited. Hearing of this winding-up petition was scheduled for 30 January 2008.

Summary Judgment application under Order14

22. The present summons filed on 30 July 2007 was first fixed for hearing before Mr. Justice Stone. On 28 September 2007 Stone J ordered the plaintiff’s summary judgment application to be adjourned to be heard by a Master, hence the present hearing.

23. Mr. Chain, counsel on behalf of the plaintiff submitted to court,

(a) It is the final adjudication of the Courts of Hong Kong that Lau King Fai is not and was not a director of Billion Top. It follows therefore the purported agreement to sell as well as the purported assignment of the workshop signed by Lau King Fai were null and void.
(b) Lau King Fai was bound by the judgment given in CACV 329/2005 and the matter is res judicata between Lau and All Overseas.
(c) Fortune Winner (the 3^rd defendant in the present action in HCA 405/2003) had indicated a neutral stance and that it has no objection to judgment to be entered as claimed.
(d) The transaction cannot be salvaged by the bona fide purchaser claim of Wylie because: -
(i) the burden is on the 1^st defendant to show it is a bona fide purchaser: Chan Chun Chung v PBM (2004) 7 HKCFAR 178 at 183-184. The 1^st defendant has failed to satisfy that burden.
(ii) The purported sale of the workshop by Lau on behalf of Billion Top could not possibly have been a bona fide purchase without notice for the 1^st defendant was just another corporate vehicle of Mr. So Day Wing, the person operating Chelton Finance, and the 1^st defendant did not pay for the alleged “purchase”. The payment of part of the purchase price of HK$2 million for the Workshop came from the bank account of Mr. So’s wife.

24. The 2^nd plaintiff accepts that the 1^st defendant ought to be given credit in respect of the payment Wylie paid to the bank for the discharge of the Workshop mortgage in the sum of about HK$2.1 million. The 2^nd plaintiff argued the 2^nd plaintiff is, however, entitled to set off this sum of HK$2.1 million against the 2^nd plaintiff’s claim against the 1^st defendant in respect of the rental the 1^st defendant collected from the tenants of the workshop since November 2002. In light of the pending winding up petition against the 1^st defendant, the 2^nd plaintiff accepts that the reliefs prayed in paragraphs (3) to (7) of the Order 14 summons could be adjourned sine die with liberty to restore.

25. The 1^st defendant opposed the plaintiffs’ application for the following reasons: -

(a) the factual matrix between all the pending High Court actions are intertwined. One ought not consider the claim in HCA 405/2003 in isolation without reference to the other litigations.
(b) It is wrong for the plaintiffs to suggest the purchase of the property by the 1^st defendant was not a bona fide transaction without notice of the plaintiffs’ claim by simply relying on the fact that the 1^st defendant is controlled by a friend of Mr. So Day Wing. There is no evidence to suggest the 1^st defendant is the corporate vehicle of Mr. So.
(c) The HK$2 million part payment of the purchase price of the Workshop was a loan from the ex-wife of Mr. So while the balance of the HK$700,000 was paid by cash.
(d) Leave to defend ought to be given unless there clearly is no defence to the claim of the plaintiffs, as Court of Appeal had refused to decide in a summary application under O.14A the issue about the proper appointment of All Overseas, and the issue about the identify of the directors of Billion Top has not been finalised.
(e) Besides Treasure Dragon Industrial Limited has presented a winding-up petition against Wylie, all further proceeding against the 1^st defendant ought to be stayed for no creditor, save in exceptional circumstances, ought to be allowed any priority over the other creditors. If the plaintiffs have a good claim against the 1^st defendant, they would equally have a good claim against the liquidator in winding-up, the plaintiffs would not suffer any prejudice with a stay pending resolution of the winding-up petition. The court ought therefore preserve the status quo of the parties by granting a stay.

26. The 2^nd defendant opposed summary judgment to be made against him as he assumed no personal liability when he acted as a director of Billion Top in signing the agreement for sale and purchase and the ultimate assignment to Wylie.

27. The 3^rd defendant does not contest the plaintiffs’ application on condition that no order for costs shall be made against it.

28. In reply Mr. Chain said the bona fide purchaser concept has no application and does not assist the 1^st defendant as the 1^st defendant has not acquired any legal title over the property. Nor could the 1^st defendant enlist help from the apparent or ostensible authority principles since the 2^nd defendant was never clothed with either power when signing the agreement or the assignment.

Stay of Proceeding?

29. A stay of proceeding would be automatic upon the granting of a winding up order. Upon the presentation of a winding up petition, the order of stay of proceeding is an exercise of the judicial discretion of the court. Stay would usually be granted with the following objectives in mind: the need to maintain status quo of all creditors of the company so as not to give undue priority to any creditor to the prejudice of the others; the need to minimize costs; not to reduce the size of the estate in the event of the granting of a winding-up order; and not to bring about injustice to the parties.

30. On 30 January 2008 when the winding-up petition of the 1^st defendant was heard, all proceedings would be stayed should a winding-up be granted. Alternatively if no winding-up order was made, there would not be a need for the stay of the present proceeding.

31. To examine the interest in the workshop, one is examining the legal position of the parties created by way of their agreement and their assignment back in 2002, which was well before the presentation of the winding-up petition.

32. With the judgment of the Court of Appeal, Lau is not a director of Billion Top. His purported execution of the sale and purchase agreement on behalf of Billion Top could not have been a valid one. Whatever beneficial right Chelton Finance might have over the shares of Billion Top and the Workshop owned by Billion Top could not be back dated in time to 2002 to rectify the 2^nd defendant’s act which was done without legal validity at the time. Hence the conveyance and assignment of the land interest concerning the Workshop is not rectifiable.

33. I accept the concept of bona fide purchase has no application here as the shield is only applicable when a valid legal interest had been transferred to Wylie in the land transactions in 2002. The turquand rule would not have assisted Wylie either as the capacity of the 2^nd defendant in purporting to act on behalf of Billion Top is not a matter of the internal management or procedural irregularity. Rather it was the legal capacity of the director. In Morris v Kanseen [1946] AC 459 the House of Lords held that s.285 of the Companies Act 1985 (the equivalent of s.157 of the Companies Ordinance Cap 32 in Hong Kong) did not help the appellant in the action because the section only entitles a person to treat a transaction as binding on the company if the transaction is entered into by the directors who were properly appointed in substance, and the defect in their appointment was merely procedural.

34. As a consequence, Wylie has no legal title over the Workshop. The legal interest over the Workshop does not form part of the estate of Wylie even assuming a winding-up order would be granted on 30 January 2008.

35. I do not find the case of Hua Rong Finance [2001] 3 HKLR 623 directly relevant since Hua Rong Finance was dealing with a deception scenario which is completely different from the present fact circumstances.

36. Ownership is obviously inclusive of both legal and beneficial interests. Whether Chelton Finance has a beneficial interest to compel the directors of Billion Top to assign all shareholdings of Billion Top to Chelton Finance or its nominee and whether Wylie has any beneficial interest over the Workshop would be the issues to be adjudicated in HCA-742/2006. To grant the plaintiff an outright order for possession and to declare the 1^st defendant never has any beneficial interest over the Workshop would have deprived the 1^st defendant and Chelton Finance a claim of right over the share mortgage agreement and the sequential land sale transaction.

Orders of the Court

37. Summary judgment is granted in favour of the plaintiffs against the 1^st and 3^rd defendants as prayed in reliefs (a), (b) and (d) in paragraph 1 of their O.14 summons. No order is made against the 2^nd defendant as the 2^nd defendant was acting as a director, i.e. in the capacity of an agent of the disclosed principal, of Billion Top in signing the agreement and the assignment.

38. As the winding-up petition of the 1^st defendant is due to be heard in 2 days’ time, I do not find it necessary to grant any stay of the present proceeding.

39. Since the plaintiffs succeeded in obtaining half of the reliefs sought, costs order nisi is granted as follows:-

(a) Half of the costs of the present application is awarded in favour of the plaintiffs against the 1^st defendant;
(b) Half of the costs of the present application shall be costs in the cause of the action.

