Perak Pioneer Ltd v. Carrian Holdings Ltd

CACV000059/1985

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BETWEEN

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Coram: Cons, Fuad & Kempster, JJ.A.

Date of hearing: 13 June 1985

Date of delivery of judgment: 13 June 1985

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JUDGMENT

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Cons, J.A.:

1. These proceedings derive from a petition to wind up Perak Pioneer Limited which was bought by Carrian Holdings Limited, itself a company in liquidation. The original petition is dated the 3rd May 1984 and was amended pursuant to the order of the Court on the 15th June.

2. On the 8th January 1985 a summons to re-amend was issued. There had been other proceedings in the meantime, but it is not necessary to relate those. The application came before Mayo J. on the 28th March this year. It was opposed by the Company but eventually allowed. The Judge gave his reasons for doing so. They are very short and may easily be set out in full:

3. The Company appeals against that order.

4. Ground 1 of the Notice of Appeal suggests that "the learned Judge was wrong in law in failing to apply the tests laid down in Order 20 rules 5 to 8 of the Rules of the Supreme Court when considering the application of the petitioner to re-amend the Petition". We are told that what is really meant is that he disregarded principles contained in authorities relating to those rules.

5. Mr. Potts, who appears for the Company, has reduced these principles to three for the purposes of this appeal,and has then added a fourth which appears to be rather a separate ground of appeal, although not mentioned in his Notice. Then we find that in any event the appeal does not, as 2 at least thought it did, turn on principles relating to the order as a whole, but only to a few particular passages of the re-amendment authorised. No objection is, or was, taken to the bulk of the re-amendment. It is necessary therefore to deal with each particular passage in turn.

6. The first appears in paragraph 5A of the Re-amended Petition. The words objected to are "by agreement with the Company". This may be taken together "with associated words in 5B "due pursuant to the said agreement between the Company and your Petitioner". It is normal to give particulars of an agreement that is pleaded. None follow in this instance, indeed Mr. Ma, who appears for the Petitioner concedes he cannot do so. The allegation is based entirely upon part of an affidavit sworn in other proceedings on behalf of the Company. In my view the passage does not support the contention and the words complained of should be struck out.

7. Some objection was raised to a few words in paragraph 7 but the matter has not been seriously pursued.

8. Paragraph 8 the Re-amendment refers to certain entries which appear in one case in the books of the Petitioner but not in those of the Company, and in two cases in the books of the Company but not in those of the Petitioner. These are said to support the allegation in paragraph 16 of the close connection between the Petitioner and the Company. For myself I do not follow how they do and in my view they are an embarrassment. I would therefore delete from that paragraph all the words following the words "general ledgers" at the foot of page 9. I assume that the comma which is now present will automatically become a full stop.

9. The final objections relate to paragraph 10, with similar objections in relation to paragraph 13. I may deal with both of them together. In paragraph 10, at the end of the opening paragraph the Re-amendment has added the words "to the knowledge of your Petitioner and the Company". Firstly the knowledge of the Petitioner is immaterial. Secondly Order 18 rule 12(4) provides for particulars where knowledge is alleged. These are purportedly given by re-amendment at the end of the paragraph 10, and incorporated again at the end of paragraph 13, but they themselves are so lacking in particularity that in my view neither the allegation of knowledge nor the particulars should be allowed to stand.

10. The Re-amendment adds other allegations to paragraphs 10 and 13. These are at 10(d), (e) and (ee) to the extent of "or were affected in breach of their duties by the Directors of your Petitioner to the knowledge of the Company"; and similar words in 13(e). These allegations cannot be justly decided without the participation of 3rd parties, i.e. Plessey Investments Ltd. and the Directors of the Petitioner, and raise issues which are not suitable for decision in winding up proceedings. For these reasons I would exclude the sub-paragraphs and passages that I have just mentioned.

11. That only leaves the fourth matter which Mr. Potts introduced this morning, the suggestion that the Judge in effect abdicated his duty to exercise his discretion by allowing the Re-amendment on the sole basis that all would be dealt with on the subsequent motion to strike out the petition. With respect to the Judge I think that in fact is what happened, the Judge being perhaps over anxious not to, as he put it, "anticipate the motion which will be heard".

12. For these reasons, I would allow the appeal to the extent that I have indicated.

Fuad, J.A.:

13. I agree with all that my Lord Cons, J.A. has said, but have a few observations to make of my own.

14. It seems to me that the judge would have been perfectly entitled, had he thought the interests of justice so dictated, to have adjourned consideration of the application to amend the petition until the hearing of the motion to strike out the petition itself, and (depending upon the grounds of the striking out motion), perhaps, to direct that the application should be heard immediately after the motion, if it were still relevant. And if he had decided to do that, speaking for myself, that would have been an exercise of discretion with which I would not have interfered. But he did not do this and granted the application t o amend.

15. With the utmost respect to the learned judge I think this approach was wrong. An applicant, who seeks to amend a petition or other pleading is seeking an indulgence and has to comply with the relevant Rules.  The opposing party is fully entitled to object to the amendments on principles laid down by practice and the R.S.C. It was incumbent on the judge to decide, once he did not adjourn the matter, each issue raised as to the propriety of the amendments, on its merits.

16. As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the Court if necessary, but where an amendment is applied for it would be an unusual case where the Court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment.

17. I agree that the appeal should be allowed and with the order proposed by my Lord Cons, J.A. in relation to each of the paragraphs of the Re-amended Petition to which he has referred.

Kempster, J.A.:

18. I too agree with the order proposed and with the reasons given by my Lords and have nothing to add.

Representation:

Mr. Robin Potts, Q.C. & Mr. W. Poon (M/s Fairbairn & Kwok) for Appellant/Company.

Mr. Geoffrey Ma (M/s Wilkinson & grist) for Respondent/Petitioner.