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Marquis Trading Co (A Firm) And Others v Associated Bankers Insurance Co Ltd And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date04 June 1982
Judgement NumberCACV83/1981
Subject MatterCivil Appeal
CACV000083/1981 MARQUIS TRADING CO (a firm) AND OTHERS v. ASSOCIATED BANKERS INSURANCE CO LTD AND OTHERS

CACV000083/1981

Consolidated actions under marine insurance policies. Re-amendment of Points of Defence to allege scuttling and fraud. Lateness of the reamendment and want of particularity. Striking out of allegations in the Amended Points of Defence for want of particularity. Order for ship's papers - whether allowable where no allegation of scuttling made in the Amended Points of Defence.

IN THE COURT OF APPEAL

CIVIL APPEAL
NO. 68 OF 1981

ON APPEAL FROM COMMERCIAL LIST
NO. 47 OF 1980

(1st Action)

1979, No. 4664

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellants
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Respondents
(Defendants)

________

(2nd Action)

1979, No. 4665

BETWEEN
LAERTES CORPORATION (a firm) Appellants
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Respondents
(Defendants)

________

(3rd Action)

1979, No. 4666

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellants
(Plaintiffs)
AND
OCEANIC UNDERWRITERS LIMITED Respondents
(Defendants)

_____________________________________________________

AND

IN THE COURT OF APPEAL

CIVIL APPEAL
NO. 83 OF 1981

ON APPEAL FROM COMMERCIAL LIST
NO. 47 OF 1980

(1st Action)

1979, No. 4664

BETWEEN
MARQUIS TRADING COMPANY (a firm) Respondents
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Appellants
(Defendants)

_________

(2nd Action)

1979, No. 4665

BETWEEN
LAERTES CORPORATION (a firm) Respondents
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Appellants
(Defendants)

________

(3rd Action)

1979, No. 4666

BETWEEN
MARQUIS TRADING COMPANY (a firm) Respondents
(Plaintiffs)
AND
OCEANIC UNDERWRITERS LIMITED Appellants
(Defendants)

____________________________________

AND

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 5 OF 1982

ON APPEAL FROM COMMERCIAL LIST
NO. 47 OF 1980

(1st Action)

1979, No. 4664

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellants
(Plaintiffs)
AND

ASSOCIATED BANKERS INSURANCE COMPANY LIMITED

 Respondents
(Defendants)

________

(2nd Action)

1979, No. 4665

BETWEEN
LAERTES CORPORATION (a firm) Appellants
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Respondents
(Defendants)

________

(3rd Potion)

1979, No. 4666

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellant
(Plaintiffs)
AND
OCEANIC UNDERWRITERS LIMITED Respondents
(Defendants)

___________________________________

AND

IN THE COURT OF APPEAL

CIVIL APPEAL No. 56 OF 1982

ON APPEAL FROM COMMERCIAL LIST
NO. 47 OF 1980

(1st Action)

1979, No. 4664

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellants
(Plaintiffs)
AND
ASSOCIATED BANKERS INSURANCE COMPANY LIMITED Respondents
(Defendants)

________

(2nd Action)

1979, No. 4665

BETWEEN
LAERTES CORPORATION (a firm) Appellants
(Plaintiffs)
AND

ASSOCIATED BANKERS INSURANCE COMPANY LIMITED

 Respondents
(Defendants)

________

(3rd Action)

1979, No. 4666

BETWEEN
MARQUIS TRADING COMPANY (a firm) Appellants
(Plaintiffs)
AND
OCEANIC UNDERWRITERS LIMITED Respondents
(Defendants)

___________________________________

Coram: Roberts, C.J., Silke and Barker, JJ.A.

Date: 4 June 1982

___________

JUDGMENT

___________

Barker, J.A.:

Background

1. In these consolidated actions there were before us four appeals, three by the Plaintiffs and one by the Defendants. However, at the outset Mr. Phillips, who appeared for the Plaintiffs, elected not to pursue Civil Appeal No. 68 of 1981.

2. The actions arise out of claims by the Plaintiffs, who are two closely associated firms, under marine insurance policies which they affected with the two Defendants. The Plaintiffs claim that they insured with the Defendants electronic goods of a total value of in the region of HK$5 million which were placed on board the ship "Amelia", due to sail from Singapore to Hong Kong; and that on the 12th November 1978, whilst the policies were in force, the goods became a total loss by the perils insured against in that the "Amelia" sank in heavy weather. The Defendants, who were notified of the Plaintiffs' claims by letter dated the 1st December 1978, proceeded to investigate them, but did not satisfy them.

