CHENG CHEUNG WANG v. LO NOI YUNG AND OTHERS

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J U D G M E N T

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Power, J.A.:

1. In this matter Mr. Percy appears for the two applicants, Madam Wong appears in person and there has been no appearance by defendants 1 to 5 and defendant 7.

2. This application for leave to appeal was made unsuccessfully before Hunter; J.A. and has now been renewed before this court. The history of the matter was outlined by Hunter, J.A., in the judgment which he gave when refusing to grant leave, as follows:

"A long ago as 7th November 1984 Deputy Judge Barnett first appointed Collier Petty as managers of the building. That appointment was in effect confirmed on 15th October 19$6 by H.H. Judge Scriven. The appointment was then expressed to subsist to 31st December 1987 or further order. On 16th & 17th December 1987, this court heard a series of appeals and applications concerning almost every aspect arising out of these various orders. It took time to consider its decision. On 31st December H.H. Judge Scriven made what was in effect a holding order extending the Collier Petty appointment to 31st March. On 12th January 1988 this Court gave its judgment, and hoped thereby to bring an end to this spate of litigation. Unhappily it has proved quite the opposite.

    On 29th December 1987 a meeting of the owners of the flats was convened, having been called by Collier Petty. This meeting was held pursuant to ore of the directions given by H.H. Judge Seriven. The intent was to try to ascertain the real wishes of the tenants in the building. The reason for this amongst other things was that there had been a great deal of confusion and dispute as to the identities and of the real existence of persons claiming to be tenants. In fact only 23 of the owners troubled to attend the meeting. They uanimously voted for the continuation of Collier Petty's appointment. This perhaps is the only direct evidence before the Court as to the real wishes of the tenants of this building.

    In view of the date in the continuation order made by H.H. Judge Seriven, Collier Petty took out a summons returnable on 31st March asking the Court to decide whether their management should continue or not. That summons came before H.H. Judge Yam on 31st March."

On that day Judge Yam adjourned the application to a date to be fixed and gave the defendants liberty to file affidavits in opposition within 21 days. Madam Wong and Mr. Law Siu Shing filed affidavits in opposition and Root Power Co. Ltd. and Trade Win Investment Ltd. caused affidavits to be filed containing material upon which they based an application to be joined in the proceedings. On the 6th of May Judge Yam heard the applications and made the two orders from which leave to appeal is now sought. In the first he extended the appointment of Chesterton Petty Ltd. (formerly Collier Petty Ltd.) as administrator of the Han Palace Building until the 31st of December 1990 and in the second he dismissed the application of Root Power and Trade Win. He did so on the basis that they had not shown themselves to be registered owners. Leave to appeal was sought and refused.

3. The deponents Mr. Wong of Root Power and Mr. Lai of Trade Win appeared at the hearing on the 6th of May and the record shows that each was allowed to represent his company.

4. On the 2nd of June there were aplications to Judge Yam to review his decisions. Madam Wong appeared in person on her application and a Mr. Tse appeared for Root Power and Trade Win. Mr. Tse submitted that he had not had enough time to prepare evidence and the court after holding that all the matters raised had already been considered dismissed both of the applications.

5. From the record it is clear that at the first meeting before Judge Yam neither Mr. Lai nor Mr. Wong had sought any adjournment and that at the review Mr. Tse did not seek an adjournment. Mr. Lai in his affidavit filed yesterday, the 19th of July, seeks to challenge the correctness of that record but no steps had been taken to have it rectified and we are satisfied that we must regard ourselves as bound by what appears therein.

6. On the 21st of June leave to appeal was sought from Hunter, J.A. and Mr. Michael Wong appeared for the 1st to the 5th defendants and for the 7th defendant and for Root Power and Trade Win and Madam Wong again appeared in person. Hunter, J.A. was satisfied that, as regards the application for leave to appeal against the appointment of Chesterton Petty, the trial judge was right in making the order that he did. He said:

"The first order was that he extended the appointment of Collier Petty to 31st December 1990. He did this, it appears to me, upon the evidence largely of the wishes of the owners expressed at the meeting on 29th December, and in the absence of any serious objection on the merits raised by any of the defendants actual or respective to this continuance. It seems to me that the judge cannot be criticised from making the order that he did in the light of the evidence then before him. It may be a matter of misfortune that the defendants chose principally to attempt to re-litigate old scores rather applying their minds to the merits of the application itself."

