SHENZHEN UNIVERSAL ENTERPRISES INDUSTRY AND TRADE CO SUPPLIES AND SALES TRADE DEPARTMENT v. WEI BUN TRADING CO LTD AND OTHERS

Civil App. 69/88

IN THE COURT OF APPEAL

(ON APPEAL FROM HIGH COURT

ACTION NO A1563 OF 1988)

________________

______________

J U D G M E N T

______________

Kempster, J. A. :

1. This is an application to a single judge of the Court of Appeal made pursuant to section 35(1) of the Supreme Court Ordinance in an action where the plaintiffs claim against the defendants some HK$6.5m; being monies paid upon a consideration which has wholly failed or damages for breach of contract or both.

2. On 29th February and 16th Parch 1988 injunctions were granted by Wong J and Garcia J, respectively, inhibiting, subject to provisos, the withdrawal and disposition of the assets of the defendants within the jurisdiction. Application was made inter-partes to discharge these injunctions on the ground of the failure of the plaintiffs to make full disclosure. That application failed. Nazareth J. gave his reasons on 26th May. I am told that the defendants intend to appeal against that decision.

3. On 30th May a successful application was made, I take it without prejudice to any question of appeal, for leave to the first defendants to withdraw the sum of HK$250,000 from the assets subject to injunction to meet legal costs. Such money was to be paid out of the personal accounts of the 2nd, 3rd and 4th defendants. Successful application was also made for leave, having retrospective effect, permitting each of the personal defendants to withdraw the sum of HK$20,000 per calendar month, as from the 16th March, to meet personal expenses. Today the plaintiffs apply for a stay upon the whole of the order granting such leave pending the hearing of their own appeal against it. No Notices of Appeal have, I am told, yet been filed perhaps because, as yet, the relevant orders made below have not been drawn up.

4. What seems to me significant is that in the affidavit relied upon in support of the application to make withdrawals the deponent did not condescend to give any particulars about the personal financial position of the 2nd, 3rd or 4th defendants which information, in my view, is critical. I therefore proposed to make the following order upon this application:

"Upon the plaintiffs, by their solicitors, undertaking to file a Notice of Appeal against the order of Nazareth J made on 30th May 1988 so soon as that order has been drawn up, there will be a stay on the liberty granted to the 2nd, 3rd and 4th defendants to withdraw HK$20,000 or any sum per month retrospectively or at all from the assets subject to the injunctions made on 29th February and 16th March 1988 until the hearing of the appeal or further order".

5. There is no stay on the order in relation to HK$250,000 required for legal costs.

6. The costs of this application will be costs in the plaintiffs' appeal.