Mak Yee Ying v. Consolidated Sales Ltd
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CACV000016/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 16 OF 1970 (On appeal from O.J. 701 of 1969) -----------------
----------------- Coram: Blair-Kerr, S.P.J., Huggins & McMullin, JJ. Date of Judgment: 15th October, 1971. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against a charging Order absolute made by Briggs, J. in chambers. It is necessary to mention briefly how this Order came to be made. The Judgment-Creditors sued "Turner C. Lynn (a male) trading as Wintergreen's Rattancraft (a firm)" and obtained judgment. They then sought to enforce the judgment against the Defendant's wife on the ground that she was a partner or had held herself out as a partner of Wintergreen's Rattancraft, the husband's "firm". The Judge before whom the matter then came drew attention to the fact that Mr. Lynn had been sued in his individual capacity, but in spite of that he was asked to make an Order by consent setting down for trial the issue whether the wife was a partner or had held herself out as a partner and, though no doubt with reluctance, he did so. The issue came on for hearing before another Judge and it was found that the wife had held herself out as a partner. In reliance upon that decision the Judgment-Creditors then sought to levy execution against the wife for the amount of the judgment. They discovered that some land was registered in the wife's name as owner and obtained a charging Order nisi against that land. Thereafter the present Appellant lodged a claim to the land sought to be charged, on the ground that she had purchased the land in good faith and for valuable consideration from the wife before the date of the charging Order although, owing to an oversight, the assignment had not been registered until after the charging Order had been registered. Briggs, J. held that the instrument first registered took priority and that therefore the Judgment-Creditors were entitled to have the charging Order made absolute and it is against this decision that the Appellant now appeals. 2. The Notice of Appeal was filed on 22nd April, 1970. On 25th June, 1970 the Full Court reversed the decision whereby the wife was held to be liable for the judgment-debt, not on the ground that the finding on the trial of the issue was wrong but on the ground that, the judgment being against the husband as an individual, no question of partnership could arise upon the judgment: there was no jurisdiction for the trial of the issue. The effect of this decision of the Full Court was, of course, that the very foundation of the charging Order was cut away. An appeal to the Privy Council was lodged but was (and this has been confirmed by counsel before us) abandoned. 3. When the papers were put before us the grounds of the appeal against the charging Order absolute were those which had been filed before the decision of the Full Court and it was apparent to us that the matters intended to be argued could not arise unless the wife were liable to answer for the judgment-debt and we indicated that as this Court had already decided she was not liable we were not prepared to spend time considering matters which were, in the circumstances, of purely academic importance. As a result a further ground of appeal alleging removal of the basis upon which the charging Order absolute was made has been added at the hearing by leave of the Court. Counsel has not appeared on behalf of the Judgment-Creditors but their solicitor has been in Court and counsel for the Judgment-Creditors has told us that in spite of short notice the Judgment-Creditors do not oppose the application to add this new ground and do not wish to be heard upon the appeal. 4. It is manifest that the whole substratum of the proceedings whereby it was sought to charge this land has gone and that the charging Order must be set aside. In allowing the appeal, however, we desire to emphasise that we express no view as to the correctness or otherwise of the decision under appeal: we will consider the points of law which it involves if and when it becomes necessary in some future case. 5. We feel bound to point out that both the appeals which have come before this Court in relation to the charging Order have been the result of the consent Order which purported to give to the Judge in chambers who tried the issue as between the Judgment-Creditors and the wife a jurisdiction he did not have. 15th October, 1971. Representation: O. Cheung, Q.C. & R. Aroulli (F. Zimmern & Co.) for Appellant. Respondent not appearing. |