Li Taz Chiu and Others v. Ngo Chuk Kom and Others

APPELLATE JURISDICTION

APPEAL No. 1 of 1946

(O.J. Action No.6/46)

Coram: H.W.B. Blackall, CJ and T.J. Gould  J.

Date of Judgment: 15 February 1947

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JUDGMENT

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1. This is an appeal against the decision of Williams J., refusing an application for the appointment of a receiver pending the hearing of the appellant's claim for dissolution of partnership. At the first hearing of the appeal, the appellant for leave to produce additional evidence, which was granted, so this Court has had the advantage of a more comprehensive surrey of the position than the Learned Judge.

2. The principle upon which a Court acts with regard to the appointment of a receiver in these cases is this: if the Court can presently see that a dissolution must inevitably be decreed on the hearing of the action, it follows very much of course that a receiver will be appointed, but if the case stands in such a state that the Court cannot see whether it will be dissolved or not, it will not take into its own hands the conduct of a partnership which may or may not be dissolved (Goodman v. Whitecomb 1 J & E 589). Into which category then does the present case fall?

3. As to this, any member of a partnership, the duration of which is undefined, has a right, subject to any agreement between the parties, to dissolve it at any moment he pleases, and the issue of the writ in O.J. 6 of 1946 plainly indicates a desire. on the part of those partners who are plaintiffs in that action, to wind up the concern, and there is nothing before the Court to show that the partnership or (if there were two) either partnership, was other than a partnership at will. It was indeed suggested, somewhat tentatively, by Mr. D'Almada that it might transpire in subsequent proceedings that it was agreed that the alleged Hop Kee partnership should be for a term which has not yet expired. But if there was such a term, its existence would be known to the present defendants and, since none of them has asserted that it existed, it may be assumed that it did not. Even then if it were subsequently proved that the 2nd appellant is not a partner and that two persons who are not parties in the present proceedings are, the other plaintiffs would nevertheless be entitled to have the partnership dissolved. It is contended, therefore, on behalf of the appellants, that a dissolution is inevitable and that the application for the appointment of a receiver should not have been refused.

4. Mr. D'Almada, on the other hand, submits that such an appointment would in effect pre-judge the decision in the action as to whether or not the Fun Kee partnership was dissolved and replaced by a new partnership called Hop Kee, and he says this is a substantial issue that remains to be tried. But an examination of the respondent's own case discloses little or no support for such a contention. The respondents do not deny that the Stag Hotel business belongs to a partnership or that three out of the four appellants are partners therein. And the minutes produced by the 1st respondent disclose that both old and new shares are entitled to the same benefit without distinction as to whether they were old or new ) vide : Para are 10 of minutes of 5th April, 1945). It is clear, therefore, that whatever the nature of the re-organisation (if any) of the original partnership may have been, at least three of the appellants and the first respondent are members of the partnership which the appellants are seeking to dissolve.

5. The precise character and extent or the re-organisation may been a substantial issue so far as the 2nd appellant and the non-parties are concerned and may be material in the settling of accounts, but it cannot affect the right of the acknowledged partners to dissolve a partnership at will and, as this court is satisfied that the partnership is one of that character, it follows that the application should have been granted. The appeal is therefore allowed with costs.

15.2.47.