Pacific Electric Wire & Cable Co Ltd v Gold Global Ltd And Others

Judgment Date10 March 2009
Judgement NumberCACV351/2008
Citation[2009] 3 HKLRD 94
CourtCourt of Appeal (Hong Kong)
Subject MatterCivil Appeal
CACV000208C/2008 PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS

CACV 208/2008, cacv 210/2008, CACV 211/2008, CACV 212/2008,
cacv 351/2008 and cacv 352/2008

cacv 208/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 208 of 2008

(on appeal from HCA NO. 2763 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED Plaintiff
and
HARMUTTY LIMITED 1st Defendant
HADDOWE LIMITED 2nd Defendant
CASPARSON PROPERTIES LIMITED 3rd Defendant
HU HUNG CHIU (胡洪九) 4th Defendant
YIP CHI HUNG (葉稚雄) 5th Defendant
CHUNG CHE LING (鍾子陵) 6th Defendant
TUNG YU JEH (仝玉潔) 7th Defendant
SUN TAO TSUN (孫道存) 8th Defendant
TAM PUI NA, RAFIA (譚佩娜) 9th Defendant
WONG KUN TO (黃勤道) 10th Defendant
CHEUNG KWAN HUNG, ANTHONY
(張鈞鴻)
11th Defendant
AFTERVILLE LIMITED 12th Defendant
NEE SOON LIMITED 13th Defendant
SHOWGROUND LIMITED 14th Defendant
BERRIDALE DEVELOPMENTS LIMITED 15th Defendant
JUTECH INVESTMENTS LIMITED 16th Defendant
ALL DRAGON INTERNATIONAL LIMITED 17th Defendant
BLINCO ENTERPRISES LIMITED 18th Defendant
PATAGONIA LIMITED 19th Defendant
MA KAM FOOK, ROBERT (馬金福) 20th Defendant
HU SUN MAR LI (胡孫瑪琍) 21st Defendant

CACV 210/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 210 of 2008

(on appeal from HCA NO. 2203 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED Plaintiff
and
TEXAN MANAGEMENT LIMITED 1st Defendant
CLIPPER INVESTMENT LIMITED(FORMERLY KNOWN ASPACIFIC CAPITAL (INVESTMENT) LIMITED) 2nd Defendant
PACIFIC CAPITAL (ASIA) LIMITED 3rd Defendant
ALL DRAGON INTERNATIONAL LIMITED 4th Defendant
PCL HOLDINGS LIMITED(FORMERLY KNOWN ASPACIFIC CAPITAL (HOLDINGS) LIMITED) 5th Defendant
LAIDLAW PACIFIC FINANCIAL SERVICES(HOLDINGS) LIMITED(FORMERLY KNOWN ASPACIFIC CAPITAL FINANCIAL SERVICES(HOLDINGS) LIMITED) 6th Defendant
SUPER WISH LIMITED 7th Defendant
HU HUNG CHIU(胡洪九 8th Defendant
WONG KUN TO(黃勤道) 9th Defendant
CHEUNG KWAN HUNG, ANTHONY
(張鈞鴻)
10th Defendant
MA KAM FOOK, ROBERT(馬金褔) 11th Defendant
CHENG SHU WING(鄭樹榮) 12th Defendant
TUNG YU JEH(仝玉潔) 13th Defendant
SUN TAO TSUN(孫道存) 14th Defendant
PANG HONG(龐鴻) 15th Defendant

CACV 211/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 211 of 2008

(on appeal from HCA NO. 2746 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED Plaintiff
and
GOLD GLOBAL LIMITED 1st Defendant
PCL NOMINEES LIMITED 2nd Defendant
GREATEAM LIMITED 3rd Defendant
HU HUNG CHIU(胡洪九 4th Defendant
CHUNG CHE LING(鍾子陵) 5th Defendant
YIP CHI HUNG(葉稚雄) 6th Defendant
TAM, PUI NA, RAFIA(譚佩娜) 7th Defendant
HARMUTTY LIMITED 8th Defendant