7. The position is the same before this court. Madam Wong has again attempted to relitigate old scores. She had placed before this court six grounds of submission none of which concerned themselves with the propriety of the order against which she may have a legitimate interest to appeal. The only relevant matter raised by Madam Wong is an objection to the order for costs made by Judge Yam. He ordered the costs of the hearing be deemed to be part of the expenses of management and that the costs of the application for review be to the plaintiff on a common fund basis. He clearly regarded the application to review as wholly without merit and we see no proper ground for interferring with his exercise of discretion in ordering costs on a common fund basis.

8. Secondly Madam Wong is concerned that the applicants be made co-defendants. This is, of course, the subject of the application for leave that has been argued by Mr. Percy and we now turn to consider whether the leave to appeal against the refusal of their application should be granted.

9. Before leaving Madam Wong's matter we feel that we should refer to the suggestion that she made in an affidavit filed yesterday that she was taken by surprise when she first appeared in front of Judge Yam and found that Collier Petty had made an application to have their administration continued. She said in the affidavit filed yesterdays:

"I had on the 5th of May 1988 at about 7p.m. returned from England to Hong Kong for the purpose of having to be a witness to give evidence on behalf of the 1st and 2nd applicants at a hearing of summons fixed for 6th May 1988 upon request of the 1st and 2nd applicants ...... In fact, I did not know there was also another summons taken out by Chesterton Petty Ltd. returnable on the same day so I had not prepared my Affirmation in opposing the plaintiff's summons of that day but had been filed affirmation in Court for such oppose purpose."

This suggestion is extraordinary in the light of her affirmation dated the 20th April and filed on the same day. In that affirmation she said:

"On 2nd April, 1958 I received the Inter Partes Summons issued by the Interim Adminstrator Chesterton Petty Limited filed therein dated the 21st March, 1988, and on the 20th April, 1988 I received two Summons issued by Trade Win Investment Limited and Root Power Company Limited with Affirmations affirmed by Mr. Lai Io V'a and Mr. Wong Chi Hou."

We will say nothing more than that Madam Wong plainly did, on her own admission, as early as 2nd April have notice of the application by Chesterton Petty Ltd.

10. The only other comment we make in this regard is that there is nothing in Judge Yam's record to indicate that there was any complaint as to lack of notice by Madam Wong on that date nor is there anything to suggest either that the matter was not fully ventilated before him or that Madam Wong was in any way inhibited in presenting her side of the matter.

11. We turn now to the leave being sought by the applicants. This was refused by Hunter, J, A. on the following terms:

"Any one who has considered the history of this litigation would have every reason for viewing that application with considerable circumspection. The evidence put before the judge of that stage was meagre in the extreme. It was later enlarged upon on an application for review. What then emerged can be summarized thus. It is said by Madam Wong and at least one of the companies that she sold all her flats in the building on 24th December 1987 for over HK$30m. This is a surprising date as the Court of Appeal had heard the appeal but not then delivered its judgment. No sale and purchase agreements of any sort have been produced in support of those assertions. The Court of Appeal gave judgment on 12th January. Since the hearing before H.H. Judge Yam a copy assignment dated 15th January from Madam Wong to Root Power has been produced, evidencing the assignment of 37 flats for a total consideration of HK$ 11.51m. Another copy assignment has produced dated 15th January between Sam Wo Brothers and Root Power purporting to assign two flats for HK$0.49m. These two documents suggest that Root Power bought these 39 flats for about HK$12m. Later, an assignment dated 7th April has been produced from Root Power to Trade Win of 34 flats for a consideration said to be HK$4.2m. Root Power also says that it sold two other units to a firm called Aceford Property on 18th March. But it owns only 1 flat in the building. It can be seen straightaway that the arithematic does not add up. Two flats are unaccounted for, as well as a very large sum, millions of dollars."

12. Mr. Percy does not seek to suggest that as matters stood before Hunter, J.A. he was wrong to refuse leave.

13. He now seeks leave upon an entirely new ground, i.e. that the applicants were wrongly refused an adjournment by the trial judge and that they should have leave to appeal against that refusal and that the consequent decision upon the issues should be set aside.

14. As I have already said there is nothing in the record to indicate that any adjournment was ever sought. There has been no attempt to rectify the record and we consider that we must regard ourselves as bound thereby. In conclusion we think it proper to observe that the object of the applicants in seeking to be joined in the proceedings was to oppose the extension sought by Chesterton Petty. This they could have done by reason of the share in the property which by then had been transferred to them in equity by Madam Wong. Until such transfer was perfected by registration Madam Wong could and was in equity bound to oppose the application at their behest. Whether or not the applicants were joined as defendants was therefore a matter of no more than academic reason.

15. In these circumstances leave must be refused.

16. There will be no order as to costs.