HEUN SOOK JONG v. STEPHEN HENRY MILLER

1985, No. A3993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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DECISION

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1. Again, I find it quite unneccessary to call on Mr Whithead, Counsel for the plaintiff, to reply to the submissions made on behalf of the defendant by Mr Collins.

2. In his endeavour to support the application, Mr Collins has made the best of a very bad summons. This summons was issued to be entertained after the conclusion of the earlier summons, if disposed of unfavourably against the defendant.

3. Counsel for the defendant impresses upon the court that both under O.45, r. 11 and O.47 r. 1 of the Rules of Supreme Court, the Court has a wide jurisdiction and that there would be little prejudice in the matter of a few months, in fact six months is being asked for, for the plaintiff.

4. I need not attempt to have the factual disputes between the plaintiff and the defendant resolved in these proceedings. The matter can be determined purely on first principles. It can be conveniently decided on that narrow legal basis.

5. I have just disallowed an application for further time to appeal against the Master's decision. Likewise I will in due course reduce my oral judgment into writing.

6. Counsel submits that the judgment debt has, in effect, been paid as the defendant elaborated in his affidavit filed in support. What is being sought in the instant summons is that execution of the judgment debt be stayed "pending determination whether the judgment debt has been paid, alternatively be stayed pending a resolution of financial matters in matrimonial proceedings Divorce Suit No. 2132 of 1988. "

7. If in fact the judgment debt has been paid, obviously the defendant would require and is entitled to no stay. If the judgment debt has not been satisfied, then the defendant must advance reasons as to why execution should be suspended. A prayer for a stay pending determination as to whether or not the judgment debt has, in effect, been Paid without any other reasons seems absurd in the extreme. : The defendant's application is either premature or unsupported. If upon inquiry or determination as suggested in the instant summons, the judgment debt is found to have been paid, no stay need be sought. It is premature to seek a stay now without knowing the result of that enquiry. If upon such determination, the same is found not to have been satisfied or wholly satisified, then reasons must be given. Without reasons, the summons is left unsupported, and it would simply not be open to this court to even begin to consider whether the defendant should be granted a stay "pending determination whether the judgment debt has been paid." Settlement of financial matters is not, per se, a relevant consideration.

8. So long as the defendant is adamant that in effect the judgment creditor has been paid in full and over, it would be a futile exercise to consider an application for a stay. Satisifaction of judgment debt would itself be a good answer to execution.

9. It is a great pity that the plaintiff and the defendant involved in their present encounter have allowed themselves to be further entangled in these proceedings without much restraint. But the defendant's application is insupportable.

10. Under O.47 r.1, the Court has power to stay execution absoultely but that is not what is being sought by Counsel for the defendant. A period of six months is being suggested for enquiring into the question as to whether or not the judgment debt has been wholly satisfied.

11. In one of the defendant's affidavits, instalments seem, to be asked for. No such prayer is contained in the summons. But insofar as the instant summons of the defendant could be construed as calling the Court's attention to the possibility of payment by instalments, there is no proposal on record as to how the same is to be met - how the judgment debt is to be paid if found either wholly or partially unsatisified. Moreover, without any concrete proposal, clearly, Counsel for the plaintiff would not be in a position to have his client properly advised and the plaintiff would not be able to decide whether to consent to the proposal or to resist it without assistance from Counsel for the plaintiff, it would be difficult for this Court to approach the question of instalments.

12. Mr Collins refers to O.45 r.11. Counsel submits that that rule confers upon the Court a very wide discretion. O.45 r.11 enables the Court to grant a stay of execution so as to consider what other relief or terms should, in justice, be granted "on the ground of matters which have occurred since the date of judgment or order." Such matters must necessarily relate to merits. Matters raised merely on personal or financial grounds are not matters envisaged by O.45 r.11.

13. The defendant maintains to the end, through Counsel, that in his understanding the judgment debt has wholly been satisfied. Time would be required, so suggested Counsel for the defendant, for the defendant's assertion to be conclusively established for the benefit of the plaintiff. The plaintiff seeks to execute the judgment on the defendant and threatens to issue a bankruptcy notice. These steps allegedly threatened by the plaintiff are drastic steps and would obviously cause the defendant considerable concern. Despite some degree of sympathy felt for the defendant in his situation, on the application as it stands, it would not be right for this Court to exercise its discretion granting a stay of execution as prayed for on the grounds canvassed by Counsel.

14. The application of the defendant by summons Should be dismissed and I dismiss it with costs to the plaintiff.

1985, No. A3993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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DECISION

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                At the commencement of these proceedings, Counsel for the plaintiff intimated that certain matters would have to be resolved. However, on the threshold issue, the Court turned to Counsel for the defendant, Mr Collins for submissions. The Court invited Counsel to confine himself to the application for extension of time to appeal against the Master's decision. At the conclusion of the submissions of Mr Collins, I find that I need not call upon Mr Whitehead, Counsel for the plaintiff. I shall, in due course, reduce this oral judgment into writing, if only to have my reasons more elegantly put.

                The proceedings between the plaintiff and the defendant based on a dishonoured cheque of $800,000, bearing the date of the 15th June 1985, have taken a tortuous course. Having commenced proceedings against the defendant on that dishonoured cheque, after the filing of massive affidavits on behalf of as well the plaintiff as the defendant, on the l8th November 1985 the Master gave leave to sign judgment in favour of the plaintiff on an O. 14 application. A stay was subsequently granted. I shall turn to that stay in a moment or two. Suffice it to say, a Notice of Appeal was lodged on the 20th November 1985.

                In fact, it was on the 9th December 1985, that a stay of execution was granted "until after the hearing of the Notice of Appeal filed herein by the Defendant". Stay was thus for a period with reference to the Notice of Appeal lodged on the 20th November. I shall call it "the former Notice of Appeal. "

                After the lodging of the former Notice of Appeal, so run the allegations of the defendant, there was a Provisional Agreement between he, the defendant and the plaintiff whereby the plaintiff agreed to forbear, during the time of the attempted reconciliation, to sue the defendant on the judgment debt and the defendant agreed to withdraw the appeal.

                Paragraph 7 of the Defendant's affidavit filed herein on the 21st June does not reflect such an alleged Provisional Agreement :

"At my request the Plaintiff agreed not to pursue the case against me in return for which I agreed to withdraw the appeal. We agreed that all legal actions between us would stop immediately."

                On the 13th January 1986, the former Notice of Appeal lodged was, by consent, withdrawn. The allegation coming from the defendant is that the withdrawal of the appeal against the Order made by the Master on the 18th November 1985 was expected to be revived if attempted reconciliation should fail. Put another way : the Defendant allegedly agreed not to appeal pending the attempt at reconciliation. The Consent Order refers to no such proviso. It was an Order made by consent by Mayo, J. in Chambers on the 13th January 1985 in the following terms : (1) Appeal herein be withdrawn; (2) There be no order as to costs. For the present agruments of Counsel, I proceed on the basis of his Provisional Agreement and assume that the withdrawal of the former Notice of Appeal, even by consent and in those terms, would not forever bar the defendant from seeking to re-open his grievance against the Master's O.14 judgment.

                What seems to be in the way of the defendant is that almost two years and nine months has now elapsed since the 18th November 1985 when the O. 14 judgment was entered. The attempted reconciliation has failed. The plaintiff applied and obtained an order for the stay granted on the 9th December 1985 to be lifted. That would appear to be quite redundant as the stay was linked to the former Notice of Appeal which had been withdrawn.

                The defendant has since secured a stay of execution until the hearing of the instant Notice of Appeal. Having obtained a stay, quite inexplicably the defendant caused to be issued an inter panes summons the next day, intending to withdraw his previous summons on which a stay of execution was granted. That later summons filed on the 20th July 1988 was withdrawn with no order as to costs.

