In Re Malcolm Maydwell

HCSD000013/1998

HCSD 5 and 13/98
and HCB 964/98

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H E A D N O T E

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Application to set aside statutory demand - whether res judicata applies to prevent fresh proceedings founded on the judgment debt

Statutory demand based on a judgment or order - where the court will go behind the judgment or order and enquire into the validity of the debt - whether English practice set out in Practice Note (Bankruptcy : Statutory Demand : Setting Aside)(No.1 of 87) para.3 [1987] 1 WLR 119 to be followed

Section 6C of the Bankruptcy Ordinance - "before the end of the three-week period there mentioned" - how construed - whether an expedited petition may be presented so long as there is outstanding any application to set aside the statutory demand

HCSD 5/98 and 13/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATIONS TO SET ASIDE

STATUTORY DEMANDS NOS. 5 AND 13 OF 1998

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AND

HCB 964/98

BANKRUPTCY PROCEEDINGS NO.964 OF 1998

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Coram : The Hon Mrs Justice Le Pichon in Chambers and in Court

Dates of Hearing : 22, 23 and 24 December 1998

Date of Handing Down of Judgment : 15 January 1999

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J U D G M E N T

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Introduction

1. These are applications by Malcolm Basil Maydwell ("Mr Maydwell") to set aside three statutory demands described below as well as a bankruptcy petition presented against him on 15 September 1998. At the conclusion of the hearing in chambers on 24 December 1998, judgment was reserved and pursuant to directions given on 26 October 1998, I proceeded to hear the expedited Petition filed under section 6C of the Bankruptcy Ordinance in court.

2. Two of the three statutory demands sought to be set aside were dated 13 July 1998 in respect of the sum of $85,286.07 and $4,079,704.15 (respectively the First Demand and the Second Demand) and the third statutory demand was dated 28 October 1998 in the sum of $273,707.73 (the Third Demand). The First and Third Demands are in respect of costs orders and the Second Demand is in respect of a registered judgment. The Demands were served by and on behalf of the creditor, WFM Motors Pty Limited ("WFM").

3. Directions were given by the Chief Judge on 21 September 1998 for Mr Maydwell's application to set aside the statutory demands. Given the complex history to the many rounds of proceedings not only in Hong Kong but also in New South Wales, Australia and the voluminous documents filed in previous proceedings, inter alia, Mr Maydwell was directed to file his affidavit on or before 21 October 1998 and the parties were further directed to inform each other and the court 10 days in advance of the hearing as to what documents in previous proceedings they intended to rely on and to serve on each other and the court bundles for use at the hearing five working days in advance. Regrettably, Mr Maydwell did not comply with those directions.

4. Despite complaints by Mr Maydwell about the delay (of three months) in the matter coming before the court, it became very apparent that Mr Maydwell's preparation for the hearing left something to be desired notwithstanding the fact that it was his application and he has had ample time to prepare his case.

5. The hearing of Mr Maydwell's application to set aside the statutory demands took in excess of two days. It would have been of assistance to the court had Mr Maydwell filed an affidavit as directed, fully stating his grounds for setting aside the statutory demands and exhibiting thereto the core documents relied on. What Mr Maydwell did file on 8 December 1998, seven weeks out of time, was a formal affidavit exhibiting over 50 pages of documents with no explanation as to their relevance or how they relate to his grounds for setting aside the statutory demands. Not only were Mr Maydwell's submissions difficult to follow, those submissions, unrealistically, assumed a familiarity with the seemingly unending series of court hearings not only in Hong Kong but also in other jurisdictions over the past 5 1/2 years, let alone the events and evidence leading up to a Deed of Guarantee dated 20 July 1992 ("the Guarantee") given by Mr Maydwell to WFM in respect of the liabilities of Skink Limited, the fons et origo of the litigation saga that ensued between WFM and Mr Maydwell.

6. In order to better understand the litigation and the issues arising, it is necessary to set out the trading relationship between the parties as well as the history of proceedings both in New South Wales and in Hong Kong. I do so below and gratefully adopt the succinct summaries to be found in the judgments of the Privy Council and of Einstein J respectively.

The trading relationship between the parties

7. As noted above, the Guarantee given by Mr Maydwell lies at the heart of the litigation. The trading relationship between the parties which led to the Guarantee being given is set out in the judgment of the Privy Council in Maydwell v. WFM Motors Pty Ltd [1997] HKLRD 739 at 740G - 741F :

" The trading relationship between the parties is complicated and in some respects unusual. Their Lordships will not attempt to give a full account of the position but will confine themselves to those aspects of the evidence directly relevant to the issue to be determined.

WFM, an Australian company, had a wholly-owned subsidiary now called Australian Telephone Distributors (Pty) Ltd (ATD). ATD was the Australian distributor of telephones manufactured by Skink, a Hong Kong company owned and controlled by Mr Maydwell. The trade between Skink and ATD was regulated by a series of distribution agreements made between them. The actual purchase orders for telephones to be distributed by ATD took a number of forms. In early years the orders were placed with Skink by WFM on behalf of ATD. Later, the orders were placed by ATD on behalf of WFM. From June 1991 the orders were placed by ATD, no reference being made in the order documents to WFM.

The explanation for this trading pattern lies in the fact that ATD's trade in telephones purchased from Skink was wholly financed by WFM. Goods supplied by Skink to ATD were paid for by letters of credit. On some occasions the letters of credit were issued by the bank on the application of ATD, on others on the application of WFM. But whichever of the two companies was the applicant for a particular letter of credit, the issuing bank was always put in funds by WFM and not by ATD. WFM was financing the purchases. WFM provided security by way of floating charge to the issuing banks. In addition, until 22 April 1992, the issuing bank required that the property in the goods being purchased should be vested in WFM until ATD sold the goods to retailers, at which time the property was to pass to ATD and through ATD to the retailers. Due to a change in its capital requirements, WFM sought additional finance from a different banker who required a different system, viz that ATD should be the purchasers of the goods on its own account so as to be the owner of the goods purchased until the bank received full reimbursement by WFM of the monies drawn down by Skink under the letter of credit provided for the particular purchase. Once the bank was put in funds by WFM in relation to the given letter of credit, the property in the relevant goods purchased passed to WFM who retained title in those goods until they were sold on by ATD to retailers.

In 1991 and 1992 a very unconventional system was developed as between Mr Maydwell on behalf of Skink and Mr Jackson on behalf of ATD. Skink was permitted to draw down on letters of credit sums greatly in excess of the value of the goods supplied under the relevant orders. In consequence Skink became indebted either to ATD or to WFM for the sum so overdrawn. This excess draw down system was apparently unknown to WFM which under the financing arrangements had in fact provided the monies so drawn. When WFM learned of the overdrawings on the letters of credit, it insisted that the overdrawings by Skink should be repaid. Negotiations to that end led to an agreement, the exact terms of which are in doubt. However they contained the following elements:

1. Mr Maydwell would guarantee the repayment of the sums overdrawn (approximately HK$8.6 million) up to a limit of HK$3.5 million.

2. Skink would charge certain of its assets as security for such repayment.

3. The indebtedness of Skink would be repaid at least in part by ATD placing orders with Skink for further supplies of telephones and, under the letters of credit provided by way of payment, Skink would draw down only 50 per cent of their face value (the 'two for one' arrangement).

Mr Maydwell originally offered to enter into the guarantee with ATD. This offer was subsequently amended so as to offer the guarantee to WFM and/or ATD. The central factor in this case is that the guarantee entered into by Mr Maydwell on 20 July was made with WFM and not ATD. It guaranteed to pay to WFM 'all monies ... owing by [Skink] to WFM' up to a limit of HK$3.5 million. The guarantee was expressed to be given 'in consideration of WFM granting and continuing to grant credit or other financial accommodation to' Skink. Clause 2.04 of the guarantee provided that 'a certificate of balance signed by any director of WFM shall be conclusive evidence against [Mr Maydwell] of the amount of' the monies due from Skink to WFM."

Summary of proceedings in New South Wales and Hong Kong

8. Mr Beresford for WFM helpfully produced a chart (prepared for other proceedings) which summarizes the litigation history up until March 1998. This chart with some very minor amendments and updated as regards the New South Wales proceedings only is attached as an Appendix to this judgment.

9. A concise description of these proceedings (set out in WFM's case before the Privy Council) appears in the judgment of Einstein J of 26 February 1998 (at pp.6-9), dismissing Mr Maydwell's second application for an extension of time to appeal from the decision of Master McLaughlin which granted WFM's application for summary judgment :

"The New South Wales proceedings

12. On Mr Maydwell's failure to pay, WFM began proceedings in New South Wales on 2nd April 1993.

13. Mr Maydwell challenged the jurisdiction of the New South Wales Court. On 23 April 1993, Bryson J in the Equity Division of the Court rejected that challenge on the ground that New South Wales was one of the places where the contract of guarantee fell to be performed, and that no sufficient case had been made out for saying that the relatively simple issues on the guarantee would be more appropriately tried in Hong Kong. There was no appeal. [Record, Part II, pages 304-24].

14. Mr Maydwell then proceeded to contest WFM's claim on the merits. On 22nd June 1993, he filed a defence, verified by affidavit. His points (in summary) were : (i) that the relevant contracts had been made with ATD, and the only debt of Skink was owed to them, not to WFM; (ii) that the guarantee was void on the grounds that Mr Maydwell had been induced to enter into in by a 'representation' that WFM would procure ATD to buy 61,000 telephones from Skink during 1992. [Record, Part II, pages 333-9. The latter point is made at paras 5(o)-(r).]

15. WFM applied for summary judgment on its claim and, on 9th September 1993, Mr Aitken swore two affidavits in support of that application. He also executed a certificate (exhibited to the second affidavit) as to the balance claimed by WFM from Mr Maydwell. Clause 2.04 of the guarantee provided that a certificate signed by a director of WFM should be conclusive evidence against Mr Maydwell of the amount owing.

16. Under New South Wales procedure, it was open to WFM to require Mr Maydwell to attend for cross-examination at the hearing of their application for summary judgment. Mr Maydwell was required to attend for this purpose. But he was advised by his solicitors that he need not do so because insufficient notice had been given. [Record, Part II, page 369]

Accordingly, when the application for summary judgment came before Master McLaughlin on 22 October 1992, Mr Maydwell was represented by Counsel and solicitors, but he himself was not present. The Master refused to admit Mr Maydwell's affidavit because he had not attended for cross-examination of it. [Record, Part II, page 381] But he received Mr Maydwell's Defence and heard argument upon it. No application was made on his behalf for an adjournment.

17. At the hearing Mr Aitken was cross-examined on behalf of Mr Maydwell about the 'representation' alleged in the pleadings that at least 61,000 telephones would be ordered by the end of 1992. Mr Aitken's answer (in summary) was that there had been a number of conversations between Mr Maydwell and directors of ATD (including himself); that WFM had said that they would try to assist in getting more orders placed with Skink; but they had not bound themselves to procure sales and he personally had no recollection of a figure of 61,000 units. [Record, Part II, pages 384-5]

18. Master McLaughlin gave judgment against Mr Maydwell. His reason was that by Clause 2.04 of the guarantee the certificate was conclusive. In consequence, he regarded all the defences pleaded by Mr Maydwell as irrelevant. [The Judgment is at Record, Part II, pages 370-8]

19. Mr Maydwell did not appeal from this judgment within the stipulated period.

20. The judgment was partially satisfied by execution in New South Wales against a property there which had been caught by the Mareva injunction which WFM had obtained against Mr Maydwell. Mr Maydwell took no steps to oppose execution.

21. After the assets available in New South Wales had been exhausted, WFM obtained an order registering the New South Wales judgment in Hong Kong, on 8th June 1994. [Record, Part I, pages 5-6]

22. On 4 July 1994, Mr Maydwell responded by filing in New South Wales a Notice of Appeal against the judgment of Master McLaughlin and a Notice of Motion for leave to appeal out of time. [Record, Part II, pages 461-3] The affidavit in support relied on the alleged agreement in July 1992 for the purchase of minimum quantities of telephones. Mr Maydwell alleged that this agreement had been made in a series of telephone conversations with Mr Jackson or Mr Aitken and that its substance was that at least 61,000 units would be ordered by June 1993 (and not, as he had pleaded, by the end of 1992). [Record, Part II, pages 421-60, esp. at page 456]

23. Having made his application in New South Wales, Mr Maydwell then applied on 12th July 1994 in Hong Kong to set aside the registration of the judgment in Hong Kong on the ground that an appeal was pending against the judgment of McLaughlin J. [Record, Part I, pages 11-2]

24. On 27th July 1994 Mr Maydwell swore a further affidavit in New South Wales purporting to explain the delay in bringing his appeal. He said that it was due to his involvement with other litigation in Hong Kong, Skink and its liquidation and his new endeavours in business. [Record, Part II, pages 475-8]

25. On 16th August 1994 Windeyer J refused to extend time, after a two day hearing in which Mr Maydwell appeared and was examined at length. He was not satisfied with Mr Maydwell's explanation of the delay and considered that the appeal was hopeless because the certificate was conclusive. [Record, Part II, pages 481-7] Mr Maydwell appealed against this refusal to the New South Wales Court of Appeal. They agreed with both of Windeyer J's reasons and dismissed the appeal on 26th September 1994. [Record, Part II, pages 502-4]

The Hong Kong proceedings

26. Mr Maydwell's Hong Kong solicitors had based his application in Hong Kong to set aside the registration order solely upon the ground that an appeal was pending in New South Wales against the substantive order. Mr Maydwell's three affidavits in support of the application relied on no other ground. [Record, Part I, pages 11-15, 31-2, 38-40] Accordingly, the refusal of Windeyer J on 16th August 1994 in New South Wales of leave to Mr Maydwell to appeal against the substantive order out of time removed the sole basis for the application in Hong Kong. On 17th October 1994, Master Britton dismissed Mr Maydwell's application on that ground. [Record, Part I, page 43]

27. On 12th December 1994, WFM filed a Bankruptcy Notice based on the registered judgment. On 21st December 1994, Mr Maydwell made an application ('the Bankruptcy Summons') to set aside the Bankruptcy Notice.

28. On 22nd December 1994, Mr Maydwell responded by making a second application in Hong Kong to set aside the registration of the New South Wales judgment. This time he relied on the following grounds :

(1) The evidence of WFM did not state the amount in respect of which the New South Wales judgment remained unsatisfied.

(2) The Supreme Court of New South Wales had no jurisdiction.

(3) The New South Wales judgment was obtained by the fraud of WFM and/or its duly appointed representative.

(4) The enforcement of the judgment would be contrary to public policy in Hong Kong.

(5) The judgment was given in breach of the rules of natural justice.

This was the first time that any of these objections had been raised.

29. The allegation that the judgment was obtained by fraud was supported by Mr Maydwell's fourth affidavit, sworn on 22nd December 1994. He alleged that Mr Aitken had (i) knowingly produced a false certificate as to the amount of the debt, and (ii) lied in his cross-examination when he denied the agreement to order minimum quantities of goods. His explanation of his failure to raise this point earlier was that while he had known that there were other grounds for the application, his Hong Kong solicitors had advised him that the pending appeal in New South Wales was sufficient on its own. [Record, Part I, pages 48-70] Even if this explanation had been relevant and believable, it did not of course explain why Mr Maydwell had not made his allegation of fraud long before, for example in his various applications for leave to appeal there."

The Second Demand

10. I will first deal with the application to set aside the Second Demand. Mr Maydwell relies on three grounds, namely :

(i) Res judicata;

(ii) that there is a substantial dispute as to the debt;

(iii) that there is a set-off or cross-demand that exceeds the judgment.

Res judicata

11. As noted above, Mr Maydwell guaranteed Skink's liabilities under the Guarantee. Skink was wound up in January 1993 and on 2 April 1993, WFM sued on the Guarantee in New South Wales and obtained judgment on 22 October 1993. On 8 June 1994, an order was made for the registration of the New South Wales judgment in Hong Kong. Mr Maydwell applied by summons (the first setting aside summons) to set aside the order for registration on the sole ground that proceedings were pending in New South Wales. After the summons was dismissed, WFM issued a bankruptcy notice on 9 December 1994. Mr Maydwell applied by summons to set aside the bankruptcy notice. This came before Mr Registrar Betts on 12 April 1995 who set aside the bankruptcy notice. It is Mr Maydwell's case that in setting aside the bankruptcy notice, Mr Registrar Betts was satisfied that Mr Maydwell had "a counterclaim, set-off or cross-demand which equals or exceeds the amount of the judgment debt" under section 3(1)(g) of the Bankruptcy Ordinance which was then in force. Mr Maydwell submitted that there has been no change in the circumstances since the decision of Mr Registrar Betts and as WFM is effectively asking this court to decide the same point again, the doctrine of res judicata applies.

12. Mr Beresford for WFM submitted that what the Registrar did was to give Mr Maydwell the opportunity to make his counterclaim. Mr Maydwell obtained leave to serve the counterclaim action out of Hong Kong in May 1995 and issued the writ in December 1995. But on 29 August 1996, Mr Maydwell discontinued the counterclaim action. So, far from there having been no change in the circumstances, the reality is that Mr Maydwell did bring his counterclaim but decided not to pursue it by filing a notice of discontinuance in the counterclaim action.

13. It will be recalled that the sole ground relied on in the earlier (i.e. first) setting aside summons was that proceedings were pending in New South Wales. It is to be noted that the day after Mr Maydwell applied to set aside the bankruptcy notice, he took out a summons (the second setting aside summons) to set aside the registration of the New South Wales judgment on a number of other grounds including fraud. This matter was litigated all the way to the Privy Council which upheld the order for registration. As to the allegation of fraud, the Privy Council had this to say ([1997] HKLRD at 742 E-F) :

"...Not until Mr Maydwell's application to appeal out of time in New South Wales was dismissed did Mr Maydwell for the first time raise the allegation of fraud.

Their Lordships can see no trace of any fraud by WFM in this case. There is every indication of an attempt by Mr Maydwell to avoid paying his just debts. The allegation of fraud, being groundless, should never have been made...."

14. It is clear that the circumstances now prevailing are wholly different from those before the Registrar when he set aside the bankruptcy notice three and a half years ago. On the facts, there is simply no scope for the application of the principle of res judicata.

