Lau Kwok-choi v. Rio-pack (HK) Ltd and Another

Case No.CACV 187/1980

Court

Court of Appeal

Date13 Feb 1981

Judge—

Case Document

100%

CACV000187/1980

Interpleader - as a matter of practice claims must be supported on oath.

IN THE COURT OF APPEAL

	1980 No. 187
	(Civil)

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	IN THE MATTER of NG Chi-ho, Peter trading as GAMMOON PRINTING FACTORY
	and
	IN THE MATTER of Order 17 of the Rules of the Supreme Court
	and
	IN THE MATTER of Section 97(1) of the Bankruptcy Ordinance (Cap.6).

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BETWEEN
	LAU Kwok-choi	Appellant
		(1st Claimant)
	and
	Rio-Pack (H.K.) Limited	Respondent
		(2nd Claimant)
	and
	The Official Receiver and Interim Receiver of NG Chi-ho, Peter

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Coram: Huggins, V.-P., Leonard and Cons, JJ.A.

Date of Judgment: 13th February 1981

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JUDGMENT

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Huggins. V.-P.:

1. This is an appeal against an order made by a judge in chambers upon an interpleader summons. The Official Receiver held some property and he received claims from two claimants. Those claims were alleged to be based upon Bills of Sale, the 1st Claimant having an apparent Bill of Sale which had been registered before that of the 2nd Claimant. The parties were served with notice of hearing and they appeared before the judge. For some reason which I confess I fail to understand the 1st Claimant declined, despite repeated invitations from the judge, to support his claim by evidence on oath, even though he was present. The 2nd Claimant filed an affidavit and at the hearing gave evidence on oath.

2. It is contended, and was contended before the judge, that there was no obligation on the 1st Claimant to support his claim on oath. I am entirely unable to agree. It is true that there is no express rule requiring an affidavit, but it has long been the practice that every claim shall be supported on oath, the reason clearly being that it enables the judge to be satisfied that there is some substance in the claim that is made before he proceeds to decide upon the trial of issues. Here he was faced with the position that although a claim had been made to the Official Receiver there was, as he described it, no claim by the 1st Claimant for the purposes of the proceedings before him: there was a claim, but it was a totally unsupported claim and a claim which the 1st Claimant was unwilling to support on oath.

3. It was admitted by the 1st Claimant's counsel that the judge had power to proceed to summary trial. What was then the position? The judge had a claim by the 2nd Claimant supported by evidence and a claim by the 1st Claimant totally unsupported by evidence. It is not surprising that he entered judgment in favour of the 2nd Claimant, and I would dismiss this appeal.

Leonard, J.A.:

4. I agree and have nothing to add.

Cons, J.A.:

5. I entirely agree with the reasons given by my Lord President and I, too, would dismiss the appeal.

13th February 1981.

Representation: