INDIAN OVERSEAS BANK v. NGAI KWOK CHUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This assessment arises from an unusual order given on application under 0.14 RSC before another court. At the close of that hearing, and after a late defence affidavit questioning the failure to apply certain credits to the amount owed, the Master ordered both interlocutory and final judgment. Final judgment was for US$11,000,000.00, with interlocutory judgment for the balance to be assessed.

2. Mr. Barlow, both then and now for the plaintiff, assures me that the basis of my learned former colleague's decision was his concern to give the plaintiff a final judgment for the minimum certain amount. The difficulty here is that no discernible thought process has contributed to the calculation of this supposedly certain amount. It is not in origin a sum identifiably separate from the unquantified balance, as the claim covers one amount for the overall liability of the defendants as guarantors of bank facilities.

3. Mr. Chan for the defendants has advised me that he has no instructions and has been told orally that his services are no longer required. Mr. Chan also confirms that both the defendants are aware of today's hearing and have received a copy of the plaintiff's affidavit seeking to quantify the balance owed. I accept therefore that the defendants are effectively in default, although nominally represented.

4. The order for the assessment gave the parties leave to give evidence on affidavit and this, for the plaintiff, comprises an affirmation of the Chief Manager of its main branch. Affirmations have not been filed for the defendants in these proceedings, and in order to do justice to their contentions I am obliged to refer to affidavits filed in the 0.14 proceedings. This procedural anomaly further highlights the eccentric nature of the order on with I now sit, insofar as today's proceedings become tantamount to a part-heard 0.14 before a different judge.

5. I must however do what I can with what I have before me, and I am satisfied that there is no injustice to the defendants. They are after all in default and have failed to file affirmations for today's hearing. Moreover, the plaintiff's own affirmation invites me to consider the defendants' contentions in the 0.14 proceedings which, through their lateness, gave rise to today's hearing.

6. Finally, Mr. Barlow for the plaintiff has suggested that the plaintiff's affirmation is in effect a formal proof of quantum on default of appearance, and this is perhaps the correct way to approach the position.

7. Suffice it to say that I am satisfied from the plaintiff's affidavit that it has disposed of the defendants' arguments as to uncredited remittances. I am also satisfied from the calculations presented that the total amount due, giving credit for the US$l1 million already awarded, is US$12,262,756.00 plus the HK$ amount of $466,057.42. There will accordingly be judgment for these two amounts with costs and a certificate for counsel.