Bank of China, Macau Branch v. Chan Yeuk Wai and Another
Read the full judgment text of HCA 745/2003 on BabelCite. This High Court CFI judgment was delivered on 9 November 2004.
1. There was a summons before me issued on 6 November 2004 seeking leave to file the 2 nd affirmation of Keung in order to produce a legal opinion on Macau law dated 4 November 2004. The 1 st defendant also sought an abridgement of time, less than two clear days have been given so far as the summons was concerned. I granted an abridgement of time because although the summons was not issued until 6 November 2004, the opinion had been supplied on 4 November to the plaintiff’s solicitor.
Cites 1 case
|
HCA745/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.745 OF 2003 --------------------- BETWEEN
--------------------- Before : Hon Tang J in Chambers Date of Hearing : 9 November 2004 Date of Decision : 9 November 2004 Date of Reasons for Decision : 26 November 2004 ---------------------------------------------------------- REASONS FOR DECISION ---------------------------------------------------------- 1.There was a summons before me issued on 6 November 2004 seeking leave to file the 2nd affirmation of Keung in order to produce a legal opinion on Macau law dated 4 November 2004. The 1st defendant also sought an abridgement of time, less than two clear days have been given so far as the summons was concerned. I granted an abridgement of time because although the summons was not issued until 6 November 2004, the opinion had been supplied on 4 November to the plaintiff’s solicitor. 2.The 1st defendant was sued as a guarantor and it is common ground that the guarantee is governed by the law of Macau. 3.The application for summary judgment was issued on 2 December 2003. On 22 December 2003 Master Lung made an order to the following effect :
4.On 18 June 2004, Mr Keung in his 1st affirmation had this to say about difficulty in obtaining a legal opinion from Macau :
5.On 21 June 2004, the hearing before Master Wong for summary judgment took place. I was told by Mr Ng who appeared on behalf of the 1st defendant that there was no application for an adjournment before the learned master. 6.Judgment was given against the 1st defendant on 21 June 2004. An appeal from that judgment was lodged on 2 July 2004. 7.Then on 5 November, came Mr Keung’s 2nd affirmation exhibiting the legal opinion. 8.I did not believe the 1st defendant had adequately explained the delay in supplying the legal opinion. The only explanation was Mr Keung’s 1st affirmation of 18 June which I have referred to above. At the hearing, Mr Maurice Ng explained further by saying that it was only in October that his instructing solicitors managed to instruct theMacau lawyer who supplied the legal opinion now sought to be relied on. But that was a bare assertion and I am not satisfied that the 1st defendant could not have instructed a Macau lawyer earlier. 9.It will be noted that leave to serve evidence was given as long ago as December 2003. Having regard to the lapse of time I did not believe the explanation given for the delay was satisfactory. 10.Moreover, the legal opinion which was sought to be relied on was accompanied by many pages of documents in Portuguese without any translation. 11.More importantly, Mr Ng in response to a query by me in relation to clause 10 of the guarantee accepted that the legal opinion had omitted to deal with clause 10. He therefore sought leave from me to adduce a supplemental legal opinion dealing with clause 10 of the guarantee. 12.Now, on an appeal from a master, the court is much more ready to admit further evidence than on appeal to the Court of Appeal. Nevertheless it is a matter of discretion and it depends on the circumstances of the case. See Wong Hung Yu v. Wu Ming Fat [2002] 1 HKLRD 555 paras. 13, 14. 13.Under clause 10 of the guarantee or certificate, the 1st defendant had waived the right to require the creditor to start legal action, against the principal debtor before enforcing the guarantee, and the right to require the creditor to enforce and realize all the principal debtor’s assets first :
14.Because the defendant’s legal opinion did not deal with such waiver or its validity, the 1st defendant’s legal expert opinion was of little value, since the opinion seemed to say that as a matter of the law of Macau, the plaintiff was not entitled to sue the 1st defendant until after it had sued the principal debtor and the security realized. I do not know whether clause 10 was effective in waiving such requirements. 15.It was highly unsatisfactory that, without any explanation and at the hearing of the appeal, I was asked to adjourn it so that the 1st defendant should have an opportunity to put its house in order. Mr Ng had argued that the plaintiff would not suffer any prejudice which an order for costs could not compensate. But even if that was so, I do not believe that an adjournment or leave should be granted automatically. Hence, I refused leave with reasons to be given later. These are my reasons.
Mr Liu Man Kin, instructed by Messrs Koo & Partners, for the Plaintiff Mr Maurice K.F. Ng, instructed by Messrs Johnny K.K. Leung & Co., for the 1st Defendant |
Cases cited in this judgment
Further hearings and rulings under HCA 745/2003