PATRICK WONG MAN HUNG v. HARUNA CO. LTD

IN THE COURT OF APPEAL

1996, No. 198

(Civil)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. This appeal was set down for hearing by the appellant in the ordinary way. Today's hearing date was fixed on 15th October 1996.

2. The appeal is against the order of Master Cannon made on 18th July 1996, ordering the appellant to pay the respondent/judgment creditor, monthly instalments of some $75,000 per month. The grounds of appeal are that:

"... the Master erred in law and in fact that the Appellant/Judgment Debtor was able or would be able to satisfy the Judgment by the instalments as ordered.

The Master ought to have held that an instalment order is inappropriate as the Appellant/Judgment Debtor was unable or would be unable to satisfy the Judgment in and under such financial circumstances as disclosed at the examination."

3. No bundle was put in. On 10th January, i.e. literally one working day before today's hearing, a consent summons for the hearing of the appeal to be "adjourned sine die with liberty to restore" was filed. No reasons to support to the application nor any explanation whatsoever was furnished. In the circumstances I declined to make the order sought. The appellant's solicitors were immediately informed. At 4.21 p.m. that same day, 10th January 1997, the appellant's solicitors faxed the Registrar inter "tlia stating this:

"We write to inform you that our client and the Respondent are now actively negotiating for settlement of the above action. There is serious chance of a settlement coming out.

To preserve both parties and especially our client's status in these proceedings, it is advisable that the said hearing of the Application of hearing of the Appeal be adjourned the hearing sine die with liberty to restore. We shall therefore be obliged if you could allow an order in term of the consent summons."

There still being no facts or details stated to give any substance to the "serious chance of settlement coming out", I again declined to order that the hearing be vacated.

4. Yesterday, the 13th January, during the lunch break, a further fax was received from the appellant's solicitors, saying:

"We have communicated this to our client. We are however instructed that our client is at the moment unable to afford to brief a Counsel to attend the hearing to apply an adjournment.

As the adjournment is agreed by both parties, it is in the interest of both parties to adjourn tomorrow's hearing to another day if necessary. If the parties will settle, which is very likely (otherwise, the Plaintiff/Respondent will not agree on such adjournment), the costs will be saved. If tomorrow's hearing is to be proceeded, and settlement is reached later, costs and the Court's time will be wasted."

5. At today's hearing, Mr Wilson Yeung, the appellant's solicitor has appeared out of courtesy to the Court, but no appearance has been made by the appellant either in person or by counsel. Mr Yeung, of course, cannot be heard nor does he have instructions to appear. In those circumstances, there having been no appearance nor any explanation, it is appropriate that the appeal be dismissed for want of prosecution. But before we do so, it is necessary to say that once an appeal has been set down, an appellant should be ready to proceed. Although the consent of both sides is a factor the Court will bear in mind, it is far from sufficient of itself to justify an adjournment and the consequent waste of time and resources of the Court, the costs of which the parties do not meet or reimburse. Nor even more so does it justify the consequent exacerbation of waiting times and extended court lists.

6. There is also another aspect of the matter that calls for comment. Applications to the court, and particularly arguments in support, should not be pursued by fax. The courts do not engage in hearings and argument by correspondence even by that means. That is well known and does not require this Court to state it. Fortunately this is usually well understood by most solicitors.

7. Reverting then to the hearing of the appeal, there having been no appearance by the appellant, we dismiss the appeal.