15. Further, Re Vitoria [1894] 2 QB 387 is authority for the proposition that the refusal to make a receiving order does not operate as res judicata so as to prevent fresh proceedings founded on the judgment debt. See also Williams and Muir Hunter on Bankruptcy, 19th Ed.,58.

Substantial dispute as to the debt

16. As I understand it, Mr Maydwell's case is that he is in a position to dispute the judgment debt because of a large amount of 'new' evidence uncovered after the judgment was obtained by WFM in October 1993. Mr Maydwell referred the court to the 'new' evidence and made extensive submissions in writing to that end. Nevertheless Mr Maydwell did concede that where there is a judgment, the court should not at the stage of the statutory demand, go behind the judgment.

17. In England, there is a practice note to the following effect :

" 3. Where the statutory demand is based on a judgment or order, the court will not at this stage go behind the judgment or order and inquire into the validity of the debt nor, as a general rule, will it adjourn the application to await the result of an application to set aside the judgment or order."

See Practice Note (Bankruptcy : Statutory Demand : Setting Aside) (No.1 of 87), para.3, [1987] 1 WLR 119 applied in Re A Debtor (No.657/SD/91) Exparte Inland Revenue Commissioners v. The Debtor [1993] BCLC 180. Although no parallel direction exists in Hong Kong, that practice is obviously sound and ought to be followed.

Set-off/Cross-Demand

(1) The counterclaim for breach of contract

18. There are two principal strands to Mr Maydwell's submissions. The first is an alleged breach of contract by ATD in failing to place orders for 158,000 units of cordless telephones during the calendar year 1992 under a distributorship agreement dated 5 December 1991. Mr Maydwell's case is that by July 1992, there remained 64,000 units yet to be ordered by ATD. Variation was then agreed allowing for a reduction to 61,000 units. ATD placed orders for 30,012 units on 1 September 1992 after the variation was agreed but that those orders were cancelled on 30 September 1992. Mr Maydwell submitted that as guarantor, he is entitled to the benefit of any set-off or counterclaim which the principal debtor (Skink) may have against the creditor. Accordingly, he is entitled to put forward Skink's claim for breach of contract.

19. There are insuperable difficulties with the breach of contract submissions. First, any counterclaim that Skink might have would be against ATD and not WFM who is the judgment creditor in the present case. Secondly, Skink was wound up almost six years ago. Thirdly, as I understand it, there is no counterclaim on foot although the matters relied on by Mr Maydwell have been known to him for some years, certainly at the time he advanced his counterclaim in December 1995 which action was subsequently discontinued. Indeed, damages suffered by Skink in respect of the alleged breach formed one of the heads of claim in his long abandoned counterclaim. In the circumstances, the alleged breach of contract claim is not made bona fide and is not a valid ground for setting aside the Second Demand.

20. Mr Maydwell sought to counter this conclusion on the basis that the counterclaim is being asserted in New South Wales by his second application to set aside the New South Wales judgment and subsequent appeals. Accepting that at face value for present purposes, Mr Maydwell has not been successful so far in his efforts to persuade the New South Wales courts to admit fresh evidence and whilst he is seeking leave to appeal to the Federal High Court of Australia, his alleged counterclaim does not as much as get off the ground unless fresh evidence is allowed to be introduced. In this connection, Einstein J observed (at pp.30-31 of his judgment) :

" This is not a case where to refuse the allowing of fresh evidence would, as it seems to me, affront commonsense, or a sense of justice. This is not a case in which, as it seems to me, basic assumptions common to both sides have been falsified by subsequent events. This is rather a case in which, as it seems to me, there is no utility in granting the extension in time in which to file an appeal, because regardless of the material presented on the hearing of an appeal, the appeal would, in my view, have no prospects of success, or such very slender prospects of success, as not to warrant the granting of the leave to appeal.

...Ultimately, of course, the question of whether or not to grant an extension of time is a discretionary question. In my view, there is no utility in granting that extension of time as none of the new evidence would fatally flaw the Master's judgment, which at the end of the day was grounded upon the pleadings, and upon the conclusiveness of the certificate, as to which matter the position today remains as it then was."

No doubt if Mr Maydwell sought to assert his counterclaim by any fresh action in New South Wales, issue estoppel and/or res judicata are significant hurdles that would have to be overcome.

21. Mr Maydwell also submitted, in the alternative, that WFM were themselves in breach of their own undertaking that they would ensure that the orders for the 61,000 units were placed with Skink. Precisely the same point was made by Mr Maydwell in the Court of Appeal in relation to the second setting-aside summons. See WFM Motors Pty Limited v. Maydwell [1996] 1 HKC 444 at 446G. It was considered and rejected by the Court of Appeal at 453D - 454E. It was not pursued by Mr Maydwell in the Privy Council. There is simply no basis for the court to allow this point to be revisited now.

(2) The misrepresentation claim

22. The other strand arises out of an alleged misrepresentation made by Mr Ross Jackson to Mr Maydwell as to the banking facilities of ATD. Although described as a cross-claim by Mr Maydwell, this is in substance a collateral attack on the Guarantee upon which the judgment was founded. Notwithstanding that, Mr Maydwell was allowed to develop his submission.

23. According to Mr Maydwell, the initial negotiations leading up to the Guarantee were conducted between him and Mr Jackson. Mr Maydwell relies on certain statements alleged to have been made by Mr Jackson which are set out in Mr Maydwell's affidavit sworn on 28 June 1994, Exh. MBM-4 to his affidavit filed in the New South Wales action. This affidavit was part of the Record in the Privy Council proceedings.

24. The relevant statements alleged to have been made by Mr Jackson and relied on by Mr Maydwell are set out below. It is to be noted that the following statements represent Mr Maydwell's recollection of the substance of what Mr Jackson allegedly said to him :

"These WFM guys don't have the least idea about the cordless business. It is all dollars and cents to them and, on paper at least, it is hard to justify ordering more stock now and if sales don't go as I expect they are not going to be happy about the financial results. It is hard enough to make a profit the way the economy is now. Anyway, what I need from you is a solution to the advance position and everything will be fine as far as letters of credit go."

(Record, Part II, p.432)

"ATD can't raise any further finance and WFM is extremely unhappy with the state of the account between Skink and ATD. We need WFM to help but they won't. I've run out of ideas to solve this so you had better come up with something, and it had better not involve ATD buying any more cordless or issuing any more letters of credit to Skink."

(Record, Part II, p.434)

"The only way of obtaining letters of credit now is through WFM. WFM will only help if you put up some form of security, for example a mortgage over your property in Australia."

(Record, Part II, p.438)

"You don't understand these guys. They have told me not to raise any further payments or orders on Skink. You don't seem to realise just how serious this situation is. Do you think they care what the contract says? These guys get what they want and right now they want to see your neck on the line before they are going to do anything."

(Record, Part II, p.438)

"Well, what about a personal guarantee? It would show him you are sincere about improving the advance position and give WFM the confidence to get behind ATD and raise letters of credit."

(Record, Part II, p.440)

"I can't imagine how we could move that many more cordless. But all Nick cares about is getting the advance money back as quickly as possible. If you sign a personal guarantee, they'll put up whatever finance is needed to support the new orders for 61,000 pieces. I don't know how I am going to do it but I will just have to sell, sell, sell."

(Record, Part II, p.448)

25. Mr Maydwell's case is that these statements constitute a representation that ATD did not have sufficient banking facilities, and that the only solution open to ATD was to seek WFM's financial assistance. In fact, at the time, ATD had unutilized credit facilities of A$1.99 million. This, according to Mr Maydwell, rendered the representation made by Mr Jackson false. It is Mr Maydwell's case that this 'new' evidence was only obtained by him in late 1997. It was an exhibit to an affidavit dated 12 July 1995 which affidavit Mr Maydwell obtained some time in May 1996. Mr Maydwell allegedly did not have sight of the exhibit itself, being a letter from the bank for audit purposes ("the audit confirmation letter") completed by the bank on (what appears to be) 28 August 1992 until December 1997.

26. The misrepresentation claim involves accepting Mr Maydwell's evidence of what Mr Jackson is alleged to have said to him. It is pertinent to note Einstein J's observations concerning Mr Maydwell (at p.14 of his judgment) :

" Mr Maydwell was cross examined before me. I formed the view that he was not a satisfactory witness. I formed the view that his evidence could not be accepted unless corroborated by written material supportive of what he asserted or sought to assert and being contemporaneous. I formed the view that in giving the evidence he did before me, he departed from time to time from evidence that he had given in cross examination before Windeyer J...."

27. In my judgment, the statements relied upon by Mr Maydwell are not remotely close to constituting any actionable misrepresentation as would entitle Mr Maydwell to avoid the Guarantee. The audit confirmation letter on which Mr Maydwell placed heavy reliance does not demonstrate that Mr Jackson's statements as to ATD's financial condition were false. Moreover, the confirmation was not available until the end of August 1992, some five weeks after the date of the Guarantee. It does not establish Mr Jackson's state of knowledge as at the date of the Guarantee.

28. Mr Beresford referred the court to a number of core documents in the Record based on which the Privy Council reached certain conclusions set out in its judgment. In reply, Mr Maydwell invited the court to undertake a comprehensive reading of the evidence with his assistance in which to reach a different conclusion, a process had it been allowed to go ahead, would have thrown the court's diary into total disarray. As it was, the hearing which was fixed for one day had taken more than two. It is not as if Mr Maydwell did not appreciate what his application involved. In the result, Mr Maydwell was invited to provide the court with 'a reading list' of documents relied on to supplement his already lengthy submissions in reply.

29. Mr Maydwell's written submissions in reply constitute an ill-disguised attempt to attack the conclusions of the Privy Council as to the trading relationship between the parties. Mr Maydwell's strategy was all too apparent : whilst stoutly denying it, what he sought to do was to attack and undermine the Privy Council and/or the New South Wales judgment. Most of the material now relied on by Mr Maydwell formed part of the Record before the Privy Council. So far as 'new' evidence is concerned, as will become apparent, the Supreme Court of New South Wales as well as its Court of Appeal have refused to admit it.

30. In his second application for leave to appeal out of time in New South Wales made in April 1997, there were 11 particular documents or classes of documents constituting 'new' evidence Mr Maydwell sought to adduce on an appeal if his application for leave were successful. The second application came before Einstein J on 16 February 1998. The affidavit and exhibit formed the ninth of the so-called new evidence items. Einstein J did not accept that Mr Maydwell could not have pressed for sight of those documents earlier. See his judgment at p.25. On appeal, Beazley JA delivering the judgment of the court, held :

"The third piece of evidence was the ninth category of document identified by Einstein J in his judgment, which was an affidavit of David Arthur Cowper, sworn [12] July 1995. Mr Cowper was the auditor of both ATD and WFM.

There were certain annexures to that affidavit upon which reliance was made by Mr Maydwell, for the purposes of this application. In particular, it was submitted that it demonstrated that Mr Jackson's representation to him that the need to bring WFM into the trading relationship between ATD and Skink was because of financial difficulties of ATD could not be accurate, given that a bank confirmation of an existing letter of credit at the time the representation was made showed that there remained in existence an amount of almost two million dollars of an unused facility. That document, however, tells us only that. It tells us nothing about the financial position of ATD at the time that the representation was made, and we have no way of assessing from that material alone whether the representation was false."

31. The misrepresentation argument apart from being another attack on the original judgment because its effect would be the rescission of the Guarantee, also involves an allegation of fraud, viz. the Guarantee was obtained by fraud and therefore the judgment founded as it is on the Guarantee is also tainted by fraud.

32. The classic statement of what is required to impeach a judgment on the ground of fraud is set out in the speech of Lord Simon in the Ampthill Peerage case [1977] AC 547 at 591 B-H :

"To impeach a judgment on the ground of fraud it must be proved that the court was deceived into giving the impugned judgment by means of a false case known to be false or not believed to be true or made recklessly without any knowledge on the subject. No doubt, suppression of the truth may sometimes amount to suggestion of the false: The Alfred Nobel [1918] P.293. But, short of this, lack of frankness or an ulterior or oblique or indirect motive is insufficient.

Moreover Jonesco v. Beard [1930] A.C.298, a decision of your Lordships' House, confirmed that, to impugn a judgment on the ground of fraud, the fraud must be alleged with particularity and proved distinctly. A person is not permitted merely to allege fraud in the hope of discovering it as the case develops.

'You cannot go to your adversary and say, "You obtained the judgment by fraud, and I will have a rehearing of the whole case" until that fraud is established.'

said James L.J. in Flower v. Lloyd (1877) 6 Ch.D.297, 302, cited with approval by Lord Buckmaster (the other members of the House concurring) in Jonesco v. Beard at pp.300-301. And in Flower v. Lloyd Sir George Jessel M.R. at p.300 cited Lord Redesdale:

'...the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated.'

The impugner of a judgment as obtained by fraud must adduce evidence of facts discovered since the judgment which show a reasonable probability (which I take to mean a prima facie case) of such fraud as would invalidate the judgment, before he can call on the person whose judgment he seeks to nullify to make any sort of disclosure: Birch v. Birch [1902] P.130. A person cannot merely say: 'I allege that you obtained your judgment by fraud; let me rummage through your papers and I shall be able to turn up something there which will enable me to prove it.' He cannot do that because it would be unjust.... Spencer Bower and Turner, Res Judicata, 2nd ed. (1969), p.324, para.373, states:

'Where the allegation, or the evidence, of the suggested fraud is inconclusive, or wanting in precision, or such as to give rise to no more than surmise, suspicion, or conjecture, the affirmative answer fails, and the estoppel is not displaced.'"

33. Mr Maydwell sought to distinguish the Ampthill Peerage case because it is plain that he is not in a position to adduce the evidence required. But those principles are applicable whenever fraud is alleged. Fraud must always be alleged with particularity. For that reason also, the misrepresentation claim has little prospect of success.

34. In my judgment, Mr Maydwell's case on misrepresentation is shadowy in the extreme and is not a valid ground for setting aside the Second Demand.

35. Mr Maydwell also relied on a further ground, namely that WFM is fully secured. That aspect can conveniently be considered under the next heading.

The First and Third Demands

36. These are two costs orders in favour of WFM totalling approximately $358,000. Mr Maydwell claims to set off against these sums three costs orders in his favour which, if aggregated, would exceed the orders in favour of WFM. However, the first (in the sum of $111,780) although in favour of Mr Maydwell, was not an order against WFM : the order was made against Skink who was the Plaintiff in that particular action to which WFM was never a party. In any event, this costs order had been satisfied by Skink by means of a bank guarantee from Westpac Banking Corporation. Subsequently WFM obtained a garnishee order and garnished the debt to answer the judgment dated 8 June 1994, the subject-matter of the Second Demand. In respect of that debt, WFM has already given credit for that sum. That is apparent from the calculation set forth in para.5 of the Second Demand.

37. Mr Maydwell next relies on an order in his favour in HCB1023 dated 12 April 1995. However, no steps have been taken to tax the costs to which Mr Maydwell is entitled. Although Mr Maydwell has apparently "issued" a bill, asserting that he is entitled to costs of $149,702.44, these costs have not been taxed and it would be somewhat surprising that as litigant in person, he would be able to recover the full amount since as I understand it, no part of such alleged costs are in respect of disbursements. Be that as it may, the alleged "bill" was only first disclosed in his affidavit filed on 8 December 1998 and the precise amount is as yet unknown.

38. The third item that Mr Maydwell relies on are taxed costs of $278,598.80 in his favour in HCB1023. This amount of taxed costs was served with a demand but Mr Maydwell did not seek to appropriate the cross-claim to any outstanding costs order at the time. WFM as debtor for that amount of costs sought to appropriate it against part of the interest accrued due on the judgment obtained in 1994. However, on 29 December 1998, the Director of Legal Aid set off the costs of $278,598.80 plus interest against the costs of the Privy Council appeal for which the Director of Legal Aid is liable.

39. WFM accepts that in view of section 19A of the Legal Aid Ordinance, the sum of $278,598.80 is not available to either Mr Maydwell or WFM to appropriate and as a result, Mr Maydwell's liability would be increased by a corresponding amount. Mr Maydwell does not appear to dissent from that view. Accordingly, the only amount available to Mr Maydwell to set off against the costs orders due against WFM is whatever can be attributed to the untaxed costs under the order of 12 April 1995. Assuming for present purposes that the amount is as alleged, the net result is that far from there being a surplus in favour of Mr Maydwell in respect of costs orders, the reverse is true. There is accordingly nothing in the first point taken by Mr Maydwell that there is a surplus owing to him under the various costs orders.

Value of security

41. Mr Maydwell's interest in shares in Skink and Comtowell stand charged with the payment of the amount due from him to WFM on the judgment including interest and costs up to the amount of HK$5.5 million by reason of the order of the Court of Appeal dated 24 October 1996. WFM has attributed nil value to this security. Mr Maydwell challenges this and contends that WFM is in fact fully secured.

42. It is common ground that both Skink and Comtowell are in liquidation. Comtowell's only asset is the McDonnell Road property which is being sold by the mortgagee for $6.6 million, completion due in January 1999. The amount due to the mortgagee is just over $6.2 million with interest estimated at a little over $352,000. Before taking into account the costs of the sale of the property and the mortgagee's legal costs since 17 February 1997, there is approximately a balance left of just under $39,000. In fact these unknown amounts are likely to absorb much of the remaining amount before taking into account the costs of the liquidation and proofs of debt lodged amounting to $1.375 million.

43. Mr Maydwell sought to argue that Comtowell does have another asset inasmuch as a claim has been made against the mortgagee regarding the mortgagee's sale of the Mody Road property. This action was brought by Mr Maydwell and Comtowell before it went into liquidation. Mr Maydwell submitted that the claim, brought under the Cuckmere Brick principles is strong, in that the property was sold by the mortgagee for $3 million and according to Mr Maydwell, resold by the purchaser two weeks later at $7 million. Factually, that is not correct since the interval between the two contracts for sale was about two months and not two weeks. At this stage, of course, the claim filed some 16 months ago is purely speculative inasmuch as there has not been much progress in the litigation and plainly no certainty that anything will be recovered assuming that the action is pursued. For what it is worth, I do not agree that the case against the mortgagee is necessarily strong. That would depend on the evidence as to the steps taken by the mortgagee to sell the property and all the attendant circumstances. It is no answer to a statutory demand that in the (uncertain) event of Mr Maydwell being successful in that action, WFM may have security for at least part of its claim.