Addendum

[I] Dramatis Personae

Billion Top Garment Limited (Loan Borrower)
	Shareholders:	Best Result International Limited (BVI Co)
		Great Luck Holdings Limited (BVI Co.)
	Directors:	Great Wealth Trading Limtied
		Hau Wing Lam (appointed on 11/1/02 and Resigned on 26/1/02)
		Billion Top Garment Limited (appointed on 26/1/02)

Chelton Finance Limited (Lender)

Best Code Nominees Limited

Best Code Management Limited

Lau King Fai

Li Hui Zhang

Wylie International Limited (Buyer of Workshop from Chelton)

Fortune Winner Corporation Limited (Buyer of Workshop from Wylie)

[II] Chronology of Events

11/1/02	Signing of share mortgage of Billion Top shares for HK$600,000 loan by Best Result and Great Luck
26/1/02	All Overseas appointed director of Billion Top
31/8/02	Best Code Nominee Limited, acted as secretary of Billion Top and notified Companies Registry the following:-
	(i)	Great Wealth resigned from secretary post of Billion Top
	(ii)	Great Wealth and Hau Wing Lam resigned as directors of Billion Top
	(iii)	Best Codes Nominees appointed secretary of Billion Top.
25/9/02	Lau King Fai, acting as director of Billion Top, notified Companies Registry:-
	(i)	Lau King Fai appointed director of Billion Top on 25/9/02
	(ii)	Li Hui Zhang appointed director of Billion Top on 25/9/02.
19/11/02	Lau King Fai on behalf of Billion Top signed a sale and purchase agreement to sell the Workshop to Wylie Industrial
19/11/02	Lau King Fai on behalf of Billion Top signed the assignment to convey the workshop to Wylie Industrial
25/11/02	Wylie signed agreement to sell workshop to Fortune Winner.
26/11/02	Best Codes Management Limited acting on behalf of Best Codes Nominees Limited sent undated fax to All Overseas Limited to inform All Overseas Limited that All Overseas Limited has been removed from its director post with Billion Top by way of a special resolution held in the EGM of 31/8/02
29/11/02	Initiation of HCA-4515/02
	All Overseas (P1) Best Result (P2) Great Luck (P3) vs Best Code Nominees (D1) Lau King Fai (D2) Li Hui Zhang (D3) Chelton Finance Limited (D4)
	20/9/05		CFI decision
	22/3/06		CA decision (CACV-329/05)
	29/12/06		CFA decision (FAMV-2106/06)
21/12/02	Initiation of HCA-4779/02
	Fortune Winner Corporation Ltd v Wylie Industrial Ltd
29/1/03	Initiation of HCA-405/03
	All Overseas (P) vs Wylie Industrial (D1) Lau King Fai (D2) Billion Top (D3) Fortune Winner (D4)
3/4/06	Initiation of HCA-742/06
	Billion Top (P1) Best Rsult (P2) Great Luck (P3) vs Chelton Finance Limited

(M. Yuen)
Master of the High Court

Mr. Benjamin Chain instructed by Messrs So, Lung & Associates for Plaintiff

Mr. Leung Yin Kwong instructed by Messrs Fong Yin Cheung & Co. for the 1^st Defendant

Mr. Alexander Wong instructed by Messrs Kwan & Chow for the 2^nd Defendant

58676-EN-2007-09-28

ALL OVERSEAS LTD AND ANOTHER v. WYLIE INDUSTRIAL LTD AND OTHERS

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HCA 405/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 405 OF 2003

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BETWEEN

	ALL OVERSEAS LIMITED	1^st Plaintiff
	BILLION TOP GARMENT LIMITED	2^nd Plaintiff
	and
	WYLIE INDUSTRIAL LIMITED	1^st Defendant
	LAU KING FAI	2^nd Defendant
	FORTUNE WINNER CORPORATION LIMITED	3^rd Defendant

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Before : Hon Stone J in Chambers (Open to public)

