Overseas Trust Bank Ltd. v. Moral Tact Co. Ltd. and Others

Remarks: Appeal by 4th defendant to Court of Appeal. Appeal allowed. Please refer to Appeal Judgment of CACV003683/2001.

Case No.HCMP 1254/2000

Court

High Court CFI

Date23 Oct 2001

Judge—

Case Document

100%Judiciary

HCMP001254/2000

HCMP1254/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1254 OF 2000

-------------------------

	IN THE MATTER of the property known as (1) Offices Nos.8-10 on 7th Floor, Tower B, Mandarin Plaza (also known as New Mandarin Plaza), No.14 Science Museum Road, Kowloon ("the 1st Property") and (2) Workshops Nos.7, 8 and 9 on 13th Floor, Mega Trade Centre, 1-6 Mei Wan Street, Tsuen Wan, New Territories ("the 2nd Property") and (3) Flat No.C on 10th Floor, Block 5, Sea Crest Villa Phase 2, No.18 Castle Peak Road, Tsing Lung Tau, New Territories ("the 3rd Property").

	AND

	IN THE MATTER of the Mortgage in respect of the Property dated 22 March 1994 and registered in the Land Registry by Memorial No.5984846 ("the 1st Mortgage").

	AND

	IN THE MATTER of the Mortgage in respect of the Property dated 31 December 1994 and registered in the Tsuen Wan New Territories Land Registry by Memorial No.989951 ("the 2nd Mortgage").

	AND

	IN THE MATTER of the Mortgage in respect of the Property dated 30 August 1997 and registered in the Tsuen Wan New Territories Land Registry by Memorial No.1170406 ("the 3rd Mortgage").

	AND

	IN THE MATTER of a Letter of Guarantee dated 5 February 1994 given by NGAI YIM SHING, LAU WAI KAY and WONG SUI YING in favour of OVERSEAS TRUST BANK LIMITED.

	AND

	IN THE MATTER of Order 88 of the Rules of the High Court.

-------------------------

BETWEEN
	OVERSEAS TRUST BANK LIMITED	Plaintiff

	AND

	MORAL TACT COMPANY LIMITED	1st Defendant
	LAU WAI KAY	2nd Defendant
	NGAI YIM SHING	3rd Defendant
	WONG SUI YING	4th Defendant

-------------------------

Coram: Deputy High Court Judge Poon in Chambers

Date of Hearing: 23 October 2001

Date of Ruling: 23 October 2001

----------------

R U L I N G

----------------

1.This is an appeal by the defendants against the order of the master dated 8 June 2001 dismissing their application to set aside the default judgment entered against them on 13 October 2000.

2.The defendants were all absent at the hearing before me on 23 October 2001. By a letter dated 10 October 2001, the 1st defendant (also purportedly on behalf of the 3rd defendant) applied to Chung J for adjournment of the appeal until the end of January 2002 on the ground that the 3rd defendant had recently undergone a major heart surgery and on medical advice, he should not travel until the end of this year. On 11 October 2001 Chung J directed that unless the application was made by consent of all parties concerned, it should be made in accordance with the usual procedure, in particular, Order 32, rule 1, Rules of the High Court. No proper application pursuant to the direction had been taken out.

3.At the hearing before me, Mr Pang appearing for the plaintiff naturally opposed the application for adjournment by letter.

4.In my view, as a matter of procedure, the application for adjournment should be properly made by summons and supported by affidavit with medical evidence. Despite the direction of Chung J, that was not done. As a matter of substance, the reasons advanced in the letter were bare allegations without any medical evidence in support. In any event, there is no reason why the 1st and 4th defendants do not appear.

5.Accordingly, I refuse to adjourn. The defendants being absent, this appeal is dismissed for want of prosecution with costs, to be taxed if not agreed on an indemnity basis, pursuant to the relevant provisions in the mortgages and the guarantee.

	(J. Poon)
	Deputy High Court Judge

Representation:

M K.K. Pang, instructed by Messrs S.K. Wong & Lee, for the Plaintiff

The 1st Defendant in person, absent

The 2nd Defendant in person, absent

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Remarks:
Appeal by 4th defendant to Court of Appeal. Appeal allowed. Please refer to Appeal Judgment of CACV003683/2001.

Cited by 1 case

Other judgments that cite this case

Overseas Trust Bank Ltd. v. Moral Tact Co. Ltd. and Others

Court of Appeal31 Oct 2002