UNITED MARBLE CO. LTD. v. GOLDEN DRAGON LAND DEVELOPMENT LTD.

CACV63/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 63 OF 1999

(On Appeal From HCCT No. 19 of 1998)

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(by counterclaim)

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J U D G M E N T

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Nazareth, Ag. CJHC (Giving the Judgment of the Court)

1. We have two matters before us. The first is an application to extend the time specified by Rogers J.A. in his order of 8th June. By that order, he required the Defendant i.e. the Appellant to give security for costs by 22nd June. The Defendant applied for an extension of time in an unusual way in the affirmation of one of its directors, Mr. Tan who represents the Defendant before us today with leave from Rogers J.A. In his affirmation, Mr. Tan simply says this:

"I am duly authorised by the Appellant to make this affirmation on its behalf in support of its application to extend the payment of security to court. In the meantime, the Defendant is applying for adjournment of the hearing of the action."

2. The reason given for seeking an extension is as follows:

"The Appellant's assets are mostly real properties which are mortgaged to various banks. The Respondent on 16th March 1999 filed a winding-up Petition against the Appellant which is presently stayed. However due to the said Petition, the Appellant's bankers have frozen the Appellant's accounts and are unlikely to grant further banking facilities to the Appellant. The Appellant is unable to raise sufficient funds to provide security for the Respondent's costs. The Appellant find the only way is to seek assistance from its PRC shareholders. However, it may take a couple of weeks to arrange the funding."

3. The amount, it should be mentioned is $400,000.00. Before us today, Mr. Tan says he will require another two weeks. The money is said to be in the Mainland; it cannot be remitted because there are restrictions on remittances. He also says that the mother company, the group holding company, is not prepared to advance the money because of the petition for winding-up. We have to say that it seems to be a strange reason, as will become clear.

4. We should also mention that Mr. Tan says he will require 45 days to study the documents and asks also for adjournment of the hearing of the appeal which was to commence today. He says that he is unprepared because the solicitors withdrew early in June. Mr. Barrie Barlow who with Mr. David Tsang appears for the Respondent today resists that application. He points out from the accounts of the group, which have been exhibited before us, that their net assets are stated to be $2.35 billion. We have to say that it is extraordinary in the circumstances, that the group holding company cannot advance a mere $400,000.00 that is needed as security.

5. More than that he submits, and has demonstrated, that all the matters Mr. Tan refers to were before Rogers J.A. Furthermore, on the face of it, the Notice of Appeal that has been lodged by the Defendant simply does not question the main finding of the judge. It seems in the result, that only a very minor matter of 72 panels remain as the matter in issue.

6. But there is the other matter we should mention i.e. the very clear terms of Roger J.A.'s order was that if the security were not put into place by 22 June, that is two days ago, the appeal would stand dismissed. By the order he also provided means to facilitate the establishment of that position by allowing it to be proved by the solicitors for the Plaintiff, certifying such default to the Registrar. That certificate is now in place. However it is not needed because it is plain from Mr. Tan's own affidavit that the amount has not been lodged since he asks for time within which to provide it.

7. In all the circumstances, it is quite clear that no good reason for extension of time has been shown. When parties lodge appeals, it is incumbent upon them to pursue and prosecute them with all due expedition. We are not satisfied here that that this has been done. As we have said that no good reason has been shown for an extension of time and we refuse it. In any case, we have to add that the order made by Rogers J.A. would already have taken effect and must be regarded as having taken effect two days ago. The appeal already stands dismissed. We have nevertheless addressed the grounds simply to ensure that Mr. Tan understands them as he might not have appreciated the legal niceties. In the result the application for extension is refused and the appeal stands dismissed.

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