                In the instant Notice of Appeal lodged on the 13th May 1988, it would be incumbent upon the defendant to seek the Court's indulgence for enlargement of time so as to bring it on before this court nearly two years and nine months later. Counsel for the defendant submits that in the unusual circumstances of this case, there is an actual or built-in, express or implied if you like, explanation for not prosecuting the appeal against the Order of the Master in time.

                Counsel maintains that because of these unusual circumstances, the defendant has not seen fit to revive his appeal against the Master's order until now. Counsel refers to the case of Revici v. Prentice Hall Incorporated ⁽¹⁾. The determination of the Court in that case does not seem to be of comfort to Mr Collins, Counsel for the defendant. Counsel relies on the ratio decidendi that on an application for leave to appeal out of time, a sufficient explanation would certainly be conducive to due exercise of judicial discretion.

                We have, in my view, a different situation here in these proceedings. This is not a case where an explanation for merely not prosecuting an appeal against the Master's order in time is required. The defendant lodged his former Notice of Appeal within time; hence his right to appeal against the Master's order was an accrued one. What transpired in the present case is that the defendant deliberately and effectually deprived himself of his accrued right to appeal. He abandoned it by a withdrawal. No effort was made on the part of the defendant to preserve his right or safeguard his interest. There is no explanation given by the defendant as to why no steps have been taken to ensure that he would not be prejudiced by withdrawing the former Notice of Appeal.

                Before the former Notice of Appeal was withdrawn, the defendant consulted his then solicitor, Mr Jolly of Messrs Deacons. In paragraph 9 of his affidavit filed herein on the 21st June 1988, the following statement was made :

"9. As soon as our reconciliation was agreed upon I wrote to my solicitor, Mr PGV Jolly of Deacons, requesting him to withdraw the appeal herein. In a letter dated the 13th January he advised one against this move but said he would comply with my instructions. Being unwilling to do anything which might jeopardize our reconciliation, I declined to take Mr Jolly's advise (sic). He therefore withdrew the appeal and the Plaintiff did not ask for costs. At no time since that date has the Plaintiff ever sought to enforce the judgment against me."

                It is evident that the defendant has taken no step to preserve his right when he effectually, against legal advice, destroyed his own accrued right to appeal. The defendant has given no explanation as to why no such precaution has been taken. He was unwilling "to do anything which might jeopardize (the) reconciliation", but that was only the reason why he caused the former Notice of Appeal to be withdrawn. It is difficult, in the circumstances, for judicial discretion to he exercised in favour of the defendant, granting him indulgence and further time to have his appeal against the Master's Order prosecuted.

                Moreover, the defendant now alleges that he has, in effect, paid the judgment debt. In paragraph 3 of his first affidavit filed on the 2nd August 1988, the defendant says, "I believe that all the payments referred to above should be taken into account. " He refers to payments effected in the course of the matrimonial proceedings. He concluded : "clearly, I have satisfied the judgment debt and asked this Honourable Court for a stay pending an enquiry into the matters referred to above. "

                That affidavit was filed in support of a summons for a stay of execution "pending determination whether the judgment debt has been paid" alternatively, "pending resolution of financial matters in matrimonial proceedings, Divorce Jurisdiction Suit No. 2132 of 1988. " Nevertheless, it is the defendant's assertion that no judgment debt is outstanding.

                The defendant claims that the judgment debt has been paid. There exists, therefore, according to him, no subject-matter for further adjudication. Less, would there be any matter to be examined and deliberated upon by the court on any appeal. On that assertion, the defendant seeks the court's indulgence for an extension of time so as to enable him to have the order of the Master given almost two years and nine months ago, to be properly challenged. Clearly, indulgence should not be so granted. Clearly, judicial discretion should not be exercised in favour of the defendant.

                As I commenced by saying, it is quite unnecessary to be briefed on matters troubling Mr Whitehead. Suffice it for me to conclude : insofar as the defendant's application seeks further time to have his instant Notice of Appeal heard against the order given by the Master on the 18th November 1985, the same cannot be acceded to. No further time should be granted and I refuse that application with costs, subject to what Counsel for the defendant has to say, to the plaintiff.

(1)    [1969] 1 All E.R. 772