Date of Hearing : 24 September 2007

Date of Judgment : 24 September 2007

Date of handing down Reasons for Judgment : 28 September 2007

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R E A S O N S F O R J U D G M E N T

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The principal applications

1. At this hearing there were two principal applications before the court:

(1) by Notice of Appeal dated 21 June 2007 the 1^st and 2^nddefendants herein sought to appeal against, and to set aside, an Order of Master Kwang dated 8 June 2007 whereby the learned Master lifted a stay of proceedings in this action as had been ordered by Master Levy on 6 October 2004;
(2) by Summons dated 30 July 2007 (the hearing of which had been ordered by Master Kwan to be heard before a judge on the same day and immediately subsequent to the appeal against the uplifting of the stay of proceedings), the plaintiffs sought various Order 14 relief.

2. In the event, this court dismissed the appeal from the Order of Master Kwang, and declined to hear the substantive Order 14 application, ordering that this application be adjourned to a Master to be heard at the same time as other pending applications in these cases.

3. I now give brief reasons for these decisions.

The factual background

4. The dispute in HCA 405 of 2003 cannot sensibly be viewed in isolation.

5. There are two other actions arising from the same broad factual matrix, and which all involve the affairs of one ‘Billion Top Garment Company’:

(a) the first in time was HCA 4515 of 2002;
(b) the last in time was HCA 742 of 2006.

6. Billion Top, as I shall term it, is (by very recent amendment) the 2^nd plaintiff in the instant proceedings, HCA 405 of 2003, and also is the 1^st plaintiff in HCA 742 of 2006; whilst not a party in HCA 4515 of 2002, this latter action is concerned with who was, or was not, a director of Billion Top at the time of certain transactions.

7. It appears to be the situation – although I am unsure why this should have transpired – that it was considered appropriate that proceedings in HCA 405 of 2003 should be stayed pending ‘final determination’ of proceedings in HCA 4515 of 2002: hence Master Levy’s Order of 6 October 2004 in these terms.

8. In this latter action, HCA 4515 of 2002, the plaintiffs therein took out applications for Order 14 and Order 14A relief.

9. Such relief was refused by Yam J by Order dated 20 September 2005, who dismissed the summonses and granted unconditional leave to defend, which Order substantially was reversed on appeal by the Court of Appeal in CACV 329 of 2005 in a judgment dated 22 March 2006.

10. The Court of Appeal in that case (Woo VP, Cheung and Yeung JJA) in fact granted certain declaratory and injunctive relief: two out of the three questions posed pursuant to the application under Order 14A were answered, and in addition the court restrained the defendants therein from holding themselves out as directors of Billion Top.

11. Mr Chain, who appears for the plaintiffs in HCA 405 of 2003, has told me that consequent upon this appellate judgment his clients, the plaintiffs, were granted leave, pursuant to the Order of Master Yu dated 27 July 2007, to withdraw the remaining prayers for relief (paragraphs 2A and 4) in HCA 4515 of 2002.

12. This, he said, effectively had cleared the way for the uplift of the stay of proceedings in the present case, and for his consequential application for summary judgment, wherein Mr Chain wished to obtain declaratory relief and – I suspect most important – an order for possession of an industrial property formerly owned by Billion Top which it is alleged was sold wrongfully and without authority by the 2^nddefendant, one Lau King Fai, to the the 3^rd defendant herein, Wylie Industrial Limited.

The Master’s appeal

13. As earlier indicated, the court dismissed this appeal.

14. I formed the firm view that the opposition on behalf of the 1^stdefendant, represented by Mr Leung Yiu Kwong, and on behalf of the 2^nd defendant, represented by Mr Alexander Wong, to the lifting of the stay of proceedings by Master Kwang was as much due to the plaintiffs’ looming Order 14 application as to the intrinsic merits of maintaining the stay of proceedings in terms of Master Levy’s October 2004 Order.

