William Teh Yee Lee Tradings As Hong Kong Kowloon First Securities Co. and Others v. The Nikko Securities Co. (Asia) Ltd. and Others

CACV000005/1984

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BETWEEN

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AND BETWEEN

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And Between

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AND BETWEEN

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Coram: Sir Denys Roberts, C.J., Sir Alan Huggins, V.-P. & Yang, J.A.

Date of Judgment: 2nd February 1984

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. In this case the learned judge below was asked to make an order consolidating three actions. He in fact consolidated two of them (which have been called "No.1" and "No.3") and ordered that the trial of those actions stand over until the completion of the second action. No appeal is brought against the consolidation order.

2. What is objected to is the postponement of the trial of the first and third actions until completion of the second one. There is no doubt that if the second one is tried first that will decide all the matters which are in issue between the parties. However, the objection arises from the fact that the issues in the second action are going to be very much wider than those in the first. So it would appear at first sight, and Mr. Swaine has argued, that the first and third actions cnn be kept within a narrow compass and that, that being so, the order made by the judge is unfair on the Plaintiff William Lee because, he says, William Lee is entitled to an early decision of his claims.

3. I confess that during the course of the argument I have swung from one side to the other, but we are faced with the position that Mantell, J. has made an order, and we should not interfere with it unless we are satisfied that he was wrong. He would be wrong if, as Mr. Swaine contends, no substantial part of the evidence given on the first action will have to be repeated when the time comes for the trial of the second action, and I will call them the "first" and the "second" action, the first being the consolidated action and the second being action No.2.

4. The defence in the first action is that Mr. William Lee is ' in fact the nominee of his father James S. Lee. Alternatively it is said that, if the account in question is William Lee's own beneficial account, he has charged it as security for a liability of James Lee and it should not therefore be made available pending a decision of James Lee's liability. Mr. Swaine has argued this very forcefully and he says, in effect, two things. He says first of all one has to decide in the first action whether or not this is James Lee's liability. He says if it is James Lee's liability, then William Lee must necessarily fail. Secondly he says that if this is William Lee's account, and he is beneficially entitled, then the security which has been given is security not supporting the general indebtedness of James Lee but for a particular indebtedness of James Lee, namely (and this is as pleaded in the action) a security for repayment of a particular sum of money remitted on behalf of James Lee.

5. As I see it, the answer to this argument is this. I do not see how it is possible, on the case as it appears at the moment, to isolate this particular remittance from the rest of James Lee's liabilities and it seems to me - and I think it must have seemed to Mantell, J. - that it will in fact be impossible in the first action to restrict the evidence so as to exclude all the matters which will govern James Lee's indebtedness on all the accounts. It is true that Mr. Swaine has said that the indebtedness on these accounts is a matter of interpretation and he submits that the issues in. the second action (which involve what he has described as "tortious liabilities") entirely separate and distinct. At one time I thought that this was correct and that it would be possible to dispose of the issues as to James Lee's liability in the first action without any danger of a repetition of this evidence subsequently. However, after anxious consideration, I am not persuaded that this in fact can be done. That being so, I am not persuaded that the decision of the judge was wrong and I would dismiss this appeal.

Sir Denys Roberts, C.J.

6. I agree. I would also dismiss the appeal.

Yang, J.A.

7. So do I.

7th February 1984

Representation: