Go Fun Properties & Investment Ltd v. So Bik Har and Another
Read the full judgment text of CACV 71/1980 on BabelCite. This Court of Appeal judgment was delivered on 28 October 1980 before Roberts, C.J., McMullin & Li, JJ.A..
Civil procedure – garnishee order – triable issue – conflict of evidence – appeal – The Court of Appeal considered whether a garnishee order absolute could be made where there was a clear conflict of evidence as to the existence of the debt. The Registrar had made the order absolute despite four affidavits denying the debt, without calling for further evidence. The court held that this was dangerous and constituted a triable issue requiring fuller investigation. The appeal was allowed, the garnishee order absolute was quashed, and the issue of the debt's existence was directed to be tried by another Registrar. Leave was granted to proceed under section 186 of the Companies Ordinance, and both parties were given leave to file further affidavits within 21 days. Costs in the cause.
Legal issues: Garnishee order absolute without trial of triable issue
Outcome: Appeal allowed; garnishee order absolute quashed.
Cited by 2 cases
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CACV000071/1980
----------------- Coram: Roberts, C.J., McMullin & Li, JJ.A. Date of Judgment: 28 October 1980 ----------------- JUDGMENT ----------------- Roberts, C.J. : 1. This is an appeal against a decision of Mr. Registrar McClelland given on the 13th June of this year, in which he ordered that a garnishee order nisi dated the 23rd May should be made absolute. 2. The order nisi was made by the Registrar on the 26th May on the basis of an affidavit submitted by Mr. LEUNG Cheuk-bun, a law clerk in the Legal Aid Department. 3. Paregraph 8 of the affidavit stated that, to the best of Mr. Leung's information and belief, Go Fun Properties and Investments Limited (the Garnishee) were indebted to the judgment debtor in the sum of $100,000. He added that his information and belief were based on an examination of the books and documents of the judgment debtor which had been produced by one of its directors. 4. Between the 26th May and the 13th June, when the motion to make the garnishee order nisi absolute came before the Registrar, four affidavits were filed from Mr. Yao, Mr. Chow, Mr. Cheung and Mr. Ho. 5. The effect of these affidavits taken together, if believed, was that there was no outstanding debt owed by the garnishee to the judgment debtor, and that therefore no garnishee order could properly issue. 6. The Registrar did not record any reasons for his decision to make the order nisi absolute. The fact that he did so, however, must necessarily imply that he rejected the four affidavits which were put before him. 7. In our view, it was dangerous for him to do so, without, at the very least, calling for additional affidavits in reply from Mr. Leung. There was a clear conflict of evidence, constituting a triable issue which should have been investigated more fully before an order absolute was made. 8. We conclude that this appeal should be allowed and that the garnishee order absolute should be quashed. 9. We order that another Registrar should try the issue of whether or not any debt exists against which a garnishee order could properly be made and should make such orders as he may think fit in accordance with his findings. 10. To remove any doubt in the matter, we give leave to proceed under section 186 of the Companies Ordinance. We give leave to both parties to file further affidavits within 21 days. Costs in the cause. Representation: Thomas Lai (Vincent Lo & Co.) for appellant Edward Chan (D.L.A.) for 1st respondent N. Campbell (Official Receiver) for 2nd respondent |