TYPHOON 8 RESEARCH LTD. v. SEAPOWER RESOURCES INTERNATIONAL LTD. AND ANOTHER

CACV002980A/2001

CACV 2980/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2980 OF 2001

(ON APPEAL FROM DCCJ NO. 5911 OF 2001)

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BETWEEN
TYPHOON 8 RESEARCH LIMITED Plaintiff
AND
SEAPOWER RESOURCES INTERNATIONAL LIMITED
(Provisional Liquidators Appointed)
1st Defendant
WANDY HOLDINGS LIMITED 2nd Defendant

Coram: Hon Rogers VP, Le Pichon JA and Suffiad J in Court

Date of Hearing: 14 November 2002

Date of Judgment: 14 November 2002

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J U D G M E N T

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Hon Rogers VP:

1. This is an application by the plaintiff which has been made by summons to join the Provisional Liquidators as defendants to thisaction. This court handed its judgment down in the appeal on 30 July of this year and in that judgment we made it plain that we consideredthat the deposit which the plaintiff had made in respect of rent was, under the terms of the particular lease, trust money. It hadbeen paid into the bank account of the 1st defendant.

2. The 1st defendant unfortunately is now in liquidation, but the liquidators have set aside a sum of money which is $426,475, whichrepresents the deposit money plus the interest. A question arises as to whether, because the Provisional Liquidators say that themoney cannot be directly traced, that money should be ordered to be paid. In my view, it should be so ordered.

3. There is authority which Mr Reyes, on behalf of the liquidators, has drawn to our attention in the Privy Council in the case of Space Investments Limited v CIBC [1986] 1 WLR 1072, which involved a bank which also went into liquidation and the observations of Lord Templeman in relation to trust monies whichhad been paid into the bank account. In my view, this provides ample authority for this court to make an order that the sum of moneyof $426,475 plus any further interest which has accrued, which in present circumstances will probably not be very much, should bepaid to the plaintiff.

4. In those circumstances Mr Christie, who has appeared again on behalf of the plaintiff, has indicated that he agrees that there isno purpose to be served in pursuing his application to join the Provisional Liquidators as defendants, at any rate for the presenttime. Therefore this court will make the order that that sum of money should be paid to the plaintiff.

Hon LePichon JA:

I agree.

Hon Suffiad J:

I agree with all that the V-P has said in his judgment.

(Anthony Rogers) (Doreen Le Pichon) (A.R. Suffiad)
Vice-President Justice of Appeal Judge of the Court of
First Instance

Representation:

The Plaintiff/Appellant acting in person, represented by its director Mr Lachlan Christie (present)

Mr A T Reyes SC, instructed by Messrs Allen & Overy, for the 1st Defendant and the Joint Provisional Liquidators of the 1st Defendant/Respondents