Pt Bank Pembangunan Indonesia (Persero) v. Tan Eddy Tansil

HCA006260/1994

1994 No. A6260

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Mr Justice Findlay, in Court

Date of hearing: 25 August 1995

Date of handing down of judgment: 30 August 1995

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JUDGMENT

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1. The plaintiff is proceeding against the defendant, and other defendants, to recover an exceedingly large sum of money obtained, the plaintiff says, by fraud, as a constructive trustee and as money had and received.

2. On 10 May 1995, I lifted a temporary stay on a disclosure order against the defendant, ordering that he comply with it within 28 days. On 7 June 1995, on the defendant's application, the time limit was extended by 28 days. On 20 July 1995, it was ordered that, unless by 4 pm on 2 August 1995 the defendant complied with the disclosure order, the plaintiff would be at liberty to enter judgment against the defendant with costs. The defendant failed to comply with this order, and, on 2 August 1995, an application for a further extension was refused. The defendant is appealing against this refusal, but an application to the Court of Appeal for a stay of execution pending the appeal was refused. On 17 August 1995, the plaintiff took out a notice of motion praying that judgment be entered against the defendant.

3. Mr Chan did not waste his energies on seeking to argue that judgment should not be entered. In the light of the circumstances of this case, he was right not to do so. What he does argue is that the plaintiff's claim is for unliquidated damages, and judgment should be entered for damages to be assessed. He says that the assessment should not be made now because the defendant is not ready for this inquiry, particularly having regard to the fact that some of the evidence from the plaintiff as to damages was made available to the defendant very late in the day. I agree with him that, if the plaintiff's claim is indeed for unliquidated damages, it would not be right to proceed to an assessment of damages now. The defendant should have a reasonable opportunity to deal with the evidence advanced by the plaintiff, and he has not had that opportunity. But the problem for Mr Chan is that, although one of the plaintiff's claim is for damages, the plaintiff also claims under the headings of allegations that the defendant was a constructive trustee, that the money was paid to him under mistake of fact, and on the basis of money "had and received". These are not claims for unliquidated damages. Mr Chan was not able to argue against this with his usual effectiveness, but he said, without making any concession or admission, that the amount concerned here was not US$297.1 million, as contended by Miss Eu, but US$282.24 million. Miss Eu said that she could show that she was right, but when I asked her if the plaintiff had any hope at all of recovering anything like US$282 million from this defendant, she accepted, in essence, and with her usual good grace, that the figure was academic, and she was content to accept the lower figure. No injustice to the plaintiff is done here. If it should be that the plaintiff is able to recover in excess of US$282 million, this could be done by proving the additional amount under the heading of damages.

4. The plaintiff has submitted a draft order, and, with the amendments I am about to mention, it is entitled to the relief mentioned in it. Paragraph 3 of the draft order is to read: "It is adjudged that the 1st defendant do pay to the plaintiff the sum of US$282 million and such further sum, taking into account that sum of US$282 million, by way of damages to be assessed." Paragraph 4 is to read: "It is adjudged and declared that the 1st defendant is a constructive trustee of the sum of US$282 million, being the plaintiff's money, and/or the profits of or any assets or property that have been received in exchange for, or which was derived from, that money." The sums in paragraphs 5 and 6 are to read "US$282 million". Paragraph 7 of the draft order is to read: "It is adjudged that the 1st defendant do pay the plaintiff interest in a sum to be assessed."

Representation:

Miss Audrey Eu, QC, instructed by Messrs Allen & Overy, for the plaintiff.

Mr Warren Chan, QC, and Ms J Tsang, instructed by Messrs CW Yuen & Co, for the defendant.