Wide World Exports Ltd v. Henry Victor Ardy
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(1) A mandatory injunction ordering the Defendant, whether by himself, his servants or any of them, or otherwise howsoever to pay the nett proceeds of sale of his property at 23 East Avenue, Bournemouth, Hampshire, England or to cause the same to be paid in the Registry of Supreme Court, Hong Kong in the name of this action.
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HCA002835A/1971 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 2835 OF 1971 -----------------
----------------- Coram: Li, J. Date of Judgment: 5th March, 1974. Present: Mr. M.H. Jackson-Lipkin (Gordon Hampton & Winter) for plaintiff. Mr. A.J.J. Sanguinetti (Fairbairn & Kwok) for defendant. ----------------- JUDGMENT ----------------- Before me there are 3 motions which by consent are treated as applications. One is the Defendant's motion to discharge the order of interim injunction I granted on the 10th November last year. The other is an application on the part of the Plaintiff for an order of committal for contempt and an order of sequestration for failure to comply with the interim injunction I granted on the 10th November last year. The third is an application on the part of the Plaintiff to ask for an order of committal and an order of sequestration on the Defendant's breach of his undertaking to my Brother Pickering in August last year. I decided to hear the application for discharge of the order of interim injunction first. Therefore I direct that Mr. Sanguinetti, learned counsel for the Defendant, should procead with the application first. The facts concerning the order of interim injunction on the 10th November 1973 may be summarized as follows. On that day Mr. Munro, then solicitor for the Plaintiff, came to me with an application for an order of interim injunction on an ex parte summons. In this summons, he asked for: (1)A mandatory injunction ordering the Defendant, whether by himself, his servants or any of them, or otherwise howsoever to pay the nett proceeds of sale of his property at 23 East Avenue, Bournemouth, Hampshire, England or to cause the same to be paid in the Registry of Supreme Court, Hong Kong in the name of this action. (2)An injunction restraining the Defendant whether by himself, his servants or any of them, or otherwise howsoever from disposing the said nett proceeds of sale of 23 East Avenue, Bournemouth, aforesaid otherwise than in accordance with the terms of the mandatory injunction hereinbefore sought. (3)An order that the Defendant do account to the Registrar of the Supreme Court on oath diselesing the gross proceeds of such sale and the deductions made thereout to reach the amount of such nett proceeds together with all documents, receipts and vouchers in respect thereof. (4)Such consequential, further or other relief or orders as may be just, or necessary. (5)An order that the Defendant do pay the costs of and occasioned by this Summons. The proceedings in Chambers lasted for about 10 minutes. On reading the affidavit in support, and having heard solicitors for the Plaintiff, there was a prima facie case then that an interim order be made. So the terms of the order I made was order in terms of this summons, return date to be fixed by the clerk of the court. Unfortunately, when the formal order was drawn up, it gave the impression that paras. 1 and 2 of the summons in which the injunction was sought were separated and no return date was fixed for the hearing of this application inter partes. As far as the 3rd paragraph is concerned - the accounting to the Registrar - it was typed in the same paragraph with these words:
No date was fixed until this morning. The order was drawn as a formal order, sealed, and was served on the Defendant's solicitor on the same day, the 10th November. The Defendant himself was not served personally until some time in the latter part of November and again in the early part of December last year. Nothing was done until the Defendant, some time in December, applied to this court for discharge of the injunction on the ground that, inter alia, he was not able to comply with this injunction any more. The reason why he was not in a position to comply with this order was that on the 7th November 1973, unknown to the Plaintiff, unknown to this court, the completion for the sale of his house had taken place and the proceeds of sale had been paid to his wife whose whereabouts he does not know now. The grounds for this application in submission by counsel for the Plaintiff are various. Basically, first of all, it is that this injunction should be discharged or dissolved because it was void ab initio for a variety of reasons. Secondly, that at the time when the interim injunction was granted, the Defendant was in no way in a position to comply with the order of this court. As such, this order is unenforceable or, alternatively, it would be inequitable to enforce such an order upon the Defendant, and therefore, as a matter of practicability, this order should be discharged. In support of his first contention, he raised several points which are on technical grounds. The first objection is that no return date had been fixed for an inter partes hearing. Second objection is that the order does not set out a fixed time within which the Defendant is to comply with the order. Thirdly, no penal notice was attached to the order until the last time when the Defendant was served personally again in December last year and that the solicitor had every opportunity to apply for an inter partes summons but failed to do. Lastly, the solicitor for the Plaintiff had omitted to state that the Defendant had entered an appearance and he failed in his affidavit to indicate the time when injury was threatened to his client i.e. his client would be deprived of his fruit of judgment. A variety of textbooks, legal authorities were cited in support of his contention. Mr. Jackson-Lipkin, learned counsel for the Plaintiff, had replied equally with comments on the textbooks and foot-notes cited by Mr. Sanguinetti and at the last stage of the hearing, I informed Mr. Jackson-Lipkin that it would not be necessary for him to reply on those cases cited in the foot-notes of various textbooks because they would not make any difference to my decision. I say this because I do not intend to do the research that is necessary on these legal authorities to come to a decision. Had it been necessary for me to come to a decision in respect of this application to do a research on these legal authorities, I certainly would have invited Mr. Jackson-Lipkin and Mr. Sanguinetti to argue in detail on these points of law As it would not have affected my decision in any way, I do not intend to hold up the proceedings to give a long judgment and to rule on these points. It is sufficient for me to say, at this stage, that insofar as the order having no return date fixed, that matter is remediable. The fact that the Plaintiff has this morning taken out a Summons to have a return date fixed has complied with the formal order as drawn up. It is unfortunate, and I do not mince any words for it, that such was not in fact my original intention. When I made the order that a return date to be fixed by the clerk of the court, I had the intention that the Summons would be heard inter partes, giving the Defendant a chance to be heard before the interim order be made permanent or discharged. However, the order as drawn up will enable the Plaintiff to sit on it until this morning. While this is still the prevailing state of affairs the Defendant has liberty to apply to have the order discharged. That is neither here nor there. I do not wish to put any blame on any person. If there should be any blame, this court must share part of the responsibilities. The formal order certainly does not reflect the spirit of the order I made and when I say this court, I mean I myself. If, the practice is to allow the judge's clerk to approve a formal order by reference to the judge's notes the judge takes the responsibility. That has dealt with one of the points raised by Mr. Sanguinetti. As regards the penal notice, the statement whether the Defendant has entered an appearance commonsense tells that, despite the lack of a penal notice, it is obvious that the order of the court is to be obeyed. The application was made at such a stage that it was obvious that the Defendant had not only entered an appearance but had his case heard and judgment given against him. As to the point that the affidavit of Mr. Munro should have stated clearly whether there was any instant threat of injury to the Plaintiff's case, it is also obvious from paras. 8, 9, 10 and 11 of his affidavit dated the 9th November last year in support of his ex parte application that he noticed between the 30th October and the time of the application, that is the 10th November, such a threat existed. That should be sufficient to say that for me that the order then granted was not void ab initio. This leads me to consider the second point that this order was given at the time when compliance would be impossible. Before me was an exhibit referred to by Mr. Munro's affidavit sworn on the 26th November 1973 as exhibit "WPJM-5". This is a letter from Andrews McQueen & Co. from England and addressed to the Plaintiff's then solicitors, Messrs. Hastings & Co. It is not a very long letter, but I do not propose to read the whole of it except one paragraph in which it says:
Thus, the bulk of the proceeds of sale had already gone. The Defendant was not in a position to comply with the order of this court on the 10th November, and the solicitors in England had given his undertaking. In the circumstances if this order was strictly to apply irrespective and disregarding the Defendant's inability to comply the Defendant would have no answer. However, this is a court of equity in exercise of equitable jurisdiction. One principle, as I understand it in equity, is that the court will not enforce something which is impossible. This is the principle that is laid down for orders of specific performance and I consider this is a principle which is equally applicable in the form of a mandatory order in which, when the order was granted, there was no possibility of complying with that order. Mr. Jackson-Lipkin urged me to differentiate between discharging the order and considering whether I should enforce the order. Refusing to discharge the order mean leaving it pending if I also decline to enforce that order. Had I been asked to enforce that order at this stage having now the knowledge of facts retrospectively as it stood on the 10th November, I would not have enforced it. Indeed, had it been known to the Plaintiff on the 10th November that the proceeds of sale had already gone, probably the Plaintiff would not have bothered to apply for this order of interim injunction. Nor would I have granted it as a matter of practicability. In the circumstances, I come to the conclusion that I will discharge the injunction - interim injunction granted on the 10th November. Perhaps I should add one more word about the evidence. Mr. Jackson-Lipkin has argued with great skill and strength to say that the Defendant is not a reliable witness. Even on the affidavits shown and he has shown me a variety of contradictions in those affidavits. But the letter I referred to is one from a solicitor from England. It is exhibited in an exhibit in the Plaintiff's solicitor's affidavits. I have no doubt that the proceeds of sale had left the hand of the English solicitors. For this reason, I accept the affidavit and exhibits on their face value as such when I come to this conclusion. This, of course, does not prejudice the Plaintiff's application which is due to be heard immediately after this case and that is the application for an order of committal and order of sequestration on each of the undertaking before my Brother Pickering. (Counsel's submissions not recorded).
(Further submission not recorded).
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