Lucky Wealth Consultants Ltd v. Horizon Technologies International Ltd

CACV000031/1991

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Hon. Power, J.A. & Hon. Sears, J.

Date of Hearing: 31 July 1991

Date of Judgment: 31 July 1991

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JUDGMENT

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Hon. Sir Derek Cons, Ag. C.J.:

1. This is a motion to set aside or vary the order of Mr. Justice Fuad, V.-P. giving final leave to appeal to Her Majesty in Council the decision of another division of this Court given on the 12th December last year.

2. The issue before the Court was whether a Deed of Settlement made on the 9th May 1989 between the parties to the action below and others was to be treated as part of the schedule to a Tomlin order by which the action itself was stayed on the same date.

3. The schedule provided for a series of payments to be made by the defendant to the plaintiff. The defendant having made one of those payments alleged that the Deed had been breached by the plaintiff thereby discharging the defendant from any liability to make any further payments. The Court, reversing the decision of the judge below, found against the defendant and entered judgment for the plaintiff in the sum of HK$1,000,000 and RMB 8,420,000. On the 28th March, leave was given to appeal on conditions as to security for the cost of the appeal and for the despatch of the record to London. No stay being requested, the Court accordingly directed that the judgment be carried into execution. In that circumstance, the second part of para. 2 of Rule 5 of the Order in Council regulating appeals from this jurisdiction required the plaintiff to put up security for the due performance of any order made by Her Majesty in Council.

4. Final leave was given on the 9th July upon a written ex-parte application with a supporting affidavit. In the meantime, the plaintiff had moved the other decision of this Court for leave to execute the judgment upon suggested terms of security to comply with Rule 5. That motion now stands part heard and will not be resumed until the 18th October.

5. The position now is that the record, having reached London, has been accepted by the Office of the Privy Council and a provisional date has been fixed for the hearing of the appeal. It is in fact three days before the proceedings in this Court are due to be resumed.

6. At one stage this afternoon I thought that that might raise questions of jurisdiction, that is to say, whether we have jurisdiction to set aside leave which has been acted upon, and the papers having reached their ultimate destination. It is not necessary to express any opinion on that because it is now accepted by both sides that this Court does have jurisdiction. The question is whether we ought to exercise it and so set aside the leave given by Mr. Justice Fuad.

7. The reason we are asked to do so is that the supporting affidavit did not mention the pending proceedings. It is suggested that this was a material factor which should have been put before the judge because a successful party in this Court, it is said, is entitled to have in its hands the fruit of the judgment here before the appeal goes to London. Further or alternatively, that if the judge had been reminded of the pending proceedings, it was likely that he would have deferred the final leave because, had he not done so, by the granting of leave this Court would have been divested of its jurisdiction to continue the pending proceedings.

8. In my view, with respect, neither of those points is sustainable and I would dismiss this motion.

Hon. Power, J.A.:

9. I agree.

Hon. Sears, J.:

10. I also agree.

Representation:

Mr. G.J.X. McCoy (John M. Pickavant & Co.) for plaintiff

Mr. Ronald E. Mayne (Richard Bryson, Victoria Chan & Co.) for defendant