THE HONGKONG AND SHANGHAI BANKING CORPORATION v. STAR TRANS INTERNATIONAL LTD

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. On the 16th September 1987 Jones, J. granted the HongKong and Shanghai Banking Corporation's declaration that, as against Star Trans International Ltd. their right in relation to the property of Charro Ltd in 6,003 drozen textile quota category 630 prevailed. Star Trans appealed to this Court before which, to some extent at its own prompting, application was made so to amend the Notice of Appeal as to allege that, insofar as the judge had found that opposition by Star Trans to the grant of the declaration sought had been abandoned, he erred. However, by judgment given on 15th January 1988 we found as a fact that Star Trans had abandoned its opposition to the relief sought and was not, in consequence, entitled to pursue the appeal which was therefore dismissed.

2. At the request of Star Trans the consequential order was not drawn up or perfected. We are not therefore functus officio. National Benzole Co. Ltd. v. Gooch⁽¹⁾, Collin Navigation Co. S.A. v. Perusahaan Pertambangan  Minyik Dan Gas Bumi Negara (Pertamina)⁽²⁾. Application is now made to re-amend the Notice of Appeal to add a further ground, to re-open the appeal and further to argue it.

3. The further ground sought to be added reads:

"As an alternative to ground 4 hereof the learned judge erred in granting the bank's claim for a declaration because opposition to the same was abandoned and not on the merits and after proper argument".

Then, slightly unusually but helplfully, authorities were given.

4. It is conceded by Mr. Poon on behalf of the bank that this proposed further ground has obvious merit and, having heard argument from Mr. Ismail on behalf of Star Trans, we do not expect that the principle stated by Buckley L.J. in Wallersteiner v. Moir⁽3) at p. 1029 will be contested. We allow the application to re-amend and, since the appeal may, in our view^, be re-opened, exercise our discretion so to permit. It will fall now to adjudicate on the merits as to which, already, we have heard considerable argument. Due to the lapse of time or, perhaps, to human frailty, we would like to have the issues again rehearsed before us.

5. The order which we make on the Notice of Motion dated 19th January 1988 is, accordingly, that no order be drawn up or entered in the appeal until our further order, that the defendants have leave to re-amend their Notice of Appeal in the terms recited without prejudice to any further amendment that may be thought appropriate and that the hearing of the appeal do continue. Unless opposed we will order that the costs of the Motion be costs in the appeal.

(1) [1961] 3 All ER 1097

(2) Unreported civil Appeal No 80 of 1985 (judgment of 13.3.86)

(3) [1974] 1 WLR 991