JAMES MCONOMY LIMITED v. PHILIP YUNG TAK LAM AND OTHERS

HCMP000424/1985

IN THE COURT OF APPEAL

Miscellaneous Proceedings

1985, No. 424

BETWEEN

JAMES MCONOMY LIMITED.

Plaintiff (Respondent)

and

PHILIP YUNG TAK LAM 1st Defendant (Applicant)
PROSPERITY LANTON LIMITED 2nd Defendant
ROKAPHILA LANTON LIMITED 3rd Defendant

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Coram: Sir Alan Huggins, V.-P., Fuad & Kempster, JJ.A.

Date of hearing: 5th March 1985

Date of delivery: 5th March 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This matter has had a very chequered career. In August of last year there was a Summons under 0.14 for summary judgment. The matterwas heard on 20th November and the Master gave leave to enter judgment. On 3rd December a judge set aside that order and gave conditionalleave to defend, the condition being that the money be paid into court. The condition was not satisfied and on 20th December judgmentwas entered pursuant to that order. On 16th January a garnishee order nisi was made against this Defendant and we are told that thatorder was made absolute on 7th February. On 6th February the 1st Defendant, who had been represented by solicitors, gave notice thathe would act in person, and on that day he took out a Summons in the High Court for leave to appeal out of time. The Summons didnot specify the order that was sought to be appealed, but we are told it was that of 3rd December and that it was dismissed. An extensionof time is now sought from this Court.

2. I have the gravest doubts whether there was evidence upon which judgment could be entered and unconditional leave to defend declined.For my part I can understand that, when the judge was apprised of the matter on 3rd December, he was a little anxious, but even thenI still cannot see that there was justification for imposing a condition.

3. The difficulty we are in is that the Applicant was extremely dilatory in going to the High Court for leave to appeal, but I am unhappythat this matter should be left as it is and I think it is desirable that we should (on condition) give leave to appeal out of time.The condition would be that the costs of this application and of the application to the High Court and the costs of the garnisheeproceedings be taxed forthwith and paid within fourteen days of taxation. If that condition is satisfied, I would grant leave toappeal against the order, treat this as the hearing of the appeal, allow the appeal and give the Defendant unconditional leave todefend. If the condition is not satisfied, the present application will stand dismissed and the existing orders will continue tohave effect.

Fuad, J.A.:

4. I agree.

Kempster, J.A.:

5. I also agree.

5th March 1985

Representation:

Applicant in person

Miss Cherry Bridges for Respondent