Golden Always Ltd. v. Australian Telephone Distributors Pty Ltd. (in liquidation)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 154
(Civil)

(by counterclaim)

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J U D G M E N T

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Rogers, J.A. :

1. This is an appeal from a decision of Stock, J. whereby he refused leave to appeal out of time against a decision of Master Chu whereby she refused the 1st defendant's application to adjourn the matter before her and ordered that the 1st defendant should provide security for costs in respect of the counterclaim in the sum of $100,000 within 35 days and stayed the action pending the provision of the security.

2. As background to this matter, I would mention that the original action against the two defendants was discontinued by the plaintiff in October 1996. The 1st defendant had a counterclaim against the plaintiff which is still extant. The 1st defendant is insolvent and is represented by Mr. Maydwell, acting in person. Winding-up proceedings against the 1st defendant have been stayed upon condition that the 1st defendant and Mr. Maydwell undertook to prosecute the counterclaim with due diligence.

3. On 18 December 1996, a summons for security was issued by the plaintiff seeking an order that the 1st defendant should give security for costs on its counterclaim. That matter first came on for hearing in January but the application was adjourned and the date for the hearing of that application was fixed later in January for the 25 April. Mr. Maydwell says in an affidavit filed for the hearing before the Judge below that it was only on 11 April that he became aware that the date for hearing of an appeal before the Privy Council in another related case involving the same parties had been fixed to be heard on 28 April of last year. He says that he was required to be in London to attend a consultation with leading counsel on the Friday before the 28 April, namely 25 April. As a result, he wrote a letter requesting a postponement of the hearing and it was refused. The Master's order made clear that the Master treated that letter as an application for an adjournment and paragraph 1 of her order reflects her refusal to grant that adjournment.

4. If there were to be an appeal, the Notice of Appeal should have been filed within 5 days after the hearing; taking into account the Sunday intervening that, on my calculation, means that the Notice of Appeal should have been filed by 1 May.

5. The Judge's notes indicate that Mr. Maydwell admitted before the Judge below that in December 1996 he was aware of the likely dates for the hearing of the appeal. Before us, Mr. Maydwell disputes that any such matter was said but it seems plain on the face of the correspondence between the parties that Messrs. Baker & McKenzie, who are the solicitors acting for the plaintiff in this matter and were acting in the matter in the Privy Council were aware on 3 December 1996 that the most likely date for the hearing in the Privy Council was to be 28 April 1997.

6. In those circumstances, it would be indeed extraordinary if one party to an appeal were notified of a likely date and the other party were not. Hence, even if Mr. Maydwell himself were not personally notified of that either by the Hong Kong solicitors or the London agents who were acting in the Privy Council matter, one or other or both of those must inevitably have been aware of likely dates even if confirmation of the exact date was not given until 11 April.

7. The Notice of Appeal on behalf of the 1st defendant was not filed until 3 June although it is admitted that first of all Mr. Maydwell was aware of the outcome of the hearing before the Master on about 29 April when he was so informed by a solicitor from Messrs. Baker & McKenzie and he immediately intimated that the 1st defendant would appeal. Nevertheless, matters were left until 3 June when a Notice of Appeal was filed.

8. In my view, the Judge correctly exercised his discretion not to permit an appeal out of time and I would not disturb his discretion in the matter. I would therefore dismiss this appeal.

Godfrey, J.A. :

9. The master decided to proceed with the application for security for costs which was before her and the judge held that she was justified in doing so. I see no reason to differ from the conclusion of the judge and I too would dismiss this appeal.

Nazareth, V.-P. :

10. I also can see no reason whatever to interfere with the judge's exercise of discretion. The appeal is accordingly dismissed.