Libertarian Investments Ltd v. Thomas Alexej Hall

FACV Nos 14 & 16 of 2012

FACV No. 14 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 54 OF 2011)

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BETWEEN

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FACV No. 16 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 54 OF 2011)

BETWEEN

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Mr Justice Ribeiro PJ:

Application for extension of time to satisfy Judgment

1.On 6 November 2013, the Court dismissed the defendant’s appeal and ordered him to pay to the plaintiff within 21 days from the date of the judgment, the sum of £14,183,851.72 with interest.

2.By a summons dated 27 November 2013, the defendant sought an order extending time until 30 June 2014 to satisfy the judgement.  He asserted through his solicitors that an extension was necessary since most of his assets were illiquid.  This was opposed by the plaintiff.

3.The Court indicated that an extension to 30 June 2014 was unacceptable and that the application would only be entertained if accompanied by a proposal for an immediate substantial payment, followed by payment of the balance according to a short timetable. 

4.Correspondence was exchanged as to payment proposals, and the defendant made two payments in the sums of £813,190.03 and US$2,411,080.00 in November and on 9^th January respectively. 

5.By letter dated 9 January 2014, the defendant’s solicitors proposed payment of the balance by a first instalment of US$4,277,761.60 to be paid on or before 16 January, with further instalments in March and payment of the whole balance by the end of March.

6.The plaintiff’s solicitors replied on the following day indicating that there was an unpaid balance of £15,880,041.05 and that the plaintiff would accept the defendant’s proposal provided that the first instalment was increased to bring the amount paid by 16 January up to US$10.98 million, being the amount which the defendant’s solicitors had said (in a letter dated 9 December 2013) that he was to receive by way of dividend by the end of last year.

7.That was not accepted by the defendant who caused a payment in the Sterling equivalent of US$4,277,761.60 to be made yesterday.  Thus, to date, a total of £4.88 million (approximately US$8 million) has been paid, amounting to about 30% of the sum due under the judgment.

8.I have to decide whether I should accede to the defendant’s application for time to pay the balance on the basis of his presently proposed timetable, effectively staying execution until March, or whether I should dismiss his application and leave it to the plaintiff to enforce the judgment in such manner as it deems fit.  The plaintiff urges the latter course.

9.It is striking that the defendant has not personally made any affidavit or affirmation setting out his assets, explaining his difficulties or justifying the extension of time sought.  He has not personally offered any undertaking to make payment according to a stated schedule.  He has left it to his solicitors to convey what he has told them.  Through them, he has disclosed the existence of very considerable assets which suggests that he ought to be able to raise finance to meet his responsibilities as judgment debtor. 

10.As I have noted, on 9 December it was represented on his behalf that he anticipated receipts of dividends by the end of 2013 in the sum of US$10.98 million, an amount exceeding by almost US$3 million the amount paid up so far.  A modification of the Mareva injunction was sought to enable this to occur.  It was also represented that he anticipated receiving the proceeds of sale of a parcel of shares exceeding US$17 million.  On the basis of such anticipated receipts, the plaintiff offered to accept the defendant’s proposed payment schedule subject to his increasing the January instalment commensurately.  The defendant chose not to take up that offer, asserting through his solicitors that he was unable to meet that term, but giving no explanation as to why that was so. 

11.It is important that the defendant understands that the Court’s judgment is a compulsory order for punctual payment in accordance with its terms.  It is not an order permitting the defendant to satisfy the judgment in a manner and at a time which he finds most convenient. There is no room for playing cat and mouse either with the Court or the judgment creditor where an indulgence is being sought for time to pay.  This is especially so given the severely adverse findings which have been made regarding the defendant’s dishonesty and unreliability in his dealings with the plaintiff.

12.In all the circumstances, I do not consider that a case has been made out for the exercise of the Court’s discretion to grant any further extension of time.  I therefore dismiss the defendant’s application with costs and certificate for two counsel.

Mr Barrie Barlow SC and Mr Chan Pat Lun, instructed by Haldanes for the Plaintiff

Mr Colin Wright, instructed by Kennedys for the Defendant