IDMISTON LTD v. ASIAN MASTER ENTERPRISES LTD

CACV000048A/1988

IN THE COURT OF APPEAL 1988, No. 48
(Civil)

BETWEEN

IDMISTON LIMITED

Plaintiff/Respondent

and

ASIAN MASTER ENTERPRISES LIMITED

Defendant/Appellant

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1988, No. 49
(Civil)

BETWEEN

IDMISTON LIMITED Plaintiff/Respondent

and

CROWNHALL INVESTMENTS LIMITED Defendant/Appellant

______________

1988, No. 50

(Civil)

BETWEEN

IDMISTON LIMITED Plaintiff/Respondent

and

ASIATIC FORTUNE COMPANY LIMITED Defendant/Appellant

______________

Coram: Hon. Cons, V.-P., Kempster & Clough, JJ. A.

Date of hearing: 15th November, 1988.

Date of delivery of judgment: 15th November, 1988.

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J U D G M E N T

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Cons, V.-P.:

1. The Plaintiff Company instituted three actions to recover payment of loans which had earlier been assigned to it from a sister company.The Defences filed alleged that repayment of the loans had been made by a series of transactions involving the Plaintiff’s parentcompany and another company registered in Liberia. By Replies the Plaintiff Company raised the question of fraud, suggesting itsperpetration by two gentlemen who held a controlling interest in the Plaintiff Company at the material time and in other companiesalso involved. The fraud was said to be by way of a scheme to syphon off the assets of the parent company into the private handsof the two gentlemen.

2. The judge below was satisfied that there was considerable evidence that both the Plaintiff and the parent company were victims ofsuch a fraud and he refused the application by the three Defendant Companies for security of costs under Section 357 of the Companies Ordinance.

3. On the 9th June the Defendants appealed to this Court, then slightly differently constituted. The main grounds of argument put forwardwere firstly that the fraud did not bring about the lack of means in the Plaintiff Company, which had never had any assets of itsown other than nominal; and secondly that the judge was wrong to consider what I termed at the time “the overall fraud” of a situation,rather the particular fraud aimed at the Plaintiff. I took the view that although there was possibly some substance in the firstground of appeal, the judge was quite properly entitled to look at the matter in the round, and I suggested that his discretion shouldnot be interferred with. My two brothers agreed.

4. We are now asked to give leave for the three Defendant Companies to appeal to Her Majesty in Council. It is of course an interlocutorymatter and the granting of leave is a matter for our discretion, which should only be exercised if the questions raised are questionsof great general or public importance or otherwise ought to be submitted to Her Majesty in Council.

5. Five questions are put forward in the Notice of Motion as being of that character. In my view however, they do no more than reflectthe particular circumstances on which the appeal was argued at the last hearing. To my mind they do not raise matters of great generalor public importance.

6. In the alternative Mr. Chan, who appears now for the Defendant Companies, suggests that they fall within the phrase “or otherwise”,and relying on comments of Mills-owens J. in Hui Shiu Wing v. Cheung Yuk Lin [1968] H.K.L.R. 176 he contends that it is sufficient if the case presents any unusual feature either of law or fact. To some extent I accept that thefeatures in the present instance are unusual, but I do not think they come anywhere near to being exceptional circumstances suchas would require us to exercise our discretion to pass the matter to Their Lordships of the Privy Council.

7. For my part I would therefore refuse the application.

(D. Cons)
Vice-President

Kempster, J.A.:

8. I too would refuse the application for’ the reasons given by my Lord.

(Michael Kempster)
Justice of appeal

Clough, J.A. :

9. I also agree and have nothing to add.

(P.G. Clough)
Justice of Appeal

Representation:

K.S. Edward Chan (M/s Tai, Tang & Chong) for Defendants/Applicants in all three appeals

Barrie Harlow (M/s Hampton, Winter & Glynn) for Plaintiff/Respondent in all three appeals