SANYO SECURITIES (ASIA) LTD. v. LIN KUANG LUNG, RAYMOND

IN THE COURT OF APPEAL

1995, No. 210 & 257
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. What I say now should be read in the context of what I said on February 1 this year.

2. The date now fixed for these consolidated appeals are June 25 & 26 this year. Those dates were fixed pursuant to a direction which I made on February 1. That direction was, in effect, that dates should be fixed in consultation with junior counsel's diaries.

3. The application then was that of the plaintiff.

4. Initially it was resisted by the defendant because initially the application was in effect to fix the dates in consultation with leading and junior counsel's diaries as opposed to junior counsel's diaries only.

5. The direction ultimately made was on the basis of a compromise reached by the parties and my willingness to go along with it. It is now said by the defendant that he would never have entered into that compromise but for the fact that he had been kept ignorant of certain steps which the plaintiff was taking with a view to making him bankrupt.

6. I am sure that there was no intention to mislead; but it seems to me that the net result is that the defendant was indeed misled.

7. Mr Waldron for the plaintiff has drawn my attention to two cases including Mr Justice Pickering's decision in Wong Wai-chun v. Chan Yuet-wah [1976] HKLR 69 in which the judge dealt with the effect of orders made by consent and the limited circumstances in which they can be upset.

8. There the judge accepted that the party seeking to upset the consent order was in ignorance; but he made it very clear in his judgment that all the means of knowledge was there under that party's very nose. He spoke, as we see at the top of page 72, about documents which that party had and which were "sufficient to put the whole world upon notice" of the material facts.

9. That makes that case very different from this one even treating this case as a "consent order" case. Here, what I regard as material facts were, innocently no doubt but significantly nevertheless, withheld from the court and from the defendant.

10. In those circumstances, defendant cannot be held to his "consent". In my view, such "consent" is vitiated by the non-disclosure. If it were not for the compromise, I would not consider it right to deprive the defendant of his right, in the normal way, to having this appeal fixed for hearing on the next available date or dates.

11. I understand that if I were to vacate the June dates and recall the direction which I made on February 1, so that the consolidated appeals will be fixed for hearing on the next available dates, they will be fixed for hearing on May 14 & 15 this year.

12. That, the defendant believes, puts him in a better position than he would be in with June dates. On principle and by reference to the practicalities, I think it is right for me to do this and I do it: I vacate the June dates; recall the direction made on February 1; and leave the Clerk of the Court to fix dates for the consolidated appeals on the next available dates so that the consolidated appeals will be fixed for hearing on May 14 & 15.

13. It remains only to hear the parties on the costs of this application and on the question of whether I should vary the order as to cost made on February 1.

[Costs]

14. As far as the order as the cost which I made on February 1 are concerned, the parties are content for it to remain. And so it shall.

15. As far as the costs of the present application are concerned, it seems to me that they should follow the event. The defendant has been successful; and I grant him the costs of this application in any event.

(K Bokhary)

Justice of Appeal