Chan Wing Kin and Another v. Chu Hon Cheong
Read the full judgment text of CACV 28/2000 on BabelCite. This Court of Appeal judgment was delivered on 2 February 2000.
1. This is an appeal from a decision of deputy judge To given on 20 January this year whereby he refused to vacate the dates for the hearing of a preliminary issue. The matter arises in a fairly long standing case. The action was commenced as long ago as March 1997. The claim was for repayment of a loan of $1.5 m.
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CACV000028/2000 CACV 28/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 28 OF 2000 (ON APPEAL FROM HCA 3245/1997)
---------------------- Coram: Hon Rogers JA and Ribeiro JA in Court Date of Hearing: 2 February 2000 Date of Judgment: 2 February 2000 ---------------------- J U D G M E N T ---------------------- Hon Rogers JA : 1. This is an appeal from a decision of deputy judge To given on 20 January this year whereby he refused to vacate the dates for the hearing of a preliminary issue. The matter arises in a fairly long standing case. The action was commenced as long ago as March 1997. The claim was for repayment of a loan of $1.5 m. 2. The initial defence filed was that there was an agreement to repay that loan in instalments; it was said that the first instalments were paid. The action had a fairly checkered history but it is unnecessary to go into that. At one stage, judgment was entered against the defendant. For some reason, in April 1998, that judgment was set aside by consent and the defendant was given leave to defend and file a counterclaim. 3. In September of last year, a consent summons was taken out seeking that there should be a trial of a preliminary issue. That preliminary issue was whether the loan was made to the defendant by the 1st named plaintiff alone or whether the loan was made by the 1st named and the 2nd named plaintiffs together. If the court were to determine that the loan had been made to the defendant by the 1st named and the 2nd named plaintiffs together, judgment would be entered for the plaintiffs for payment of the balance of the loan with interest. If the court should determine that the loan was made to the defendant by the 1st named plaintiff alone, leave would be given for the plaintiffs to file a reply and defence to counterclaim within 14 days of the determination. 4. An order was made pursuant to that consent summons on 24 September and on 30 September, dates were fixed for hearing that preliminary issue. Those dates are 10th and 11th of February. 5. In November of last year, there was introduced into the Canadian legislature, draft legislation which, it is thought, might make it more difficult for the defendant to secure Canadian citizenship, although it appears he has established his right of permanent residence in Canada. 6. It appears that there was some lack of communication between the lawyers acting for the defendant in this action in Hong Kong and the lawyers acting for the defendant in his application for citizenship in Canada. As a result, the lawyers in Canada arranged that the defendant should submit his application for Canadian citizenship on, it seems, 8 February, although there is reference in some of the correspondence to 9 February. It was said that there was some urgency in the matter in that the defendant should secure his rights as to citizenship as early as possible, preferably before the new legislation came in, because it appeared that the new legislation might require residency, in fact, as opposed to deemed residency. 7. When this came to the notice of the defendant last month, he sought an adjournment of the hearing of the preliminary issue. The plaintiffs objected to that. Therefore, application was made to the deputy judge to adjourn the hearing. That application was supported by affidavit but the kernel of the evidence in respect of it is contained in letters exhibited to the affidavits, not in the body of the affidavits. Those letters were written by the Canadian lawyer acting for the defendant, explaining why the date of 8 February should be adhered to. 8. On my reading of those letters what is to take place on 8 February is, as I have said, the submission of the application for Canadian citizenship. That, the lawyer says, will take a few days for him to prepare. It appears from the letters of 19 January and 23 January from the Canadian lawyer that it is really the Canadian lawyer's convenience that the date of 8 February has been picked. 9. In the letter of 19 January, he says :-
And then in the letter of 23 January, he says :-
And then the letter goes on to indicate that :-
10. In those circumstances, what the lawyer has not said is that the dates for the defendant's application are immutable. What he has said is that his own convenience makes him unavailable until March and, reading between the lines, he is apprehensive that the new legislation may become effective before the end of March. 11. I, for my part, find it extremely difficult to accept that this one Canadian immigration lawyer is the only person capable of handling this case on behalf of the defendant. I am totally unconvinced as to that. It is a fact in this court that the unavailability of lawyers for the presentation of a case is no ground for having the case adjourned, for there are plenty of other lawyers in Hong Kong. I presume the same must be so in Canada. The deputy judge below, in my view, correctly summarised the situation when he said :-
12. In my view, the deputy judge summed the matter up extremely well in those few words. I consider that there is no alternative but to dismiss this appeal. Ribeiro JA : 13. I entirely agree and have nothing to add.
Representation: Mr Louis K.Y. Chan, instructed by Messrs Hastings & Co., for the Plaintiffs Mr Anthony Ismail, instructed by Messrs Laurence Pang & Co., for the Defendant |
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