South-east Asia Petroleum Services Co (Private) Ltd v. South-east Asia Petroleum Supplies (HK) Ltd

CACV000061/1975

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Coram: Briggs, C.J., Huggins, J.A. & Li, J.

Date of Judgment: 19th March 1976.

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JUDGMENT

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Huggins, J.A.:

1. This case reaches us in a somewhat extraordinary manner. It is an appeal against an order of Pickering, J. (as he then was) dated 28th November 1975 reversing an order of Mr. Registrar Jones, made as long ago as 29th November 1971, whereby the Registrar gave leave to the Plaintiff company to enter judgment under 0.14.

2. There is another appeal involving the same parties in our list for today, a fact which is relevant only by virtue of a cable which the Court has received from a Mr. Eveland, formerly the managing director of the Defendant company, in which Mr. Eveland seeks an adjournment of both appeals. I say he was "formerly" the managing director because on 30th December 1971 Blair-Kerr, J. made an order for the compulsory winding-up of the Defendant company, since when the company has been under the control of the Official Receiver. At first sight Mr. Eveland would appear to have no locus standi of any kind, but on the same day as that on which Pickering, J. made the order now appealed against he gave leave to Mr. Eveland to prosecute the appeal from the Registrar's order in the name of the company. We are told that far from agreeing to that course the Official Receiver actively opposed Mr. Eveland's application. However, no appeal against that order has been brought and we are faced with the fact that Mr. Eveland was permitted to continue with the appeal and was represented by counsel at the hearing of it. We can hardly refuse to hear him upon this further appeal. Apparently he was given similar leave in the other proceedings, but in those proceedings the solicitors who previously acted on his behalf have had their name removed from the record and no other solicitors have been appointed. Whatever may be the necessity for Mr. Eveland to be present for the purpose of those proceedings, his presence or absence is nihil ad rem in the present appeal: he has solicitors and they have instructed Mr. Goodbody of counsel to appear before us. Accordingly we refused to consider granting an adjournment of this appeal.

3. The confusion which has dogged these proceedings throughout is exemplified by the fact that the order appealed against bears the title of the winding-up action. The two matters ought to have been kept entirely separate and I shall confine myself strictly to the papers in the record now before us. Although we do not have it and it was not exhibited to any of the affidavits, there appears to have been placed before the judge a copy of the statement of affidavits, of the Defendant company propored pursuant to s.190 of the Companies Ordinance. It was from a perusal of that statement that the judge concluded that the Plaintiffs might be claiming some $100,000 more from the Defendant company than was in truth owing. He recognized that the difference might be explicable on the basis that the debt was originally incurred in Singapore dollars and that there might be an exchange variation between the date of the claim and the date of the statement, but he was not satisfied that that was the explanation and he decided that it would be wrong to allow judgment to be entered for the larger sum until he was so satisfied. It is understandable that once he saw the statement of affairs he should have some doubts about the correctness of the claim, but the statement had not been before the Registrar and I do not think it was properly before the judge in this action. Even if it had been, I think, with resoect, that the proper course would have been to give leave to enter judgment for the lesser sum and to give leave to defend as to the balance. That is the alterrative order for which Mr. Zimmern now argues.

4. However, Mr. Zimmern's main contention is that on the evidence the learned judge was wrong to reverse the Registrar's order. The Plaintiff's affidavits appeared to verify the facts alleged in the Statement of Chaim. Only two affidavits were filed on behalf of the Defendant company. They were sworn by the solicitors acting for the company and they did two things: the first set up a plea of "not indebted", which has many times been held to be insufficient, and the second alleged the existence of a counterclaim. No indication was given whether the counterclaim would be for ten cents or ten million dollars, although, if justifiable, some at least of the items making up the counterclaim must have been capable of quantification by the Defendant company. The officers of the company have made no attempt to support the alleged defence or counterclaim from their personal knowledge and the manner in which they have conducted themselves in the course of these proceedings does not impress one with the probable justice of the company's cause. Had the statement of affairs not been before the judge, there is no reason to believe that he would have given leave to defend-conditional or otherwise. Mr. Goadbody has told us that he cannot seek to support the decision of the judge in chambers and in my view the Defendant company has failed to establish a triable issue.

5. I would allow the appeal and restore the order of Mr. Registrar Jones, with costs to the Appellant here and below.

19th March 1976.

Representation: