Kwan Yam-tong v. Lee Yik-chung Frank

Case No.CACV 69/1977

Court

Court of Appeal

Date24 Nov 1976

Judge—

Case Document

100%Judiciary

CACV000069/1977

IN THE COURT OF APPEAL
on appeal from Action No. 2849 of 1977

	1977 No. 69
	(Civil)

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BETWEEN
	KWAN YAM-TONG alias KENNETH KWAN	Appellant
	and
	LEE YIK-CHUNG, FRANK	Respondent

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 9th May, 1978.

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JUDGMENT

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Pickering, J.A.:

1. In this action 0.14 proceedings resulted in the following Order:-

	(1)	The partnership firm of Campboro Trading Company between the Plaintiff and the Defendant constituted by the Partnership Agreement dated the 24th day of November 1976 has been dissolved as from the 29th day of September 1977.
	(2)	That the affairs of the said partnership be wound up.
	(3)	An account of all dealings and transactions between the Plaintiff and the Defendant as co-partners from the 24th day of November 1976 be taken and an inquiry of what credits property and effects now belonging to the said partnership consist be made.
	(4)	That a proper person be appointed to collect get in and receive the debts now due and accruing and other assets property and effects belonging to the said partnership.
	(5)	An injunction is hereby granted to restrain the Defendant, whether by himself or by his agents or servants or otherwise howsoever from further operating the bank account with the Banque Nationale de Paris or any bank in the Colony of Hong Kong, in the name of Campboro Trading Company.
	(6)	An injunction is hereby granted to restrain the Defendant, whether by himself or by his agents or servants or otherwise howsoever from further dealing with the partnership assets.
	(7)	The sum of $260,347.20 under paragraph 12 of Statement of Claim herein be paid to the Plaintiff by the Defendant.
	(8)	The sum of $155,723.48 and $10,356.00 under paragraph 14 of Statement of Claim herein be paid to the Plaintiff by the Defendant.
	(9)	Costs of this action be paid by the Defendant to the Plaintiff.

2. The history of the Campboro Trading Company in which the Plaintiff and the Defendant had been partners had been an unhappy one and it is apparent that the partnership could never successfully be revived because the foundation of trust and goodwill necessary between partners has been completely eroded between the Plaintiff and the Defendant. It was thus that we declined upon this appeal to interfere with paragraphs 1 to 6 of the Order.

3. In regard to the liquidated sums referred to in paragraphs 7 and 8 this Court was placed in possession of considerably more material than had been put before the learned judge in the Court below; this material was contained in a further affidavit of the Appellant and counsel for the Respondent raised no objection to the introduction of this fresh evidence which, the matter being interlocutory and not final, we considered that we had power to receive by virtue of 0.59 r.10(2).

4. It was for this reason and not on account of any defect in the conclusion reached by the learned judge upon the material before him that we granted conditional leave to defend in respect of the liquidated sums. Inasmuch however as we did not grant leave to appeal in respect of the matters contained in paragraphs 1 to 6 of the Order set out above and since the fresh evidence contained in the affidavit could have been available in the Court below, we ordered that the costs of the proceedings before us should be paid by the Respondent in any event. The Appellant being legally aided, his costs are to be taxed under the Legal Aid Regulations.

Representation:

K.H. Woo (Tsang & Chau) for appellant.

R. Tong (W.S. Lo & Co.) for respondent.