Chen Sau Hong T/a Tung Shan Enterprises Co v Chan Kong Leung

Judgment Cited in Precedent Map Related
Judgment Date18 January 1968
Year1968
Judgement NumberCACV49/1967
CourtCourt of Appeal (Hong Kong)
CACV000049/1967 CHEN SAU HONG t/a TUNG SHAN ENTERPRISES CO v. CHAN KONG LEUNG

CACV000049/1967

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 49 OF 1967

(On Appeal from O.J. Action 1443 of 1967)

-----------------

BETWEEN
CHEN SAU HONG trading as TUNG SHAN ENTERPRISES CO. Plaintiff/
Respondent

AND
CHAN KONG LEUNG Defendant/
Appellant

Coram: Hogan, C.J., Rigby, S.P.J. and Blair-Kerr, J.

Date of Judgment: 18 January 1968

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JUDGMENT

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1. This matter seems to have had an unfortunate history.

2. Clearly there was material before the judge in the court below which might well have justified granting an interim injunction but subsequent events give ground for more anxiety.

3. It appears that when he made his initial order he contemplated granting an injunction ex parte to last until the 20th October when the defendant would be summoned to attend before him in Chambers so that the defendant would have an opportunity of being heard on the question whether the injunction should be continued. The formal order drawn up to give effect to that decision appears to have contemplated that an inter partes summons would be taken out for that date. In fact, no such summons was taken out and the respondent to the application for the injunction was served merely with a copy of the interim order and a copy of the original writ of summons which required him to enter an appearance within 8 days. The order, when it used the phrase returnable on the 20th October would almost certainly have conveyed to a lawyer the message that he should appear in court on that day but the meaning conveyed to a layman could be very different indeed and, quite apart from the respondent's assertion that he was told by the solicitor for the other side that what he had to do was to enter an appearance, which he did, we could well understand the respondent forming that view himself, merely as a result of perusing the documents and without any such misleading advice. Nevertheless, when he failed to appear on that day, the judge extended the injunction until the hearing and subsequently refused an application by the respondent to discharge it. The only ground shown for taking this course was the failure if it can be so described - of the respondent to appear on the 20th October, a failure for which we think he was not to blame.

4. Just to add a little more to the confusion the interim order bore the wrong endorsement.

5. Not only has the judge in the court below apparently overlooked the fact that no summons had been taken out for the 20th October but in granting the interim injunction and continuing it up to the date of trial, he does not appear to have taken account of the continuing liabilities to the godown...

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