3. Consequently, letters before action were sent by the Plaintiffs' solicitors to the Defendants on the 17th August 1979. By letter dated the 23rd October 1979 the Defendants' solicitors requested a great deal of further information and documentation from the Plaintiffs in relation not only to the "Amelia" but also to a ship called the "Starter". The supposed justification for the latter request was that the Plaintiffs in the present action allegedly shipped electronic goods on the "starter" from Hong Kong to four consignees in Singapore, by virtue of a C & F contract, the consignees effecting the insurance thereon. This ship was, apparently, abandoned by the master and crew as a total loss on the 30th August 1978. It did not in fact sink, and was salted by Chinese fishermen into Whampoa, China where it was found to be carrying virtually no cargo.

4. On legal advice, the Plaintiffs by their solicitors gave some, but by no means all, of the information and documents requested in relation to the "Amelia", but gave no information or documents in relation to the "Starter".

History of pleadings in actions

5. Specially endorsed grits were issued on the 22nd October 1979, and the Defendants asked for particulars and discovery before Defence, which were not forthcoming. Thereupon the Defendants took out summonses asking that the actions be transferred to the Commercial List and be consolidated, and that discovery be ordered under Order 72 Rule 10 of the Rules of the supreme Court (what is known as an "order for ship's papers"). The Plaintiffs meanwhile took out summonses under Order 14 of the aforesaid Rules, seeking summary judgment against the Defendants. All these summonses were heard by Zimmern J. on the 18th July 1980. He dismissed the Order 14 summons, transferred the actions to the Commercial List, ordered that the three actions be consolidated, ordered that the Defendants should deliver Points of Defence and adjourned the Defendants' application for discovery under Order 72 Rule 10 sine die with liberty to restore.

6. Points of Defence were served on the 18th September 1980. These put the Plaintiffs to proof of everything, and in particular that the goods were ever loaded on the "Amelia" and that "Amelia" was lost by perils of the sea. The Defendants alleged non-disclosure, inter alia, of the alleged shipments by the Plaintiffs on board the "Starter'', and (in paragraph 7) that there was no bona fide loss of the goods.

7. The Points of Defence did not allege scuttling of the "Amelia" nor that there was a conspiracy to defraud underwriters to which the Plaintiffs were parties. They did allege, as a particular of the no bona fide loss allegation, that the "Starter" was the subject matter of a conspiracy to defraud underwriters, but did not expressly allege that the plaintiffs were parties thereto. Consequently the Plaintiffs requested further and better particulars, which the Defendants on the 20th May 1981 were ordered by Zimmern J. to give. These were served on the 28th May 1981, expressly pleaded that the Plaintiffs were party to the alleged "Starter" conspiracy and gave certain other particulars which the Plaintiffs considered to be inadequate.

8. The Plaintiffs therefore applied to strike out paragraph 7 of the Points of the Defence. This application was heard on the morning of the 10th June 1981 when Zimmern J. struck out paragraph 7 and particular (ii) thereunder (which was the sub-paragraph which contained the "Starter" conspiracy allegation) but allowed sub-paragraph 7(1) to be transferred by amendment to paragraph 4. During the adjournment of that application, counsel for the Defendants drafted an amended paragraph 7, which in effect incorporated the further and better Particulars already served into the body of the pleadings. In the afternoon, he applied to Zimmern J. for leave to amend accordingly. Although the order as drawn up makes no reference to it, it is common ground that Zimmern J. refused leave. From the order to strike out and from the refusal of leave to amend, the Defendants now appeal.

9. The Defendants meanwhile had renewed the application for an Order for ship's papers under Order 72 Rule 10. It was, apparently, intended that this application would be heard at the same time as the application to strike cut but in fact it was heard subsequent thereto. On the 25th November 1981 Zimmern J., in a reasoned judgment, ordered the Plaintiffs to give certain categories of ship's papers. From that order the Plaintiffs appeal.

10. By summons dated the 7th day of April 1982 the Defendants sought leave to re-amend the Points of Defence, in the following respects, inter alia,

(a) to deny that the "Amelia" ever existed at all;

(b) to allege the wilful casting away of the "Amelia" in furtherance of a conspiracy to which the Plaintiffs were parties;

(c) to allege in
...

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