Malteser Hilfsdienst Hospital an Hai v. Shun Cheong Steam Navigation Co Ltd

CACV000032/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 32 OF 1973

(On appeal from O.J. 1038/72)

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 7th November 1973.

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JUDGMENT

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Huggins, J.:

1. I agree that the appeal must be dismissed. It is common ground that the final extension of the time for bringing suit in respect of the claim under the "Virginia's" Bill of Lading No.2 (the one with which we are concerned on this appeal) expired on 11th April 1972 and that the writ was not issued until 28th April 1972. The judge was asked to exercise an equitable jurisdiction to prevent the Respondents from relying upon the statutory period of limitation. It was not, I think, disputed that such a jurisdiction existed, but it was contended, and the judge held, that the circumstances of this case did not justify its exercise. It is, perhaps, in one sense a border line case but I have no doubt on which side of the line it falls, however much sympathy one May have with the Appellants and their advisers.

2. Everything turns upon the telephone conversations and the terms of the letter then stated to have been sent by the Defendants to the Appellants' solicitors. It must be borne in mind that Mr. Ives was not in ignorance that the Respondents were acting throughout with the advice of their Protection and Indemnity Club. Indeed, when the period of limitation was originally due to expire the Respondents themselves granted a six months' extension to the Hong Kong agents but subsequently purported to reduce that extension to one of three months because that was the length of the extension given by their Club direct to the London principals. The reduction appears to have been accepted and a second extension was granted at the expiration of the three months. When, therefore, Mr. Chan said on the telephone that there was no need to worry because an extension was always granted in these cases, it is clear that he was merely expressing his own expectation that the Club would agree to an extension, whereupon the Respondents would do likewise. Mr. Chan never said that the letter which he alleged he had sent granted the further extension sought. Indeed he never stated clearly what his letter did say, but Mr. Ives admitted it was obvious to him that Mr. Chan was deliberately avoiding the positive assertion that he agreed to an extension. In spite of this it appears from para. 7 of Mr. Ives's affidavit of 15th May 1973 that he came to assume that the missing letter actually confirmed the further extension. The learned judge was of opinion that nothing had been said which could reasonably form the basis of such an assumption and that in effect Mr. Ives had persuaded himself to hold his hand from issuing a writ. The extended period of limitation did not expire for 18 days after the conversation of 23rd March: the letter had still not been received: and yet nothing more was done. I appreciate that if Mr. Ives had justifiably understood that the extension had been granted there was no more to be done, but in my view his conclusion was not justified. If there was no doubt at all about the granting of an extension there was no reason for Mr. Chan to be vague. The fact is that Mr. Chan was not willing to commit himself until he had heard again from London.

3. Counsel for the Appellants relies upon Hughes v. Metropolitan Railway Co. (1877) 2 App. Cas. 439, but I do not think that case assists him. There the lessees expressly indicated that their proposal to sell the property to the lessor was to avoid the necessity of compliance with a notice to repair and that they would not begin the repairs while the proposal was under discussion. It was as a result of this that the House of Lords decided there was an implied agreement to waive the right to forfeiture for breach of the covenant to repair while negotiations were continuing. Here there was no representation that an extension of time to bring the suit had been granted and no implied promise that an extension would be granted whatever might be the tenor of the reply from London.

7th November 1973.

Representation: