Hisha (HK) Co Ltr v. United Coach Services Co Ltd

HCA011664/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J. (In Chambers)

Date of Hearing: 11th January, 1984.

Date of Delivery of Judgment: 11th January, 1984.

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JUDGMENT

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1. The plaintiff has summary judgment in its favour against the defendant in the sum of $218,252.30. That judgment arises out of a debt owed by the plaintiff to the defendant for services carried out in the maintaining of the defendant's fleet of motor-cars. The defendant company applied to the Master on 21st December last year for a stay of execution pursuant to 0.47 r.1 and offered to pay the judgment debt by 18 equal instalments of $12,127.30. The Master did order a stay and payment of the judgment debt by instalments at that rate. I am now concerned with the plaintiff's appeal from the Master's decision and in the course of submissions, I have been referred to the affidavit together with the exhibits which were placed before the Master, which is the only evidence which has featured either on that occasion or in this appeal. It is transparent that the defendant company is in serious financial difficulties and is currently trading at a loss, although it is also plain that it expects matters to improve in the future. I have indicated the nature of the debt which gave rise the judgment and I remark in passing that on scrutiny of the exhibits, it does appear that another company is now carrying out the very necessary work formerly carried out by the plaintiff for which it is receiving some payment. The day before the matter in front of the Master, the plaintiff issued a winding-up petition which has subsequently been served. That was not made known to the Master. Of course, it is open to any creditor of the company or the company itself, after the presentation of a winding-up petition, to apply for a stay of proceedings against the company under section 181 of the Companies Ordinance. However, that has not been done so far. It seems to me that had the Master known that of the distinct possibility of this company being wound up, he might well have exercised his discretion differently. In any event, I think it will be only rarely that the provisions of 0.47 r.1 will be applied to limited company and in particular, a limited company which is, on the face of things, trading at a loss. I am conscious of the fact that I must not lightly interfere with the exercise of the Master's discretion even though I have been told that the matter was not fully argued before him and, perhaps, I would not have done so had I thought that the Master knew of the existence of the winding-up petition. But considering the matter afresh as I do and with that knowledge, I do not think it right that the plaintiff should be deprived of its opportunity of seeking execution of the judgment and I propose, therefore, to allow this appeal with costs to the appellant.

Representation:

Francis Eddis instructed by John Ku & Co. for Plaintiff/Appellant.

Peter Cheung instructed by W. L. Yuen & Co. for Defendant/Respondent.