TRANSAMERICA LEASING INC v. CHINA FOREIGN TRADE DEVELOPMENT COMPANIES INCORP

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 18 February 1997, the plaintiff obtained a Mareva injunction against the defendant on an ex parte application. On 27 March 1997, I considered a summons by the plaintiff for the continuation of the injunction. After argument, I discharged that injunction in a written judgement handed down on 2 April 1997. The defendant was not represented at the hearing when I handed down the judgement, although it must be said that it is my practice, to save costs, not to require any attendance at such a hearing. However, Mr Giles, the solicitor for the plaintiff, was present. He immediately applied for a stay off execution of my order for seven days to enable the plaintiff to consider an appeal. Believing that there was no prejudice to the defendant in allowing this for the short period requested, it not having alleged any hardship at the hearing on 27 March 1997, I granted a continuation off the injunction for seven days.

2. Mr Graham complains bitterly about the conduct of Mr Giles in applying for the stay without notice, although, inconsistently and perhaps diplomatically, he expressly says he makes no complaint about my behaviour in granting it. Perhaps Mr Graham is right that the defendant should have been given some notice of the application, but I am not considering that matter now. What I am considering is a summons by the plaintiff asking for a continuation of the injunction until the hearing of an appeal against my order.

3. The summons, in its citation, calls in aid Order 29. Mr Graham says that the plaintiff is not asking for a stay, but an injunction. Miss Cruden asks to amend the summons to make it clear that the plaintiff is applying for a stay. Mr Graham does not object to this "if the defendant is not prejudiced." He does not suggest any way in which the defendant could be prejudiced. In view of the fact that we have all known perfectly well from the outset the effect of the order that the plaintiff is seeking, I cannot see any prejudice. I will treat the summons, if it is necessary to do so, as so amended. I say "if it is necessary to do so" because I do not believe it is necessary to make a formal amendment to the summons to tell anyone concerned in this case that what the plaintiff wants is to keep the injunction in place until the appeal.

4. Mr Graham says that there may be some doubt as to my jurisdiction to grant the order sought, and says that it would be more appropriate for the plaintiff to apply to the Court of Appeal. I do not accept this. What the plaintiff seeks is essentially a stay of my order. I have jurisdiction to grant that, and, in my view, the judge who made the order is the most appropriate forum for such an application of first instance.

5. Mr Graham says very little about the merits of the application.

6. Miss Cruden points out that I expressed some unhappiness and uneasiness about the defendant's conduct in this case. This is true. In fact, the battle was a close run thing; "a damned nice thing" as Wellington said. I believe the Court of Appeal may well find I am wrong; a belief perhaps greater in this case than in some others. If I am wrong, the plaintiff may suffer hardship. It is not suggested that the defendant will suffer hardship if the injunction continues. If it does, it may apply to the court for relief.

7. If the plaintiff is right, a refusal of this application may well render the appeal nugatory.

8. In these circumstances I think it is right that I should grant a stay of my order until the decision on appeal is given. The effect of this is that the injunction will continue until this time. I so order.

9. To allay Mr Graham's fears that the plaintiff may not prosecute its appeal timeously, Miss Cruden undertakes that the plaintiff will file its notice of appeal within seven days of my original order being sealed. I note this. If the plaintiff fails to do so, the defendant may apply to discharge the injunction.

10. The costs of this application are to be costs in the appeal.