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CACV000105/1994
IN THE COURT OF APPEAL
1994 No. 105
(Civil)
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| BETWEEN |
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PERFECTECH INTERNATIONAL LIMITED |
Appellant(Defendant in
the first
mentioned High
Court Action
and Plaintiff
in the
second-mentioned
High Court
Action) |
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AND |
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CHUNG PAK BATTERY WORKS LIMITED |
Respondent(Plaintiff in the
first mentioned
High Court
Action and
Defendant in the
second- mentioned
High Court
Action) |
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Coram: Hon. Penlington, J.A. and Sears, J.
Date of hearing: 16 September 1994
Date of judgment: 16 September 1994
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J U D G M E N T
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Penlington, J.A.:
1. This is an appeal from an order of Mayo J. which was in turn an appeal from a decision of Master Beeson involving two actions HCA No.10431 of 1993, in which the respondent here is the plaintiff, was filed on 16th November 1993. HCA No. 10721, in which the appellant is the plaintiff, was filed on 24th November 1993. The matters in dispute in both actions involve the sale of printed boxes by the appellant to the respondent, some of which were delivered, but others were not because the respondent says the first lot were defective. There is also an argument about right of inspection and other matters such as storage charges but essentially both actions concern the same contract between the parties. Mayo J. allowed the appeal against the Master's decision that HCA 10431 brought by the respondent should be stayed in favour of HCA 10721 brought by the appellant and ordered that the appellant's action be stayed in favour of the respondent's. He cited the relevant authorities which we have been referred to here, in particular Thomson v. South Eastern Railway [1882] 9 Q.B.D. 320, and he took into account all relevant factors such as the respondent's action being brought first in time, albeit not by a great deal; that the predominance of the burden of proof probably lay on the appellant and that the respondent's claim for damages consequent on what it says is the appellant's failure to deliver what it had agreed to do is considerably less than that of the appellant which claims $1,800,000 plus storage charges and other damages. Having taken all those factors into account, however, he decided that where a party has been sued it should not bring a separate action in respect of that same matter just to obtain the juridical advantage of being a plaintiff but should counterclaim within the same proceedings. We would only say that seems to be eminently sound unless there are unusual factors present which does not seem to be the case here.
2. This was essentially a matter for the trial judge, and we must treat Mayo J. as being the trial judge, to make a decision as to procedure and we do not see that it can be said that his discretion has been exercised wrongly. There is no merit in this appeal which should be dismissed.
Sears, J.:
3. I agree that this appeal should be dismissed. The judge exercised his discretion on well made principles, had regard to all relevant matters and in my judgment this court is not permitted to interfere with that exercise.
Penlington, J.A.:
4. The appeal is dismissed. The respondent is to have its costs of the appeal.
| (R.G. Penlington) |
(R.A.W. Sears) |
| Justice of Appeal |
Judge of the High Court |
Representation:
Miss Audrey Eu, Q.C. and Mr. Andrew K.N. Cheung instructed by Baker & McKenzie for Appellant.
Mr Edward K.S. Chan, Q.C. and Mr. Rimsky K.K. Yuen instructed by Hoosenall & Neo for Respondent.
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