KEEP HONOUR INTERNATIONAL INC v. PAXON INTERNATIONAL SHIPPING LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff is the disponent owner of three ships. These were chartered to the defendant. The plaintiff alleges that the defendant owes US$430,644.42 in respect of these charters.

2. On 22 January 1997, the plaintiff obtained a Mareva injunction against the defendant on an ex parte application. The inter partes summons came before me on 21 March 1997. On that occasion, I held that there was no evidence of a real risk of dissipation of the defendant's assets, and discharged the injunction.

3. On 22 March 1997, the plaintiff's solicitors wrote to my clerk saying, amongst other things, that - "We had decided not to instruct counsel to attend but only our assistant to the said hearing on confirmation received from [the defendant's solicitors] the previous day that they would not challenge our application particularly since they had no instructions to do so and not filed any evidence challenging our affidavit. Their only concern was about costs of the application. To our surprise, they made submissions to challenge our application mainly on the ground of evidence as to real risk of dissipation of assets on the defendant's part."

4. I directed that the matter be brought back before me. This was done on 2 April 1997.

5. It is indeed the case that the solicitor appearing for the plaintiff on 21 March 1997 seemed ill prepared, and the defendant's solicitor does not challenge that what was said in the plaintiff's solicitors' letter of 22 March 1997 is true.

6. It these circumstances, Mr Chua argues that I have the power to reconsider my decision of 21 March 1997.

7. The Supreme Court Practice, 1997, at page 712, says - "... it is within the powers of a Judge to alter his judgment at any time before it is entered and perfected." It is the case here that my judgment has not been perfected; the order has not been drawn up. The authorities support this proposition, but it seems to me that this is a power that should be exercised only in special circumstances. In my view, there are such special circumstances in this case. The plaintiff was misled, not deliberately, I am sure, into believing that the defendant would not oppose the summons so that the plaintiff's solicitors were not in a position to argue the matter fully. In this case, I am prepared to consider the matter afresh.

8. Before me, Mr Lee, for the defendant, had instructions not to consent to the order sought, but not to oppose it either.

9. Mr Chua argued that the following matters are material to my decision -

10. There is no evidence from the defendant to contradict any of this evidence.

11. Having heard a fuller argument, I believe Mr Chua has made out a case of a real risk of any judgment remaining unsatisfied unless a Mareva injunction is in place. This is particularly so in the absence of evidence or argument to the contrary. I am particularly impressed with the evidence that the defendant has broken repeated promises to pay from money that it received.

12. In these circumstances, I order that the injunction continue until further or-der.

13. The defendant's concern seems to be the costs, but I cannot see any basis for an order other than an order that the defendant pay the plaintiff's costs. I make an order nisi accordingly.