LLOYDS BANK PLC v. MR IE SZUE HONG AND OTHERS

1984, No. 8342

IN THE HIGH COURT OF JUSTICE

HONG KONG

----------------

---------------

DECISION

---------------

1. The only matter at issue is the prayer for vacation of the date for the examination of the 4th and the 5th defendants pursuant to 0.49B of the Rules of Supreme Court.

2. This is a short point which I need not trouble Mr Mughal for the 3rd defendant.

3. The background against which the instant Notice of Appeal was lodged is free from any complexity : the 4th and the 5th defendants have been adjudged in the sum of the judgment debt in favour of the 3rd defendant. Oral examination of the 4th and the 5th defendants pursuant to 0.49B was granted on the application of the 3rd defendant. For the purposes of such oral examination, it was sought by the 3rd defendant to have certain documents adduced by the 4th and the 5th defendants. The parties went before Master O'Donnell. After submissions had been made to the learned Master, an order was made at the conclusion.

4. The learned Master's order was pronounced orally. Mr Kam, solicitor for the 4th and the 5th defendants has filed an affirmation in support of the instant Notice of Appeal on the 7th June 1988, setting out in paragraph 5 what he maintains to be the gist of the orally pronounced order of the learned Master. On behalf of the 4th and the 5th defendants, Mr Kam complains also of the imprecision with which the order is said to have been finally perfected, but the blunt grievance, as the matter now stands on Mr Kam's assertions, is that the order, so perfected, does not truly reflect the order of the learned Master as orally pronounced on the 26th April 1988, digressing therefrom both in substance and in scope. It is unclear as to whether the alleged imprecision lies merely in the language used in the perfected order or whether it is said to extend also to the substance and scope of the order orally pronounced as aforesaid or both.

5. Counsel for the 4th and the 5th defendants acknowledges as a settled practice that insofar as the alleged imprecision, standing alone, requires explanation, his lay clients would be entitled to approach the learned Master, even informally, for clarification. See Lam Yeong Wood and Another v. Standard oil Company of New York ⁽¹⁾. Insofar as the same is said to have departed from the substance and scope of the learned Master's Order as pronounced, Counsel for the 4th and the 5th defendants also agrees, as he is presently advised, that it is to be exclusively dealt with under 0. 20 r.11 of the Rules of Supreme Court, which is better known as the provision under the Slip Rule.

6. It is evident, therefore, that the Notice of Appeal as founded on the assertions made in the affirmation of Mr Kam is premature and misconceived. Both Counsel are of one voice that save for the prayer for vacating date, the Notice of Appeal shall have to be withdrawn and that the 4th and the 5th defendants shall have to return to the learned Master for rectification under the Slip Rule and/or clarification under the settled practice.

7. Before I turn to the remaining controversy sought to be determined under the instance Notice of Appeal, I should mention in passing that the 4th and the 5th defendants were enjoined by the order of the learned aster to produce the requisite documents within 7 days of the adjourned examination of these defendants, scheduled to resume on the 16th June. Technically, at least, both the 4th and the 5th defendants are in breach of that order to-day in the absence of any attempt to secure a stay.

8. Counsel for the 4th and the 5th defendants maintains that the prayer for vacation of the adjourned date for the resumed examination of his clients would serve as well practical purposes as the purpose of relieving the 4th and the 5th defendants from continuing to be in contempt. If the Master were prepared to amend the perfected order both in substance, scope and clarity as envisaged in the contention advanced on behalf of the 4th and the 5th defendants, there would appear to be no further necessity for vacating the date of the resumed examination. Disclosure of documents in compliance with the terms of an order accepted by the 4th and the 5th defendants should have been made in time. Counsel refers to the likely administrative delay in obtaining documents from the Companies Registry and from the banks. Counsel informs the Court that with only three more working days in view of the impending public holiday on Monday, there would not be time enough for these documents to be prepared and submitted. Time estimate has not been verified by any affidavit. No explanation is offered as to why preparation of the documents within the contended substance and scope has not been undertaken or completed within the 7 days laid down by the learned Master.

9. Counsel for the 4th and the 5th defendants also concedes that an application for a stay should have been made in proper time to the learned Master himself in view of the wishes of these defendants to test the perfected order on appeal. No such application is made to this Court even as of now. The application for the date of resumed examination to be postponed would have the effect of frustrating the time limit set by the learned Master and removing the 4th and the 5th defendants from continuing to be in breach. These indulgences should be clearly sought. It is indeed a somewhat indirect way of applying for a deferment or stay of the order of the learned Master made on the 26th April.

10. In view of the lack of any satisfactory explanation from the 4th and the 5th defendants as to why documents within the terms in para. 5 of Mr Kam's affirmation and the contended scope have not been prepared in time and the manner in which the learned Master's order in particular the time limitation therein imposed, is sought to be obliquely disturbed, I can hardly find any justification for this Court to accede to the request made on behalf on the 4th and the 5th defendants. That being the only remaining issue which this Court is called upon to determine. I conclude the proceedings today by rejecting the application of Mr Lau for vacating the adjourned date for the resumption of examination of the 4th and the 5th defendants.

(1) 3 [Chambers] HKLR 18 at p. 19