XCHRX YICK FUNG SHIPPING AND ENTERPRISES CO. LTD. v. NEW CENTRAL INTERNATIONAL (HOLDINGS) CO. LTD.

HCCL211/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO.211 OF 1999

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J U D G M E N T

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1. This is the culmination of a long running saga wherein the plaintiff has sought summary judgment against the defendant herein; indeed Mr Sussex SC suggests that this must be one of the longest Order 14 applications in recent history, given that it started as far back as March of this year.

2. The plaintiff's Order 14 application was dealt with by a judgment dated 14 July 2000. That judgment speaks for itself. In that judgment this court then declined to grant summary judgment in the amount sought, and concluded that the correct order in this unusual case was to order leave to defend, but that such leave should be conditional upon the defendant making a payment into court in such sum and in such manner as the court would in due course direct.

3. This led to the further hearing which took place on 9 October 2000. The purpose of that hearing, which produced a judgment of like date, was to assess the amount which was required to be paid into court by the defendant as a condition of having leave to defend. After hearing submissions from senior counsel on both sides, I took the view that the appropriate condition to be ordered with regard to payment into court was that the sum of HK$10 million should be so paid in within 28 days from that date, i.e. 9 October. That judgment of 9 October 2000 concluded with the court observing (at page 6) that if there was non-compliance with the order as now made in terms of conditional leave, judgment must be entered in favour of the plaintiff, and no doubt costs would follow in that event, but that the court would prefer to deal with that eventuality if and when it occurred. The court also noted in passing that without hearing further from counsel, it was by no means sure as to the correct sum for which any such default judgment should be entered. The order requiring payment into court of the sum of $10 million as a condition of leave to defend was, I am told by Mr Sussex, who once again appears on behalf of the plaintiff in this matter, perfected on 27 October 2000.

4. The condition so ordered was not complied with by the defendant, that much is common ground. And although the plaintiff's solicitors submitted to my clerk a draft order which they suggested was appropriate in the situation that had by then transpired, the court took the view that a hearing was appropriate in the very particular circumstances of this case. There has been some debate about the relevant judgment sum, but I think it is tolerably clear from the documents, and indeed Ms Law, who appears today for the defendant, appears now not to disagree that after taking into account various repayments, the principal sum of HK$268.4 million is outstanding. The contractual situation is that interest is to run on such sum at the rate of 30% from 1 June 1998, pursuant to clause 5 of the agreement which was entered into between the parties.

5. However, at today's hearing, Ms Law has made a further application. She has asked for an adjournment so that the matter may now be appealed to the Court of Appeal. Technically, in my view, and Mr Sussex concurs, the application should be to this court in the first instance to extend time for so appealing, and thereafter, in case of a refusal, to a single judge of the Court of Appeal. So I approach Ms Law's application in that context.

6. The order requiring payment into court was, as I have earlier observed, perfected on 27 October. This is an interlocutory matter, as both counsel agree, and therefore 14 days from 27 October produces the date of 11 November. There is no material before me upon which I can exercise my discretion. There is no draft Notice of Appeal; there is no affidavit explaining the delay; and Ms Law, who has done her best in trying circumstances, has simply been reduced to informing the court, from the bar, of the enormous difficulties her client faces.

7. There must be finality in commercial disputes, and it might be thought by an objective observer that this court already has leaned over backwards to accommodate the various requests for adjournments which have been made in this case. Certainly it is unusual for an Order 14 to be commenced at the beginning of the year but only to be concluded at the end of it. I am unable, in the circumstances, to grant Ms Law's application for an adjournment. The stark facts speak for themselves. If she wishes to pursue the matter before the Court of Appeal, that is a question for her and her client. But for my own part, I decline to adjourn this matter and I intend, given the history of this case, to formally enter judgment today.

8. As to the amount of that judgment, I am satisfied that the alternative formulation of taking the principal sum of $273 million (see clause 5 of the parties' agreement) and reducing it by the further payment of $4.6 million is the appropriate way to calculate the relevant judgment sum. Accordingly, my order is as follows :-

9. There is to be judgment in favour of the plaintiff against the defendant in the sum of HK$268.4 million. Interest is to run upon such sum at the contractual rate of 30% per annum from 1 June 1998 to the date of judgment herein, i.e. 7 December 2000, and thereafter at the judgment rate from time to time prevailing until payment.

[Submissions from counsel]

10. As to costs, Mr Sussex asks for the costs of this action, including the costs of these Order 14 proceedings. In the circumstances, Ms Law very properly feels that she is in no position to contest this submission. I further order that the plaintiff is to have the costs of this action, including the costs of the Order 14 proceedings herein, such costs to be taxed if not agreed.

11. If that is all for this morning, I thank both counsel for their assistance.