TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD AND OTHERS

CACV 156/2007, CACV 163/2007, CACV 165/2007, CACV 180/2007

and CACV 181/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 156, 163, 165, 180 AND 181 OF 2007

(ON APPEAL FROM HCA NO. 1963 OF 2003)

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BETWEEN
TERKILD JOHAN TERKILDSEN 1st Plaintiff
JORGEN GUDIK MORTENSEN 2nd Plaintiff
and
BARBER ASIA LIMITED 1st Defendant
INTERNATIONAL STRATEGIES GROUP LIMITED 2nd Defendant
CHRISTOPHER MARK BARBER 3rd Defendant
ANDREW NICHOLAS BARBER 4th Defendant
PHILIP CLARK 5th Defendant
JAYNIE BARBER 6th Defendant
CHARLES FREDERICK DUNFORD 7th Defendant
COLIN SCOTT-LAWS 8th Defendant
PETER ELLIOT 9th Defendant

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 5 February 2009

Date of Judgment: 5 February 2009

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J U D G M E N T

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Hon Rogers VP:

1. This is a hearing to settle an order in respect of a judgment which this court handed down on 8 May last year.

2. It seems to me that all the orders and all the drafts and suggestions which have been put forward are wrong. The order that wepropose to make is in the following terms:

1. the Plaintiffs’ appeal be allowed in part as follows:

(1) the Plaintiffs’ appeal in respect of claims made against the 2nd Defendant in negligence be allowed;

(2) the Plaintiffs’ appeal in respect of claims made against the 5th Defendant under section 8 of the Protection of Investors Ordinance and breach of trust be allowed;

2. the 4th Defendant’s appeal in respect of the claims framed in negligence against him be allowed;

3. there be no order as to costs, save that the 4th Defendant’s costs be taxed in accordance with Legal Aid Regulations; and

4. subject to paragraphs (1), (2) and (3) above, the appeals do stand dismissed.

3. As a rider to that, I would say that one of the matters which I would specifically draw to the parties’ attention is that attemptswere made to give a blanket leave to amend pleadings. This court does not do that. If parties wish this court to approve an amendment,that amendment must be prepared well in advance so all parties can comment on it. It is bad practice for any court to allow a blanketleave to amend, because that causes considerable difficulties in case an invalid amendment is slipped in. In this case, it is allthe more important in view of what was said in paragraph 23 of this court’s judgment.

4. I would also add that the costs of this hearing will be costs in the appeal, because that is the normal course.

(Anthony Rogers) (Doreen Le Pichon)
Vice-President Justice of Appeal

Mr Nigel Bedford, instructed by Messrs Weir & Associates, for the 1st and 2nd Plaintiffs/Appellants in CACV165/2007

G Jacqueline Fangonil Walsh and Cosimo Borrelli, the Joint and Several Liquidators of the 1st Defendant, in person (Absent)

Mr Clifford Smith SC, instructed by Messrs Tanner De Witt, for the 2nd Defendant/Appellant in CACV 180/2007

Christopher Mark Barber, the 3rd Defendant/Appellant in CACV 181/2007, in person

Mr Nicholas Pirie, instructed by Messrs Munros, for the 4th Defendant/ Appellant in CACV 163/2007

Philip Clark, the 5th Defendant/Respondent, in person

Mr C W Ling, instructed by Messrs Deacons, for the 7th Defendant/Appellant in CACV 156/2007