TIN SING MAINTENANCE AND CLEANING SERVICE COMPANY v. VIEWCASTLE LIMITED

IN THE HIGH COURT OF JUSTICE

BETWEEN

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DECISION

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1. On the 18th March, the parties came to a settlement. The mechanics adopted was what is known as a Tomlin Order. The terms of settlement were slightly amended and initialled by both counsel, and the formal order made by the court was:

2. In essence, the parties settled on terms that the defendant was to give three cheques, all postdated, to the plaintiff of $30,000 each, the first of which was to fall due on the 25th March. Suffice it for me to say that only on the 27th March, three cheques of such denominations were given by the defendant to the plaintiff. It is beyond dispute that the terms of settlement envisaged the availability of $30,000 to the plaintiff on the 25th March although it might be arguable precisely when these three postdated cheques were required to be delivered to the plaintiff as opposed to "issued". If the terms of settlement had been fully implemented, the plaintiff would have had the use of $30,000 as at the 25th March. Therefore, by the terms of settlement embodied in the Tomlin Order, the plaintiff was deprived of the use of $30,000 for two days.

3. Under liberty to apply for enforcing the terms of settlement, it would be open to the plaintiff to claim two days interest on $30,000 from the 25th to the 27th. But interest is not sought in the summons.

4. The summons lacks precision in terms. It seeks to restore the settled action between the plaintiff and the defendant, which is plainly misconceived. Then, the restoration sought in the summons is said to be "for the purpose of carrying out the terms of a consent order". There is no claim of the two days' interest in the summons.

5. I am told by counsel that the plaintiff is still holding the three cheques from the defendant. On these terms of settlement as they were framed, the plaintiff could not be put, by way of enforcement, in a better position than what it is in today viz. in possession of the three cheques from the defendant dated the 25th March, the 9th April and the 24th April. In these circumstances, the application of the plaintiff cannot be acceded to and I dismiss it.

6. Turning to the question of costs, the defendant's first cheque was late for, at least, two days despite the submission of Mr. Au that on proper interpretation of term (1) it was not incumbent upon the defendant to actually deliver the three cheques to the plaintiff within three days after the 18th March. I believe Mr. Au was seeking to argue that the mere drawing of these three postdated cheques within three days after the 18th March was sufficient to fulfil term (1) of the Schedule to the Tomlin Order although the cheques had not been delivered by the defendant to the plaintiff until the 27th March. However, Mr. Au accepted as the obvious intention of the parties to make available to the plaintiff $30,000 on the 25th March. In the circumstances, although the summons is misconceived, the defendant was late in delivering the cheques to the plaintiff who has been deprived of the use of $30,000 for two days. Taking all into consideration, the fair order for costs is, in my view, that there shall be no order as to costs. Therefore, the order I propose to make is: Summons be dismissed with no order as to costs.