Walter Hume v. Otto Tsung Sung Wu and Another

Case No.HCA 622/1968

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000622/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 622 OF 1968

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BETWEEN
	Walter Hume, the Official Receiver and Trustee of the property of Wu Hsi Sheng deceased a bankrupt	Plaintiff
	and
	Otto Tsung Sung Wu	1st Defendant
	Shanghai Commercial Bank Ltd.	2nd Defendants

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 15th day of October, 1971.

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DECISION

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1. This is an application by the plaintiff for leave to serve interrogatories upon the 2nd defendant.

2. The facts of the case arise as a result of the sale and purchase of a property known as 'Hilltop' and mortgage and loan facilities relative thereto during the period 1963-1966. The plaintiff has instituted these proceedings as the Official Receiver and Trustee of the property of Wu Hsi Sheng, deceased, a bankrupt. The plaintiff inter alia claims against the 2nd defendant that transactions entered into by the bankrupt are void as against the plaintiff or alternatively voidable at his option.

3. The statement of defence of the 2nd defendant claims that the mortgages referred to in the statement of claim were executed by them for valuable consideration bona fide and without notice of the presentation of a bankruptcy petition and without notice of any available act of the bankruptcy by either the bankrupt or the 1st defendant.

4. Order 26 rules 1(1), (3) and (4) of the Rules of the Supreme Court 1967 which follow the English rules provide:-

1(1) A party to any cause or matter may apply to the Court for an order -

	(a)	giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter, and
	(b)	requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.

	(3) On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause of matter or for saving costs; and in deciding whether to give leave the Court shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.
	(4) A proposed interrogatory which does not relate to such matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.

5. The interrogatories are set out in eight paragraphs and request answers upon the following matters:-

	A.	Dealings by the 2nd defendant with the bankrupt.
	B.	Dealings by the 2nd defendant with the 1st defendant.
	C.	Dealings by the 2nd defendant with Overseas Enterprises, a firm operated by the bankrupt.
	D.	and E. which relate to banking facilities and letters of credit sought by the bankrupt from the 2nd defendant.
	F.	To discussions, negotiations and correspondence between the 2nd defendant and the bankrupt or 1st defendant.
	G.	To dealings by the 2nd defendant with three companies not referred to in the pleadings.
	H.	To the equitable charge and certificate of satisfaction.

6. Counsel for the 2nd defendant opened his argument by commenting that the plaitiff was not in a position to proceed against the 2nd defendant on the ground that the proceedings against them are misconceived. However, a statement of defence has been filed and no steps have at any time been taken for the action to be struck out. Accordingly I do not consider that there is any merit in this observation.

7. With regard to the grounds for objection upon the merits of the application Counsel confined his argument to two issues viz. that the real contest is between the Plaintiff as Official Receiver and the 1st defendant and that there can be no interrogation of the 2nd defendant upon those matters that are between the plaintiff and the 1st defendant. He therefore contended that the plaintiff should interrogate the 1st defendant but in fact no attempt has been made to do so. The second issue relied upon is that 80% of the interrogatories relate to documents and it was argued that this issue should be dealt with upon discovery and not upon interrogatories. Mr. Zimmern for the 2nd defendant cited 26/1/11 in the White Book which provides that interrogatories as to the contents of existing documents will not as a rule be allowed. With regard to the contents of paragraph D Mr. Zimmern contended that they amount to fishing interrogatories i.e. interrogatories which do not relate to any matter in question in the cause or matter, whilst paragraph F is not relevant and too wide with the result that these questions cannot be answered.

8. Mr. Mills-Owens for the plaintiff said that the plaintiff's object in applying for leave was to try to obtain knowledge from the 2nd defendant to show whether in the transaction he acted with or without knowledge as a bona fide purchaser for value without notice. He further contended that with regard to Mr. Zimmern's allegation that the interrogatories relate to documents that no offer has been made by the 2nd defendant at any time to deliver the particulars requested.

9. Mr. Mills-Owens cited various authorities including:-

10. In Marriott v. Chamberlain 1886 QBD Vol. 17 page 154 at page 163 Lord Esher said:

It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue'.

11. In Plymouth Mutual Co-operative and Industrial Society, Limited v. Traders' Publishing Association, Limited 1906 1 KBD, page 403 at page 416 Stirling, L.J. said:

Interrogatories by one party are therefore generally admissible if they are directed to matters which would tend to destroy the other party's case; as, for instance, it is contended in the present case these interrogatories would do by shewing that the comments made by the defendants were not made in good faith and without malice.'

12. The function of interrogatories was stated by Cotton L.J. in Attorney-General v. Gaskill 20 Ch. D. 519, 528 where, after referring to the order of the Supreme Court which relates to the matter and dealing with r. 2, he said:

The right to discovery remains the same, that is to say, a party has a right to interrogate with a view to obtaining an admission from his opponent of everything which is material and relevant to the issue raised on the pleadings'.

13. I am of the opinion that the interrogatories set out in paragraphs A, B, C, D, E, F and H relate to matters in question between the plaintiff and the 2nd defendant and are relevant. I do not consider that the interrogatories in paragraph D are fishing nor do I consider that paragraph F is too wide with the result that the 2nd defendant is in a position to answer the interrogatories raised. Accordingly leave will be given to the plaintiff to serve these interrogatories and there will be an order for the 2nd defendant to answer them upon oath within 14 days.

14. Paragraph G relates to accounts with three companies that are not referred to in the pleadings. Mr. Mills-Owens asked me to refer to the evidence of Mr. Sanders of the Registrar General's Department that was taken de bene esse by Briggs, J. on the 4th March 1969 but Mr. Zimmern objected to my so doing, and I upheld his objection on the basis that this evidence will not come before the court until the trial. Although the evidence of Mr. Sanders may well show that there is some relevance to the questions raised nevertheless upon the evidence at present before me I am unable to accept that it refers to matters in issue between the plaintiff and the 2nd defendant. Accordingly leave is refused to serve the interrogatories set out in Paragraph G.

15. The costs of and incidental to this application will be costs in the cause.

16. There will be a certificate for counsel.

17. Dated this the 15th day of October, 1971.

	(B.L. Jones)
	Assistant Registrar

Representation: