MANDARIN RESOURCES CORPORATION v. DAVID CHENG HENG SOON AND OTHERS

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J U D G M E N T

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Cons, V.-P.:

1. This is an application for leave to appeal to Her Majesty in Council from a decision of this Court given on the 28th April this year. Why it has taken so long to come before us, we do not know, but it does not matter.

2. In substance two questions are raised for which leave is sought. The first relates to the appointment we made of a receiver over the shares held by the 4th Defendant in Markle Land Limited. The receiver, as we then understood, intended possibly to exercise the rights of a shareholder to call an extraordinary general meeting with a view to changing the directors of the Company. In my view whether or not he can do so is not a matter of great general or public importance, for it is a situation that can only arise in very rare circumstances.

3. I have a further anxiety in this respect, in that we did not directly decide that issue, although we may well have to do so in other proceedings which we understand to be on foot.

4. The second question has been referred to as one of "interlocutory issue estoppel". It was raised by way of an objection during the course of submissions last time. Mr. Potts, who appears now, as then, for the Applicant, has addressed us today at much greater length, and at much greater width, than he did before, with a view to persuading us that our decision is wrong. I prefer to express no opinion as to that, except to say that although I may have expressed the view of this Court in language not the most felicitous, I am not persuaded that our decision was indisputably wrong. Had I taken that view, then I think it would have been sufficient reason to refer this matter to their Lordships under the "or otherwise" provision of Rule 2 of the Order in Council.

5. I was at one stage this morning concerned that the effect of our decision might be to compel a defendant seeking to resist an application for interim relief and who was minded at some stage possibly to question the adequacy of the claim made against it, to raise that point, even to the extent of taking out a motion to strike out the Statement of Claim, at that early stage or otherwise hold his peace until the trial itself. But on further consideration I do not think that that necessarily follows. I feel I may have been misled by the label of interlocutory issue estoppel which has come, in my view wrongly, to be attached in this respect.

6. What this Court did on the last hearing was not to lay down any principle of the law on estoppel, interlocutory or otherwise. It merely decided that in the particular circumstances that were then before us, the Defendant's conduct was an abuse of the process; and that argument upon the lines sought to be put forward should not be accepted. That was a situation peculiar to this case itself, and I do not think that a decision as to whether we were right or wrong, would be of any general assistance or in other circumstances. Therefore for my part, I would refuse this application for leave to appeal.

Power, J.A.:

7. I concur and have nothing to add.

Macdougall, J.:

8. I agree and I too would refuse this application.