Yeo Teo Bok v. Yeung Kai Pun

HCA014638/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Date: 8 February 1984

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DECISION

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1. On the 2nd December of last year the plaintiff, through an attorney, commenced proceedings against the defendant claiming the sum of US$139,000 as moneys had and received by the defendant to his use or alternatively as moneys due and owing upon an account or accounts stated.

2. On the 5th January of this year Power, J. granted an application made by the plaintiff ex parte inhibiting and restraining the defendant from withdrawing or otherwise dealing with moneys standing to the credit of his savings account no. 135 with the Nan Yeung Commercial Bank Ltd. pending the hearing of an inter partes summons. An inter partes summons dated the 6th January was issued. Its wording is obscure but it was treated by Clough. J. on the 13th January 1984 as being effective. On that date he adjourned consideration of the application to allow fresh evidence to be filed and continued the ex parte order that had been made by Power, J. meanwhile.

3. The matter came before me on the 31st January and an issue arose as to whether or not the defendant had other assets within the jurisdiction from which any judgment in due course obtained by the plaintiff might be satisfied. It was suggested but not confirmed that some concession had been made at an earlier stage. Unhappily, none of those who had been present at the earlier hearings were present before me. The absence of evidence or concession in this regard was a material factor contributing to my decision to dismiss that application.

4. Later on the same day the plaintiff issued the present summons seeking identical relief to that which had been sought unsuccessfully before me. The question whether the matter is res judicata and I am functus officio at once arises and Mr. Patrick Chan, who appeared before me on the 31st January and appears before me today, tells me that following the earlier hearing he received instructions that a concession had at an earlier stage been made to the effect that the defendant did not have any further assets within the jurisdiction.

5. Faced with this concession I have, I think, to consider whether it constitutes a special case or circumstance within the meaning of the judgment of Wigram V.C. in Henderson v. Henderson⁽¹⁾. What is and is not a special case or circumstance is not a matter to which, as far as I am presently aware, the attention of the courts has been directed. Accordingly I look to the general statement of the Vice-Chancellor which has subsequently been adopted by the Privy Council in Yat Tung Co. v. Dao Hang Bank⁽²⁾: by the Hong Kong Court of Appeal in Chan Pak Wai v. Young⁽³⁾ and by the House of Lords in Vervaeke v. Smith⁽⁴⁾. Wilgram V.C. said:

"The court requires the party to - litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertance or even accident omitted part of their case. The plea res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belong to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time."

6. In my view the plaintiff here might with reasonable diligence have communicated with the defendant by letter or otherwise to ensure that the concession earlier made before Clough, J. or Power, J. as the case may be acknowledged or have so deposed or at the time have invited the judge to record the concession in his order. I cannot think that albeit the circumstances are singularly unfortunate they are "special" or constitute a case which entitles me to re-open a decision earlier made on, admittedly, incomplete information. As Lord Hailsham L.C. said in Vervaeke v. Smith at page 157 "The rule in Henderson v. Henderson - is both a rule of public policy and an application of the law of res judicata."

7. In the premises I dismiss the present application. In so doing it may not be thought improper for me to indicate that it is open to the plaintiff, seeking to adduce fresh evidence, to appeal from my Order of the 31st January 1984 at the very earliest opportunity.

(1)    (1843) 3 Hare 100 at p 115; 67 English Reports 313 at p. 319

(2)    (1975) A.C. 581

(3)    (1982) C.A. 18

(4)    (1983) A.C. 145

Representation:

Anthony Ismail (John Ip & Co.) for applicant/plaintiff

Patrick Chan (Chan, Ng & Leung) for respondent/defendant