RE SHAW BROTHERS (HONG KONG) LTD

HCMP000280/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.280, 281 & 282 OF 1968

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IN THE MATTER of O.J. Action No.961 of 1967 between Shaw Brothers (Hong Kong) Limited (Plaintiff) and Lung ShingFan (gentleman) (defendant)

and

IN THE MATTER of an application for leave to extend the period of time limited for appeal

Coram: Blair-Kerr & Huggins, JJ.

Date of Judgment: 22 January 1969

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JUDGMENT

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Huggins, J: There are before the court applications for an extension of time for filing notice of appeal against three separate ordersin the action and it is necessary to set out something of the history of the matter. I shall refer to the respondents as “the plaintiffs”and to the applicant as “Mr. Lung”. The plaintiffs sought to recover a sum of $374,000.00 which they alleged to be due to them fromMr. Lung’s late wife. Unfortunately in the title of the writ which they caused to be issued there was no indication that Mr. Lungwas sued in his capacity as executor of his late wife. However, the Statement of Claim endorsed upon the writ made it clear thatMr. Lung was sued in his representative capacity and there can be no doubt that this was understood on all sides. Mr. Lung enteredno appearance and judgment in default was entered under Order 13. The learned Registrar’s endorsement was “Judgment as claimed” butwhen the formal judgment was drawn up it was drawn up in the form of a judgment against Mr. Lung personally and not in the form prescribedfor a judgment against an executor. The precise terms of the formal judgment were:

The 14th Day of February 1968
No appearance having been entered by the defendant herein IT IS THIS DAY ADJUDGED that the defendant do pay the plaintiff$374,000 and $734.75 fixed costs.”

2. Mr. Lung took out a summons to set aside the judgment which had thus been obtained in default and upon the hearing of the summonsbefore Mr. Justice Mills-Owens a consent order was made. In his affidavit in support of the summons Mr. Lung admitted that a sumof $74,000 was owed by his late wife to the plaintiffs. The first part of the consent order amended the summons so that instead ofasking that the whole judgment for $374,000 be set aside it now asked that the judgment be set aside only “as to H.K.$300,000”. Asto the balance the order reads:

“Judgment as to $74,000 to stand with a stay of execution for 28 days from the date thereof.”

The summons was then adjourned to a date to be fixed and it was ordered that execution as to $300,000 be stayed pending the hearingof the summons. At the adjourned hearing Mr. Lung did not appear and the summons was dismissed. Subsequently the plaintiffs soughtto execute against Mr. Lung personally in respect of the sum of $74,000 but the bailiff expressed some doubts about Mr. Lung’s personalliability and as a result a summons was taken out for leave to enforce in accordance with the judgment the writ of fieri facias whichhad been issued in that sum against Mr. Lung personally. An order was made in the terms sought. In execution of the writ of fierifacias Mr. Lung was imprisoned and he applied to this court for habeas corpus. A writ of habeas corpus was refused.

3. Before turning to consider the reasons for the delay in lodging notice of appeal it is, I think, essential to establish the truenature of the judgment which was originally entered and the effect of the consent order made upon the first hearing of the summonsto set aside that judgment. In the habeas corpus proceedings the basis of Mr. Lung’s case was that there was no judgment againsthim personally: the action was brought against him in his representative capacity and any judgment entered in that action was a judgmentagainst him in that capacity. The court held that whatever was the true position in regard to the judgment for $300,000 the judgmentfor $74,000 was a judgment against him personally. In the present proceedings Mr. Lung has made a volte-face and is contending thatnot only the judgment for $74,000 but also the judgment for $300,000 was a judgment against him personally: he says that no suchjudgment could properly be entered in the action as framed and that therefore he ought to be allowed to appeal against it.