44. For the reasons set out above, I do not accept that any of the statutory demands ought to be set aside. Accordingly, I order that Mr Maydwell's applications to set aside the statutory demands do stand dismissed with costs.

The bankruptcy petition

45. On 15 September 1998, WFM issued an expedited petition pursuant to section 6C of the Ordinance. On 21 September, Mr Maydwell applied to strike out the petition.

46. The sole ground of the summons issued by Mr Maydwell is that the petition did not satisfy the conditions of the exception contained in section 6C of the Ordinance and must therefore be struck out. In other words, it is purely on a question of law. The point taken by Mr Maydwell is that as the earliest of the statutory demands upon which the petition is based was served on 21 July, the 'three-week period' for presenting an expedited petition lapsed on 11 August 1998.

47. Section 6C is in the following terms :

"Expedited petition

In the case of a creditor's petition presented wholly or partly in respect of a debt which is the subject of a statutory demand under section 6A, the petition may be presented before the end of the 3-week period there mentioned if there is a serious possibility that the debtor's property or the value of any of his property will be significantly diminished during that period and the petition contains a statement to that effect." (emphasis added)

The material parts of sections 6 and 6A of the Bankruptcy Ordinance provide as follows :

"6. Grounds of creditor's petition

(1) A creditor's petition must be in respect of one or more debts owed by the debtor, and the petitioning creditor or each of the petitioning creditors must be a person to whom the debt or (as the case may be) at least one of the debts is owed.

(2) Subject to sections 6A to 6C, a creditor's petition may be presented to the court in respect of a debt or debts if, but only if, at the time the petition is presented-

(a) the amount of the debt, or the aggregate amount of the debts, is equal to or exceeds $10,000 or a prescribed amount;

(b) the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured;

(c) the debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay; and

(d) there is no outstanding application to set aside a statutory demand served under section 6A in respect of the debt or any of the debts.

......

6A. Definition of 'inability to pay', etc.; the statutory demand

(1) For the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either-

(a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as 'the statutory demand') in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules; or

(b) ...

(2) For the purposes of section 6(2)(c) the debtor appears to have no reasonable prospect of being able to pay a debt if, but only if, the debt is not immediately payable and-

(a) the petitioning creditor to whom it is owed has served on the debtor a demand (also known as 'the statutory demand') in the prescribed form requiring him to establish to the satisfaction of the creditor that there is a reasonable prospect that the debtor will be able to pay the debt when it falls due;

(b) at least 3 weeks have elapsed since the demand was served; and

(c) the demand has been neither complied with nor set aside in accordance with the rules. "

The question of construction which arises is whether an expedited petition may only be served within three calendar weeks from the date of the service of the statutory demand or whether it may be presented even though the three weeks have elapsed so long as at the time of service there is outstanding any application to set aside the statutory demand. The point does not appear to be covered by authority.

48. The scheme of the Ordinance is that where a petition is based on a debt, the normal rule is that it may not be presented for at least three weeks. However by reason of rule 47(3) of the Bankruptcy Rules, that period of three weeks ceases to run starting with the date an application to set aside a statutory demand is made and for so long as it remains outstanding. The period of 'moratorium' during which no petition may be presented may thus easily be of several months' duration. As an exception, an expedited petition may be presented where there is a serious possibility that the debtor's property or the value of his property would be significantly diminished during the period of three weeks mentioned in section 6A and the petition contains a statement to that effect.

49. In In re A Debtor (No.22 of 1993) [1994] 1 WLR 46, Mummery J (as he then was) observed (at 50F) as follows :

"...If a petition may be presented within the three-week period, and even before the debtor has had an opportunity to apply to set the demand aside, it is difficult to see why the creditor should not be entitled to present such a petition after the application has been issued. What matters is whether the presentation is justified by a serious possibility that the debtor's property, or the value of it, will be significantly diminished during that period. That possibility may exist in a case where the debtor has issued an application to set aside the demand, as well as in a case where he has not done that or where he has not even had the opportunity to do that."

In that case, the petition was filed before the expiration of three weeks after the service of the statutory demand but after the debtor's application to set aside the demand. So although the point under consideration did not fall for decision in that case, the observations of the court do highlight the rationale for the exception. In my judgment, the creditor requires protection as much before as after the three-week period where the period is 'prolonged' by the filing of an application to set aside the statutory demand which effectively stops the three-week period from running. The rationale for the expedited petition is readily apparent : a creditor may require protection against the serious possibility of jeopardy to the debtor's property during the period when the creditor is prevented from presenting a petition by reason of section 6(2)(c).

50. Having regard to the scheme of the Ordinance, it would be wholly capricious to permit the exception during the three-week period irrespective of whether or not there is an application to set aside the statutory demand but to rule out the exception after the three-week period even though the creditor finds himself in jeopardy but is not in a position to present any petition because of any outstanding application to set aside the statutory demand. In my judgment, the construction contended for by Mr Maydwell is misconceived and wholly ignores the framework and rationale for allowing the exception.

51. A subsidiary point taken by Mr Maydwell is that the affidavit in support contained no evidence, as opposed to assertions, of jeopardy. I do not agree. Mr Maydwell's conclusion is not supported by any fair reading of Mr Aitken's affidavit having regard to the history of the litigation, Einstein J's conclusion (at p.27 of his judgment) that Mr Maydwell's second application in New South Wales was a forensic aspect of his tactics, relative to the bankruptcy notice served on him by WFM in December 1994, i.e. to stave off inevitable bankruptcy in Hong Kong, and the jeopardy to which WFM would be put if it cannot preserve the relation-back period against Mr Maydwell. In this connection, judgment in this case was first obtained in October 1993, just under five years from the date of the petition and the period of relation-back for transactions at an undervalue is five years ending with the date of the petition.

52. At the hearing, certain doubts were expressed by the Official Receiver as to the authority of Mr Aitken to verify the Petition on behalf of WFM. Since the hearing, the Official Receiver has advised the court that he no longer entertains any such doubt.

53. Accordingly, Mr Maydwell's application to strike out the petition is dismissed with an order nisi for costs in favour of WFM.

54. Rule 68 of the Bankruptcy Rules provides as follows :

"Debtor intending to show cause

Where a debtor intends to show cause against a petition, he shall file a notice with the Official Receiver specifying the grounds on which he intends to show cause, and shall post to the petitioning creditor or to his solicitor a copy of the notice, in each case 3 days before the day on which the petition is to be heard. (See Form 17)"

The only notice before this court is Mr Maydwell's summons to strike out the petition as an abuse of process. There is no other objection filed in relation to the petition. Mr Maydwell knew that the petition would be heard immediately after the applications to set aside the demands. That direction was given as long ago as 26 October 1998. Yet the only point taken was the construction point.

55. At the hearing, Mr Maydwell made an oral application for abridgement of time to show cause against the petition. Essentially he seeks to reargue all the points already made in his applications to set aside the statutory demands.

56. In my judgment, Mr Maydwell knew very well that notice had to be given of any objection to the petition. Not having given notice of any objection other than his summons to strike out as an abuse of process, it is no longer open to him to make other objections. Since the court has already dismissed his application to strike out the petition, a bankruptcy order should follow.

57. If I were wrong about this and that despite not having complied with rule 68, Mr Maydwell ought to be allowed to show cause against the petition and to have a second bite at the cherry, he has already had that opportunity. The court has, over a period of more than two days, heard his submissions to set aside the statutory demands. He was given considerable latitude. His submissions were extensive, and were made both orally and in writing. They went beyond the limits of what was appropriate for an application to set aside a statutory demand as those submissions sought to attack and undermine the judgment. The misrepresentation claim plainly had that effect. Whilst Mr Maydwell was not allowed to waste time by taking the court through all those submissions again, I am satisfied that Mr Maydwell has had more than a fair opportunity to put his case : in fact, he has had more than his fair share of judicial time. Little purpose would have been served had Mr Maydwell been permitted to remake and so repeat his submissions save to deprive other litigants of valuable court time. So that 'new' evidence he says he has uncovered should not be overlooked for this purpose, Mr Maydwell was invited to provide the court with a full list of this material. That he has done and the court has reviewed them. In the earlier part of this judgment, I have given full consideration to his submissions on those points. For the reasons already set forth, he has failed to demonstrate that there is any triable issue, much less any solid cross-claim : see In re Greenacre Publishing Ltd., The Times 17 December 1998.

58. The Appendix shows that Mr Maydwell is no stranger to either the courts of Hong Kong or New South Wales. A more persistent and obdurate litigant is difficult to imagine. His repeated attempts at rearguing issues run contrary to well-established principles which may be found in the speech of Lord Wilberforce in the Ampthill Peerage case at 569 A-E :

"...English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."

To similar effect is the following passage from the speech of Lord Simon of Glaisdale (at 575 G to 576) :

".. . Nevertheless the law recognises that they process cannot go on indefinitely. There is a fundamental principle of English law generally expressed by a Latin maxim (going back to Coke's Commentary on Littleton, p. 330) which can be translated: 'It is in the interest of society that there should be some end to litigation.' This fundamental principle finds expression in many forms. Parliament has passed statutes (the latest only last year) limiting the time within which actions at law must be brought. Truth may be thus shut out; but society considers that truth may be bought at too high a price, that truth bought at such expense is the negation of justice. The great American judge, Story J., delivering the judgment of the Supreme Court of the United States in Bell v. Morrison (1828) 1 Peters 351, 360, called the first of these Acts of limitation 'a statute of repose'; and in England Best C.J. called it 'an act of peace' (A'Court v. Cross (1825) 3 Bing. 329, 332-333). The courts of Equity, originally set up to make good deficiencies in the common law, worked out for themselves a parallel doctrine. It went by the technical name of laches. Courts of Equity would give relief only to those who pursued their remedies with promptitude. Then people who have long enjoyed possession, even if they cannot demonstrate a legal title, can rarely be dispossessed. Scottish law goes even further than English : delay in vindicating a claim will not only bar the remedy but actually extinguish the right. But the fundamental principle that it is in society's interest that there should be some end to litigation is seen most characteristically in the recognition by our law-by every system of law-of the finality of a judgment. If the judgment has been obtained by fraud or collusion it is considered as a nullity and the law provides machinery whereby its nullity can be so established. If the judgment has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such exceptional cases part, the judgment must be allowed to conclude the matter. That, indeed, is one of society's purposes in substituting the lawsuit for the vendetta. Sometimes it is the parties to the litigation and those who claim through them who are bound by the judgment; but sometimes it is the whole world which must accept the decision. There may of course be an appeal from a judgment, but it must be brought within a stipulated time, which will only be enlarged in exceptional circumstances. The appeal court will only rarely consider fresh evidence: parties to litigation are expected to produce their evidence at the trial; and that new methods of proof are available in law or in practice is rarely a ground for allowing an appeal to be brought out of the stipulated time: cf. McC. (R. D.) v. McC. (J. A.) [1971] 2 All E.R. 1097... And once the final appellant court has pronounced its judgment the parties and those who claim through them are concluded;... A line can thus be drawn closing the account between the contestants. Important though the issue may be, how extensive soever the evidence, whatever the eagerness for further fray, society says, 'We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough.' And the law echoes: 'res judicata, the matter is adjudged.' The judgment creates an estoppel-which merely means that what has been decided must be taken to be established as a fact, that the decided issue cannot be reopened by those who are bound by the judgment, that the clamouring voices must be stilled, that the bitter waters of civil contention (even though channelled into litigation) must be allowed to subside." (emphasis added)

In my judgment, it is high time that Mr Maydwell is made to take heed of those principles.

59. In conclusion, unless Mr Maydwell satisfies the First and Second Demands within the relevant three-week period which according to my reckoning in the case of each of the demands is three days from today, the Petition is to be restored for the making of a bankruptcy order.

Representation:

Mr Beresford of M/s Baker & McKenzie, for the Respondent

Applicant Mr Malcolm Basil Maydwell in person, present

Miss Angel Li for the Official Receiver

WFM v. Maydwell (MBM)

Enforcement of judgment