Mandarin Resources Corporation Ltd v. Grand China Ltd

CACV000078/1989

BETWEEN

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Coram: Cons, V.P., Clough & Penlington, JJ.A.

Date of delivery of judgment: 5 December 1989

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. These are applications to adduce fresh evidence during the course of an appeal. The context will be well known to everybody in Court and need not be recited.

2. We are asked to accept three Affirmations from Ronald Ng Wai Choi, to which are exhibited a great number of documents, and one Affidavit from Camille Jojo, a partner in the firm of solicitors now acting for the Defendant.

3. It is conceded that the evidence sought be adduced may not necessarily pass the test laid down in Ladd v. Marshall [1954] 1 W.L.R. 1489, for most, if not all, of the documents relied upon were, at the time of the hearing below, available to the Defendant through its own files or those of its subsidiaries, or available to Ronald Ng through GCRL, the Defendant's parent company, of which he is the controlling director. But be emphasizes:

"It is only when such document's are considered in the light of the further documents which have been found since the hearing before The Hon. Mr. Justice Godfrey that their relevance to the issues in contention becomes apparent."

4. We appreciate the point he makes there out have to observe that no request to adjourn for general research was made to the judge below, that the Statement of Claim had been served some six months earlier, that the idea of fraud had occurred to the Defendant at least not later than one month thereafter and that the Defendant's own Writ based on the same transactions, but in another action, had been issued for over two months. These are matters which we cannot exclude from our consideration.

5. To assist in overcoming the difficulties created by Ladd v. Marshall, or perhaps to bypass that test altogether, Mr. Thomas, who now appears for the Defendant, relies upon the elements of surprise and wilful deception of the Court. Both are, in his submission, sufficient to justify the introduction of fresh evidence at this stage, and he refers, inter alia, to Meek v. Fleming [1961] 2 Q.B. 366 and Bigsby v. Dickinson (1876) 4 Ch.D. 24.

6. The element of surprise is said to be constituted by the introduction at a very late stage in the proceedings, below of the Chulan Agreement. We understand that there would be dispute as to the circumstances in which this occurred. Be that as it may, it is clear that in any event the judge used that Agreement only to reinforce the allegation of Malcolm Stone that Ronald Ng was fully aware and approved of the loan agreement. So the surprise point and the evidence sought to be introduced by the first and third Affirmations of Ronald Ng come down in reality to no more than another instance in which Malcolm Stone is said deliberately to have misled the Court, that is the second limb of Mr. Thomas approach. Four further such instances are set out in Ronald Ng's second Affirmation and are taken from Malcolm Stone's Affidavit of the 26th April, upon which the judge would seem to have placed considerable reliance, as he quoted it almost in its entirety.

7. We have been taken through the Affirmations, and in considerable detail and with the assistance of extensive comment through the documents annexed. No doubt the documents will provide interesting material for cross-examination at the trial, should the Defendant succeed overall in this appeal. But we are not sure they in themselves take matters significantly further than matters stood before Godfrey, J., and, be that as it may, we are satisfied that without cross-examination of at least both Malcolm Stone and Ronald Ng neither this Court nor any other tribunal could possibly form a firm or fair conclusion on the question of whether Malcolm Stone had, or had not, in these particular instances deliberately misled the court below.

8. In all these circumstances we are not prepared to allow the further evidence at this stage and the applications to that end are refused.

Representation:

Michael Thomas, Q.C. & Allen Yau (M/s Alsop Wilkinson Driver) for Defendant/Appellant

Neil Kaplan, Q.C. & B. Barlow (M/s Hampton, Winter & Glynn) for Plaintiff/Respondent