15. Be that as it may. In so far as argument was ventilated the retention of the stay, Mr Wong (with whose arguments Mr Leung agreed) maintained that in the circumstances there had not been a ‘final determination’ of proceedings in HCA 4515 of 2002 because first, there had been no Notice of Discontinuance filed by the plaintiffs, and second, by reason of the fact that, although they had not yet done so, the defendants would seek to amend their pleadings in HCA 4515 with the addition of a Counterclaim.

16. I was unimpressed with this argument, which may have had more force if such application to adduce a Counterclaim already had been mounted – which appears not yet to be the case, although I apprehend from that which counsel has told me that this is forthcoming.

17. For all practical purposes, therefore, as far as the plaintiffs’ claim is concerned – currently the only claim extant in the case – effectively there has been ‘final determination’ of the position coterminous with the withdrawal of the remaining prayers for relief, the plaintiffs professing themselves satisfied with the result of the Order 14/14A appeal in HCA 4515 of 2002.

18. However, there was another more general, and perhaps more compelling, reason underpinning the court’s dismissal of this appeal against the lifting of the stay, and I should have been minded to dismiss this appeal on this basis alone. It is this.

19. It is as plain as a pikestaff that what is badly required in these three cases is some degree of case management.

20. In fact, the defendants appear to have recognized precisely this, given that Mr Wong informed me that there is an outstanding application on the part of the defendants, by summons dated 13 August 2007, for consolidation (in some form) of these three actions, an application that in principle strikes me as eminently sensible and desirable.

21. As matters currently stand, this summons to consolidate has been called on before Master de Souza, and by Order of the learned Master dated 10 September 2007 now has been adjourned for dates to be fixed in consultation with counsels’ diaries.

22. I pause to note that the existence of this ‘consolidation summons’ – which the face of the summons makes clear is taken out in all three actions – cuts across the defendants’ present opposition to the lifting of the stay, given that there could be no question of ‘consolidating’ HCA 405 of 2003 with the other two actions if HCA 425 of 2003 were still to be affixed with an order for a stay. To be fair, in the course of argument Mr Wong recognized this anomaly.

23. The current state of play, therefore, is that these three actions are going to be subject, inter alia, to considered procedural direction at the forthcoming ‘consolidation’ hearing, and for my part I take the view that in all the circumstances this is the only appropriate manner in which to advance these cases towards that which, hopefully, will result in a judgment in the relatively near future, given that on the face of the papers the disputes the subject of these cases has been dragging on for too long.

24. In my judgment, therefore, the learned Master below was correct in the view that he took in terms of the uplifting of the stay of proceedings, and accordingly I made the following Order:

That the appeal against paragraph 1 of the Order of Master Kwang dated 8 June 2007 be dismissed.

25. As to costs, I see no reason in the circumstances why costs should not follow the event, and accordingly I make the following order nisi:

That these costs of this appeal are to be paid by the defendants to the plaintiff in any event, such costs to be taxed if not agreed.

The Order 14 application

26. Having thus disposed of the appeal against the Order of Master Kwang, Mr Chain for the plaintiff in HCA 405 of 2003 sought to mount his client’s application for Order 14 relief.

27. The background to this application, I am told, was that when the Master’s appeal against the uplifting of the stay was fixed for hearing before a Judge, the plaintiffs had made urgent application before the Practice Master to have the Order 14 application fixed on the same day, for subsequent hearing, the plaintiff apparently working on the assumption that the defendants’ appeal would not succeed.

28. As a matter of courtesy to counsel, I permitted Mr Chain to outline his case, and to say why he should be permitted to ‘leapfrog’ the usual procedure within the general High Court list that applications of this nature are first heard before a Master, and that a judge becomes involved only upon appeal.

29. Notwithstanding his usual forceful and persuasive submissions, in the event I declined to permit Mr Chain to argue his Order 14 application.

30. I did so for the following reasons.

31. Whilst I understood Mr Chain’s zeal in prosecuting his client’s case, not least in light of the judgment of the Court of Appeal in CACV 329 of 2005, given the tangled history of these cases I saw no reason in the circumstances to entertain the immediate hearing of this application for summary judgment, the prime aim of which appeared to be to obtain an order for possession of the disputed industrial property to which it is alleged Billion Top retains rightful title.

