Hi-watt International Enterprises Ltd v. Multi-luck Development Ltd and Another

HCMP 1327/2006

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1327 of 2006

(on AN INTENDED appeal from HCA NO. 4305 of 2001)

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BETWEEN

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 11 October 2006

Date of Judgment: 11 October 2006

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal out of time.  It is a renewed application, the first application was made before Cheung JA on 21 July and on 26 July he handed down written reasons refusing the extension of time to appeal.

2.The history of the matter is that the trial of this matter took place in February of this year and on the final day of the trial, 22 February, the judge gave judgment in favour of the plaintiff.

3.It was a simple judgment, it was on an account stated.  The account stated is written in Chinese and it was dated 3 April 1996, there was also confirmation of that in a letter in 2001.  But be that as it may, the important thing to note is that the account stated is somewhat detailed, it runs to seven complete paragraphs setting out many of the figures and was clearly the result of a detailed negotiation between the plaintiff and the defendants.

4.The defendants disputed the account stated, but the judge rejected the defendants’ evidence.  He pointed out in his judgment that the defence case had changed as to the basis upon which the defendant had been induced to sign that account stated.

5.The plaintiff’s evidence was not much use at the trial because the persons who gave evidence had not been involved in the matters back in 1996 and before, and so the judge considered that their evidence did not take the matter very much further.  But he found in the plaintiff’s favour on the basis of the account stated.

6.Having given judgment, the judgment was entered in March.  It was then on 24 May of this year that a winding-up petition was presented against the defendant.  That in itself, surprisingly enough, does not seem to have galvanised the defendant into very much action until some 27 days later when they sought to appeal out of time.  They first sought the agreement of the plaintiff that the appeal should be brought out of time, and that not having materialised, they applied to the court with the result that Cheung JA refused the extension.

7.One has to say, first of all, that the delay in seeking to appeal is, in my view, culpable.  One might excuse the defendant to a certain extent at the initial period, but once judgment had been entered in March, it should have been clear to them that steps should have been taken, even if the reasons were not available until May, to secure their position so that they could appeal.

8.Once the winding-up petition was presented on 24 May, and the written reasons for judgment were handed down on 26 May, again, the defendant, if it had been serious, should have taken immediate steps to try and appeal.  But by delaying for nearly a month after that before doing anything, in my view, they had culpably delayed and for that reason if leave to appeal is to be given they have to show a good arguable case for an appeal, but that, in my view, they have failed to do.

9.Essentially what the defendant seeks to do is to raise discrepancies in the account stated, based on the fact that it is now alleged that, for example, interest should not have been charged on an amount due between the parties and that there should have been a counter balance of the amount due from the defendant to the plaintiff by reason of the fact that there was $3 million-odd owing from the plaintiff to the defendant at the material time.

10.In my view, these arguments which are now put forward were all arguments which the judge was in a position to deal with at the trial and did deal with.  But they are all explicable, it seems to me, on the basis that the interest charges which are sought to be challenged at this stage, were valid charges.  It may be that initially the plaintiff did not demand interest from the defendant, but it appears that subsequently in 1994 they did seek to recover interest on the amounts due from the defendant to the plaintiff.

11.The fact that the interest charges appeared were entered on the account ledger in 31 March 1995, seems to me only to be of some benefit to the defendant because that delayed the time when they attracted interest on the further amount that was due by reason of the interest which had not been paid.

12.A short answer to the defendant’s application on this occasion seems to me to be the fact that they are simply trying to rerun the challenge to the account stated based on a few of the documents which emanate from previous times.  But these are all matters which were dealt with in the account stated, they are not matters which by reason of looking at the figures that were in the account stated could not have been apparent at the time when the account stated was agreed.  Since the judge had held, rightly in my view, that there was no proper challenge to that account stated, I do not see that there are grounds for appeal in this case.

13.For those reasons I would refuse leave to appeal.

Hon Le Pichon JA:

14.I agree.

Mr Thomas Au, instructed by Messrs Wat & Co., for the Plaintiff/Respondent

Mr Lee Yee Hung, instructed by Messrs J Chan & Lai, for the 1^st Defendant/Applicant