4. It is common ground that the judgment originally entered was in form a personal judgment. If it was intended to be a personal judgmentthen clearly a serious error was made and prima facie Mr. Lung should be given an opportunity to have that error corrected ex debitojustitiae. No one has suggested that the error was a clerical mistake which could be corrected under the Slip Rule and I gain noassistance from Oxley v. Link(1). On any view I think the original judgment ought to be regarded as a judgment against Mr. Lung in his representative capacity. Ifone looks at the endorsement of the learned Registrar it is apparent that the judgment was to be “as claimed” and however misleadingthe title of the action the claim was unquestionably one against Mr. Lung as executor. The fact that judgment was entered in theform of a personal judgment cannot alter the fact that what the plaintiff applied to the Registrar to enter, and what the Registrardirected should be entered, was a judgment against the estate. Even the fact that the Registrar himself signed the formal judgmentcannot, as it seems to me, establish an intention which would be in direct conflict with the words of his endorsement. Where theformal judgment does not express the intention of the court the proper course is to move the court to amend the judgment: this caseis the opposite of MacCarthy v. Agard(2) where, upon the defendant’s misrepresentation that she was a married woman, judgment was intentionally entered against her as such.It is unfortunate that neither side has applied to amend the formal judgment at any time. Even if the judgment entered had includethe words “as executor” it would still not have been in the form prescribed by the Rules and a motion to amend ought to have beenmade. Had this been done as soon as the error was discovered much trouble could have been avoided. Nevertheless I have no doubt atall that judgment was directed to be entered against Mr. Lung in a representative capacity.

5. The effect of the order on the summons to set aside is a little more complicated. Everything seems to me to turn upon the interpretationof the word “judgment” as used in the passage I have cited. What was ordered to stand was “judgment” not “the judgment” and I believethat the real effect was to substitute for the original judgment for $374,000 two judgments, one for $74,000 against Mr. Lung personallyand one for $300,000 against the estate: if the application had been granted at the adjourned hearing the judgment for $74,000 wouldhave been unaffected and that for $300,000 would then have been set aside. If that be not the correct way of looking at the matterthen “judgment” must mean “the judgment” and “the judgment” was the judgment in fact entered, which was (albeit wrongly) a personaljudgment. What Mr. Lung contends here is that he never authorized his counsel to consent to judgment against himself personally inthe sum of $74,000 or any sum. He says that he never appreciated that the judgment which had been entered in default of appearancewas not a judgment which could properly be entered, i.e. that it was not a judgment against him in his representative capacity. Inother words he assumed that “judgment” meant a judgment lawfully and properly entered and since it is conceded that the judgmentfor $374,000 was not lawfully and properly entered he contends he never assented to the terms of the consent judgment.

6. This brings us to a consideration of the authority of counsel, for if counsel had authority to consent on Mr. Lung’s behalf and intendedto consent to a personal judgment as to $74,000 that is an end of the matter so far as the plaintiffs are concerned. What the affidavitssay is that the solicitors did not instruct counsel to consent to a personal judgment against Mr. Lung and that Mr. Lung himselfwas never advised that the original judgment as entered was a personal judgment. What they do not say is that counsel was never authorizedto consent to an order in the terms of the order which was in fact made or that counsel on both sides were not ad idem. The positionseems to be that Mr. Lung is really saying he did not understand what the consent order meant and, as a result, agreed to somethingwhich he did not intend to agree to. This case is very different from Neale v. Gordon Lennox(3) where an express limitation of counsel’s authority to compromise was held to be effective although not communicated to the oppositeparty. The court will not as a rule interfere where there has been a unilateral mistake. Counsel for Mr. Lung has, I think, hintedthat the mistake was not unilateral and that both sides were under the same mistake, but all Mr. Lung has affirmed is that he expresslyrefused “to give (his) personal undertaking as a condition of any term of settlement”. We do not have any affidavit from the plaintiffs’advisers but we know it is not admitted that they were under any misunderstanding.

7. In my view the proposed appeal against the judgment of the Registrar dated 14th February 1968 is entirely misconceived and the applicanthas not shown that the proposed appeal against the order of Mr. Justice Mills-Owens dated 28th March 1968 has any merit. It is agreedthat the appeal against the order of Mr. Justice Morley-John dated 14th August 1968 must stand or fall with the previous orders.

8. It was urged upon us that even if Mr. Lung showed some ground for appeal against any of the orders an extension of time should berefused because he had failed to give a satisfactory explanation of his delay. More than 8 months has passed since the order of Mr.Justice Mills-Owens. Even when, as a result of the habeas corpus proceedings on 6th November, it was established that there was apersonal judgment against Mr. Lung in the sum of $74,000 he did not give notice to the plaintiffs of any intention to appeal untilthese applications were filed on 10th December. That itself was later than the 28 days allowed by Order 55 Rule 4 (2) for servingnotice and entering an appeal. I do not think this delay has been satisfactorily explained and I would dismiss the application inMiscellaneous Proceedings No.281 of 1968 and Miscellaneous Proceedings No.282 of 1968 on that ground also. That does not mean thatI accept the assumption, upon which the argument of counsel for the plaintiffs was based, that the plaintiffs had arranged theiraffairs in reliance upon the Orders against which Mr. Lung desires to appeal: there is no evidence before us that they did so.

22nd January, 1969.

Representation:

Donnelly (Hastings & Co.) for Appellant/Defendant.

Litton (Deacons) for Respondent/Plaintiff.

Judgment handed down by the Full Court.

(1) 1914 2 K.B. 734

(2) 1933 2 K.B. 417

(3) 1902 A.C. 465.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MISCELLANEOUS PROCEEDINGS NOS. 280-282 OF 1968

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In the matter of O.J. Action No. 961 of 1967 between Shaw Brothers (Hong Kong) Limited (Plaintiff) and Lung ShingFan (gentleman) (defendant)

and

In the matter of an application for leave to extend the period of time limited for appeal

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Coram: Full Court (Blair-Kerr and Huggins JJ.) in Court.

Date of Judgment: 22 January 1969

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JUDGMENT

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I agree. In regard to the amendment of the summons dated 22nd February 1968, my note of the submission of counsel for therespondents reads:-

“On 28th February, 1968 a lot of bargaining took place. The defendant produced no accounts of his administration. The plaintiff didnot wish to assume the burden of proving that there had been a devastavit which, if discharged, would have resulted in a personaljudgment against the executor. So, after a lot of bargaining, the defendant consented to liability personally for $74,000; and tomake sure that the consent order reflected what he agreed, his application to the court was amended so as to read that he was applyingonly to set aside the judgment of 14th February 1968 as to $300,000”.

These facts, if they are facts, should have been on affidavit if the respondents wished this court to take cognizance of them. However,it appears from paragraph 24 of Lung Shing Fan’s affidavit dated 11th December, 1968 that he wishes this court to take cognizanceof the court files in O.J. Action 961 of 1967 and Miscellaneous Proceedings No. 251 of 1968. The paragraph reads:-

“I refer to the court file of O.J. 961 of 1967 and Miscellaneous Proceedings No. 251 of 1968 for the complete record of the actionand the Habeas Corpus Proceedings referred therein”.

An appellate court should be supplied with copies of all documents to which an appellant intends to refer. Nevertheless, in this instance,I have read the court file in O.J. Action 961 of 1967; and, having done so, all I propose to say is that I am clearly of the opinionthat this is not a case in which this court should exercise its discretion in favour of Lung Shing Fan; and I agree that his applicationsunder O.3 r.5 for extension of time to enable him to appeal against the three orders dated 14th February, 28th March and 24th August,1968 should be dismissed.

(W.A. Blair-Kerr)
President.

22nd January, 1969.

Representation:

Donnelly (Hastings & CO.) for Appellant/Defendant.

Litton (Deacons) for Respondent/Plaintiff.

Judgment handed down by the Full Court.