Perak Pioneer Limited v. Bumiputra Malaysia Finance Limited and Others

CACV000062A/1985

BETWEEN

------------

BETWEEN

------------

Coram: Cons, Fuad & Kempster, JJ.A.

Date of hearing: 28th May, 1985.

Date of delivery of judgment: 28th May, 1985.

___________

JUDGMENT

___________

Cons, J.A. :

1. This is an urgent application for leave to appeal to Her Majesty in Council. We have been asked to abridge the time for service of the Notice of Motion and no objection has been taken. The short facts from which the motion arises are as follows.

2. The two would-be Appellant Companies are Perak Pioneer Limited and Plessey Investments Limited. It is alleged that in the past the Companies have borrowed monies from a Hong Kong company by the name of Bumiputra Malaysia Finance Limited. By the 31st December 1983 the amounts said to have been borrowed were considerable. On that day the Finance Company assigned all its rights in the debts to a Malaysian bank, the Bank Bumiputra Malaysia Berhad. It is common ground that the assignment took effect only in equity, the legal rights remaining in the Finance Company.

3. In July of last year the Finance Company and the Bank presented a joint petition to wind up Perak. It was not the first winding-up petition presented against Perak. Another had been presented earlier by Carrian Holdings Limited, to which the Finance Company was a supporting creditor. In September the Finance Company and the Bank presented another joint petition, this time to wind up Plessey. Immediately that had been done the Bank assigned whatever rights it had in the debts to another Malaysian Company, Petroliam Nasional Berhad. Subsequently Petroliam Nasional Berhad applied to be joined in both proceedings either as an additional petitioner or as the sole petitioner in substitution for the two already on the file. Both the Companies objected to the application. The matter came before Jones J. in the Companies Court. He refused to join Petroliam, but gave leave for the Company to be substituted as petitioner. The Companies appealed to this Court against the substitution and there was a cross appeal in regard to the joinder. Last Wednesday we gave our judgment. By a majority we dismissed the appeal and unanimously dismissed the cross appeal.

4. Basically there were four grounds argued on the appeal. We were in agreement as to those related to the question of debts disputed on substantial grounds and of petitions presented during the course of earlier petitions. We were not in agreement as to the effect in this jurisdiction of In re Paris Skating Rink ⁽¹⁾, which in the end included a question on the Application of English Law Ordinance, Cap. 88, and it was not necessary for the minority view to make a finding as to the true ambit of Rule 33 of the Companies (Winding-up) Rules, which Mr. Potts today has referred to as "the Australian point".

5. The question immediately arises whether the application is made today as of right or in the discretion of this Court. It is as a right if the judgment that we gave last week is a final judgment. Mr. Potts for the Companies submits that it is, and has drawn our attention to the recent English case of White v. Brunton⁽²⁾. With respect I find that case to be of no assistance. We are not concerted here with a separate trial as to liability and damages, as the court was there, and if what is there referred to as "the application approach" is adopted, these proceedings do not fit. An application to be jcined in a petition or to be substituted for the existing petitioners could not, even if successful, finally determine the matter in litigation, which in this instance is whether the two Companies should be wound up.

6. I turn then to the question of discretion. The Companies have to show that the question involved in the appeal ought to be submitted to Her Majesty in Council by reason of its great general or public importance or for some other reason. Mr. Potts suggests that the three questions i.e. the application of In re Paris Skating Rink⁽¹⁾, the Australian point and the matters arising in connection with the Application of English Law Ordinance are matters of that importance. Mr. Ching for the Respondents does not oppose his submission. Nevertheless the discretion still remains that of this Court. For my part, I am not persuaded that these three matters do raise questoins of great general or public importance. Indeed, I must confess that for myself I have yet to understand why the matter is of much importance at all, even to the Companies themselves. The material question seems to me whether the debts exist, not to whom the money may eventually be owed. But I have to assume, in view of the Companies' concerted action, that there is something else. For my part, I would refuse leave to appeal.

Fuad, J.A. :

7. Whether an order is final or interlocutory has troubled the courts for many years, but I think that there can be no doubt that the appropriate test must now be regarded as settled both in England and in Hong Kong, so that we must have regard to the nature of the application and not to the nature of the order made, as restated in White v. Brunton⁽²⁾ which applied Salter Rex & Co. v. Ghosh⁽³⁾. The test, therefore, is that an order must be regarded as interlocutory unless it is made on an application which will have the effect, whatever order is given on the application, that it would finally dispose of the controversy which divides the parties. I must confess, with due respect to the submissions addressed to us by Mr. Potts, that I for my part have no difficulty in holding that the order which we made which is sought to be appealed against was interlocutory, and like my Lord Cons J.A. I am unable to hold that the question is one of great general or public importance or that there is any other reason why the intended appeal should be submitted to Her Majesty in Council. Therefore in the exercise of the discretion given by rule 2(b) I, too, would refuse the application.

Kempster, J.A. :

8. I agree with what has fallen from my Lord Cons J.A. and from my Lord Fuad J.A. both as to the abridgement of the time provided by Order 8 rule 2(2) and as to the reasons why the substantive application should be refused.

9. In my view the applications heard by Jones J. to substitute Petroliam as petitioner in the two petitions was not, on analysis, the first part of the hearing of the petitions, by analogy with the hearing of a preliminary issue in a civil action or otherwise. Further, the two issues relied upon by Mr. Potts, who appears for the Applicants, the one deriving from the decision in In re Paris Skating Rink Co. ⁽¹⁾ and the other from a construction of Rule 33 of the Companies (Winding-up) Rules, are not matters of great general or public importance. Matters of general or public importance they may be but the word 'great' must be given appropriate weight. I am not able to accord the legal issues relied upon that degree of significance.

(1)    [1877] 5 Ch.D. 959; 37 L.T. 298; 25 W.R. 701

(2)     [1984] 1 Q.B. 570

(3)    [1971] 2 Q.B. 597

Representation:

Mr. Robin Potts, Q.C. and Mr. Winston Poon (M/s Fairbairn & Kwok) for Applicants/Appellants.

Mr. Charles Ching, Q.C., Mr. Anthony Heoh and Mr. John Bleach (M/s Peter Mark & Co.) for Respondents.