NG YAT CHI AND ANOTHER v. MAX SHARE LTD AND ANOTHER

IN THE COURT OF APPEAL

1996, No. 252
(Civil)

BETWEEN
NG YAT CHI 1st Petitioner
(1st Appellant)
CHOY BING WING 2nd Petitioner
(2nd Appellant)
AND
MAX SHARE LIMITED 1st Respondent
(1st Respondent)
CHINA RESOURCES (HOLDINGS) CO. LTD. 2nd Respondent
(2nd Respondent)

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Coram: Hon Litton V-P, Ching JA and Keith J in Court

Date of hearing: 24 June 1997

Date of judgment: 24 June 1997

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JUDGMENT

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Litton V-P giving the judgment of the Court:

Costs

1. We deal with the costs as follows:

(1) Costs incurred in the court below: we discharge Roger J’s order as to costs, leaving each party to pay its own costs in the courtbelow.
(2) As to the costs incurred on the appeal we make no order as to costs.
(3) As regards the sum of $300,000 and accrued interest which has been paid into court as security for the costs of the appeal we orderthat it be paid out to the 2nd Appellant, Mr Choy Bing-wing.

Leave to appeal to Privy Council

2. We will now deal with the application for leave to appeal to the Privy Council.

3. There is before us an application made under Rule 2(b) of the 1909 Privy Council Rules for leave to appeal to Her Majesty in Councilin relation to a judgment we gave on 28 May this year. By that judgment we discharged an order of Rogers J who had struck out a winding-uppetition brought by the 1st appellant Mr Ng Yat-chi, an undischarged bankrupt. The effect of our judgment is that the petition broughtby him can now proceed, and likewise the petition for relief brought under s168A of the Companies Ordinance, Cap 32.

4. Obviously if our judgment be right then the sooner the matter proceeds to trial the better. At the end of the day the judgment wegave on 28 May turned upon a narrow compass, namely: is it right in the circumstances of the case that the 1st Appellant be permittedto seek relief in the companies’ court?

5. Mr Poon QC argues that the disclaimer by the trustee-in-bankruptcy of the 1st Appellant’s interest in the shares was in law effectiveand, having disclaimed, this deprived the 1st Appellant of his capacity to bring proceedings against the company.

6. That, as we see it, is a well identified point; if their Lordships conclude that the point merits further consideration, beyond theanalysis to which it has already been subjected in our judgments, they can give special leave. We bear in mind that ultimately whatwe were concerned with was an interlocutory appeal and expedition in these circumstances is an important factor.

7. We decline the application for leave.

(Henry Litton) (Charles Ching) (Brian Keith)
Vice-President Justice of Appeal Judge of the High Court

Representation:

Mr Ng Yat Chi & Mr Choy Bing Wing, Petitioners (Appellants) in person

Mr Winston Poon QC. (M/S Kao, Lee & Yip) for the Respondents (Respondents)

Mr M.K. Tam of Official Receivers’ Office (Appearing only as OR in CWU 321/96)