32. This initial (and instinctive) reason was buttressed by the fact that I took the view that to permit the Order 14 now to be argued in the context of a case in which the defendants insist that a stay should remain in place would not be consonant with any further appeal which might be mounted by the defendants, as of right, against the decision in the ‘stay appeal’ in the very proceedings in which the application for summary judgment now was sought to be advanced.

33. Of significance in this decision, also, notwithstanding Mr Chain’s insistence that HCA 405 of 2003 was a ‘discrete action’, I was of the firm view that the court was being asked, prematurely in my opinion, effectively to sound in isolation to the merits of an application under Order 14 in but one of the three interlinked cases involving the activities of Billion Top at a time when there was a forthcoming application for consolidation, and also for the mounting of a counterclaim in HCA 4515 of 2002; accordingly in my judgment nothing would be lost for the plaintiff’s Order 14 to be listed for hearing at the same time as these other interlocutory applications, and at a time when the court would have all three cases before it and thus would be able to see the ‘big picture’, which in my view is something which effectively has been obscured thus far in the conduct of this litigation.

34. For present purposes, therefore, I deliberately say nothing about the perceived merits of the arguments but briefly canvassed by Mr Chain in support of his summary judgment application; if and in so far as these arguments are good, they will be equally good when mounted at the appropriate time.

35. Finally, I was somewhat disconcerted by submissions made, both in the papers and by counsel on behalf of the defendants, that in causing the Order 14 to be listed immediately to follow the decision of the court in the Master’s appeal, that in effect the listing of this summary judgment application had been to “ambush” the defendants.

36. I am disinclined to say a great deal about this – and I am certainly not going to sound to the merits of the competing arguments in this regard – save to note that, whilst there is always a place for forcefulness in litigation, care must always be taken to ensure that every party has the opportunity fairly to put its case before the court.

37. In the present instance, in fact, within the context of the plaintiff’s Order 14 application counsel on behalf of defendants canvassed the issue of leave to put in further affidavit evidence to be utilized on the summary judgment application, and whilst in the event I was not then persuaded to make any order in this regard – it appeared that any such affidavit would, in effect, take the form of little more than legal submission couched in affidavit form – I am of the view that if and in so far as this position be reconsidered in light of the adjournment of the Order 14 application, that opportunity should be accorded to the parties to reflect on the evidence to be advanced and, if necessary, either to agree or in the alternative to obtain appropriate direction from the Master as to the adducing of any such additional evidence.

38. In the event, therefore, upon the plaintiff by counsel seeking to mount the Order 14 application, in the exercise of its discretion this court made the following Order:

That the plaintiff’s application for summary judgment, by summons dated 30 July 2007, be adjourned for hearing before a Master on a date to be fixed at the same time as the hearing of the defendants’ applications, by summons dated 10 September 2007, for consolidation of HCA’s 4515 of 2002, 405 of 2003 and 742 of 2006, and for amendment by way of Counterclaim in HCA 4515 of 2002.

39. The plaintiff’s application for Order 14 relief having been thus adjourned for hearing before a Master, the question arises as to the costs of today.

40. In this connection, after reflecting on all the circumstances I make the following order nisi:

That there be no order as to the costs of the hearing on 24 September 2007, in so far as they are referable to the plaintiff’s application, by summons dated 30 July 2007, for summary judgment.

It is worth pointing out that this costs order nisi sounds only to the costs expended with reference to the day of the hearing on 24 September 2007.

Other matters

41. For the sake of completeness I record that this court was asked to make certain other orders referable to minor housekeeping matters.

42. Thus, on the application of Mr Chain for the plaintiff, an order in terms was granted upon the plaintiff’s summons dated 14 June 2007 seeking leave to reamend the amended Indorsement of Claim as per the draft attached to the summons.

43. Further, in terms of the plaintiff’s summons dated 19 September 2007 under Order 24, rule 10, the court made the Order following:

There be no order on the summons dated 19 September 2007, save that the costs of the issuance of the summons be paid by the 1^st defendant to the plaintiff, such costs to be taxed if not agreed.

(William Stone)
Judge of the Court of First Instance
High Court

Mr Benjamin Chain, instructed by Messrs So, Lung & Associates, for the plaintiffs

Mr Leung Yiu Kwong, instructed by Messrs Fong Yin Cheung & Co., for the 1^st defendant

Mr Alexander Wong, instructed by Messrs Kwan & Chow, for the 2^nd defendant

(i)	Chelton Finance was not entitled to convene an extraordinary general meeting of Billion Top without first having the shares of Best Result and Great Luck transferred to and registered in the name of Chelton Finance Limited and its nominees;
(ii)	Chelton Finance cannot have the shares of Best Result and Great Luck transferred to and registered without applying to the old/existing board of directors (as at 30 or 31 August 2002);
(iii)	a declaration that Best Codes Nominees is not and never was the company secretary, and that Lau and Li are not, and never were the directors of the company;
(iv)	an injunction to restrain the 1^st defendant (Best Code Nominees), the 2^nd defendant (Lau King Fai) and the 3^rd defendant (Li Hui Zhang) and each of them whether by themselves, their servants or agents or otherwise howsoever from holding themselves out and acting as, in the case of the 1^st defendant, company secretary, and in the case of the 2^nd defendant and the 3^rd defendant, directors of Billion Top;
(v)	a declaration that the EGM of 31 August 2002 is void.

HCCW 1034/2002	In September 2002 Chelton Finance presented a petition to wind up Billion Top. All Overseas caused Billion Top to oppose the petition. The winding up petition was dismissed with costs against Chelton Finance.
HCA 4515/2002	On 29 November 2002 All Overseas sought the declaration from court, inter alia, to declare Lau, Best Codes Nominee Limited and Li are never directors of Billion Top.
	On 22 March 2006 Court of Appeal in CACV 329/2005 declared that Lau and Li are not and never were the directors of Billion Top.
	The defendants’ application for leave to appeal to the Court of Final Appeal in respect of the determination of the Court of Appeal in CACV 329/2005 was dismissed on 29 December 2006 for the defendants’ failure to pay security for costs.
	On 13^th August 2007 the defendants made applications for consolidation of the 3 cases HCA 4515/2002, HCA 405/2003 and HCA 742/2006 and for amendment of the pleadings in HCA 4515/2002. On 3^rd December 2007 Chelton Finance further made application to stay the proceeding. These 3 summonses were heard by Madam Registrar Au-yeung on 10 December 2007. On 13 December 2007 Madam Registrar ordered the proceeding in HCA 742/2007 to be stayed. She also granted leave to the defendants in HCA 4515/2002 to withdraw their applications to amend their pleadings in HCA 4515/2002 and to consolidate the 3 actions.
HCA 4779/2002	On 21 December 2002 Fortune Winner took out a writ to sue Wylie for specific performance.
HCA 405/2003	On 29 January 2003 All Overseas took out the present action to sue Wylie, Lau and Billion Top for (i) a declaration that the sale of the workshop is null and void, (ii) a declaration of the assignment dated 19 November 2002 signed by Lau on behalf of Billion Top is null and void; (iii) a declaration that Wylie is not and never was the owner of the workshop; and (iv) an injunction to restrain Wylie from disposing or dealing with the workshop.
	After the CFA determination in FAMV-46/06, All Overseas obtained leave of the court on 11^th June 2007 to remove Billion Top from the defendants list and to rename it as the 2^nd plaintiff in this action. Fortune Winner was also added to the action as the 4^th defendant.
HCA 742/2006	On 3 April 2006 Billion Top, Best Result and Great Luck brought proceeding against Chelton Finance to seek, inter alia, a declaration that the plaintiffs are entitled to redeem the share mortgage on payment of HK$964,275 and HK$780,100.

(a)	a declaration that an agreement for sale and purchase dated 19 November 2002 signed by Lau on behalf of Billion Top for the sale of the Workshop to the 1^st defendant is null and void;
(b)	a declaration that an assignment dated 19 November 2002 purportedly executed by the Lau on behalf of Billion Top for assignment of the property to the 1^st defendant is null and void;
(c)	a declaration that the 1^st defendant is not and never was the owner of the property;
(d)	an order that the registration of the following memorial be vacated: - (a) memorial 8818201 registering the sale and purchase agreement; (b) memorial 88833834 registering the assignment; (c) memorial 8829828 registering the sale and purchase agreement; and (d) memorial 8838332 registering the writ of summons; and
(e)	final judgment against the 1^st defendant for possession of the property.

(a)	It is the final adjudication of the Courts of Hong Kong that Lau King Fai is not and was not a director of Billion Top. It follows therefore the purported agreement to sell as well as the purported assignment of the workshop signed by Lau King Fai were null and void.
(b)	Lau King Fai was bound by the judgment given in CACV 329/2005 and the matter is res judicata between Lau and All Overseas.
(c)	Fortune Winner (the 3^rd defendant in the present action in HCA 405/2003) had indicated a neutral stance and that it has no objection to judgment to be entered as claimed.
(d)	The transaction cannot be salvaged by the bona fide purchaser claim of Wylie because: -
	(i)	the burden is on the 1^st defendant to show it is a bona fide purchaser: Chan Chun Chung v PBM (2004) 7 HKCFAR 178 at 183-184. The 1^st defendant has failed to satisfy that burden.
	(ii)	The purported sale of the workshop by Lau on behalf of Billion Top could not possibly have been a bona fide purchase without notice for the 1^st defendant was just another corporate vehicle of Mr. So Day Wing, the person operating Chelton Finance, and the 1^st defendant did not pay for the alleged “purchase”. The payment of part of the purchase price of HK$2 million for the Workshop came from the bank account of Mr. So’s wife.

(a)	the factual matrix between all the pending High Court actions are intertwined. One ought not consider the claim in HCA 405/2003 in isolation without reference to the other litigations.
(b)	It is wrong for the plaintiffs to suggest the purchase of the property by the 1^st defendant was not a bona fide transaction without notice of the plaintiffs’ claim by simply relying on the fact that the 1^st defendant is controlled by a friend of Mr. So Day Wing. There is no evidence to suggest the 1^st defendant is the corporate vehicle of Mr. So.
(c)	The HK$2 million part payment of the purchase price of the Workshop was a loan from the ex-wife of Mr. So while the balance of the HK$700,000 was paid by cash.
(d)	Leave to defend ought to be given unless there clearly is no defence to the claim of the plaintiffs, as Court of Appeal had refused to decide in a summary application under O.14A the issue about the proper appointment of All Overseas, and the issue about the identify of the directors of Billion Top has not been finalised.
(e)	Besides Treasure Dragon Industrial Limited has presented a winding-up petition against Wylie, all further proceeding against the 1^st defendant ought to be stayed for no creditor, save in exceptional circumstances, ought to be allowed any priority over the other creditors. If the plaintiffs have a good claim against the 1^st defendant, they would equally have a good claim against the liquidator in winding-up, the plaintiffs would not suffer any prejudice with a stay pending resolution of the winding-up petition. The court ought therefore preserve the status quo of the parties by granting a stay.

(a)	Half of the costs of the present application is awarded in favour of the plaintiffs against the 1^st defendant;
(b)	Half of the costs of the present application shall be costs in the cause of the action.

(1)	by Notice of Appeal dated 21 June 2007 the 1^st and 2^nddefendants herein sought to appeal against, and to set aside, an Order of Master Kwang dated 8 June 2007 whereby the learned Master lifted a stay of proceedings in this action as had been ordered by Master Levy on 6 October 2004;
(2)	by Summons dated 30 July 2007 (the hearing of which had been ordered by Master Kwan to be heard before a judge on the same day and immediately subsequent to the appeal against the uplifting of the stay of proceedings), the plaintiffs sought various Order 14 relief.

(a)	the first in time was HCA 4515 of 2002;
(b)	the last in time was HCA 742 of 2006.