CACV 212/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 212 of 2008

(on appeal from HCA NO. 2763 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED Plaintiff
and
HARMUTTY LIMITED 1st Defendant
HADDOWE LIMITED 2nd Defendant
CASPARSON PROPERTIES LIMITED 3rd Defendant
HU HUNG CHIU(胡洪九 4th Defendant
YIP CHI HUNG(葉稚雄) 5th Defendant
CHUNG CHE LING(鍾子陵) 6th Defendant
TUNG YU JEH(仝玉潔) 7th Defendant
SUN TAO TSUN(孫道存) 8th Defendant
TAM, PUI NA, RAFIA(譚佩娜) 9th Defendant
WONG KUN TO(黃勤道) 10th Defendant
CHEUNG KWAN HUNG, ANTHONY
(張鈞鴻)
11th Defendant
AFTERVILLE LIMITED 12th Defendant
NEE SOON LIMITED 13th Defendant
SHOWGROUND LIMITED 14th Defendant
BERRIDALE DEVELOPMENTS LIMITED 15th Defendant
JUTECH INVESTMENTS LIMITED 16th Defendant
ALL DRAGON INTERNATIONAL LIMITED 17th Defendant
BLINCO ENTERPRISES LIMITED 18th Defendant
PATAGONIA LIMITED 19th Defendant
MA KAM FOOK, ROBERT(馬金褔) 20th Defendant
HU SUN MAR LI(胡孫瑪琍) 21st Defendant

CACV 351/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 351 of 2008

(on appeal from HCA NO. 2746 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED

Plaintiff

and
GOLD GLOBAL LIMITED 1st Defendant
PCL NOMINEES LIMITED 2nd Defendant
GREATEAM LIMITED 3rd Defendant
HU HUNG CHIU(胡洪九 4th Defendant
CHUNG CHE LING(鍾子陵) 5th Defendant
YIP CHI HUNG(葉稚雄) 6th Defendant
TAM, PUI NA, RAFIA(譚佩娜) 7th Defendant
HARMUTTY LIMITED 8th Defendant

CACV 352/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 352 of 2008

(on appeal from HCA NO. 2763 of 2004)

________________________

BETWEEN

PACIFIC ELECTRIC WIRE & CABLE COMPANY LIMITED Plaintiff
and
HARMUTTY LIMITED 1st Defendant
HADDOWE LIMITED 2nd Defendant
CASPARSON PROPERTIES LIMITED 3rd Defendant
HU HUNG CHIU(胡洪九 4th Defendant
YIP CHI HUNG(葉稚雄) 5th Defendant
CHUNG CHE LING(鍾子陵) 6th Defendant
TUNG YU JEH(仝玉潔) 7th Defendant
SUN TAO TSUN(孫道存) 8th Defendant
TAM, PUI NA, RAFIA(譚佩娜) 9th Defendant
WONG KUN TO(黃勤道) 10th Defendant
CHEUNG KWAN HUNG, ANTHONY
(張鈞鴻)
11th Defendant
AFTERVILLE LIMITED 12th Defendant
NEE SOON LIMITED 13th Defendant
SHOWGROUND LIMITED 14th Defendant
BERRIDALE DEVELOPMENTS LIMITED 15th Defendant
JUTECH INVESTMENTS LIMITED 16th Defendant
ALL DRAGON INTERNATIONAL LIMITED 17th Defendant
BLINCO ENTERPRISES LIMITED 18th Defendant
PATAGONIA LIMITED 19th Defendant
MA KAM FOOK, ROBERT(馬金褔) 20th Defendant
HU SUN MAR LI(胡孫瑪琍) 21st Defendant

(Heard together)

Before: Hon Rogers VP and Le Pichon JA in Court

Dates of Hearing: 2 & 3 March 2009

Date of Judgment: 3 March 2009

Date of Handing Down Reasons for Judgment: 10 March 2009

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Rogers VP:

1. These were appeals from a judgment of Saunders J given on 18 January 2008. The matters before the judge were three applications summary judgment under Order 14 of the Rules of the High Court. After no less than 12 days hearing, the judge gave judgment in favour of the plaintiff. In September 2008 the judge heard applications that the costs of the action should be paid personally by the directors of some of the companies against whom judgment had been given. Those persons were a Mr Hu Hung Chiu, Mr William Yip Chi Hung and Mr Ben Chung Che Ling. Those persons had not been parties to the Order 14 proceedings.

2. Appeals were brought by all parties against whom judgment had been given and on this appeal Mr Hu also sought to intervene and appeal against the costs order that had been made against him.

3. This court allowed the appeals and set aside the orders on the basis that the actions included claims by the plaintiff based on allegations of fraud and, therefore, they did not fall within the terms of Order 14; the court, thus, had no jurisdiction to entertain applications summary judgment. The reasons were to be given in writing

Background

4. As already indicated, the hearing of the Order 14 application in the court below took 12 days. This court was informed that the plaintiff’s opening itself took some 5 days. Those facts, of themselves, demonstrate conclusively that the applications for summary judgment under Order 14 should not have been allowed to proceed. There is an adage that if the parties need to sit down in the course of an Order 14 application, the matter is not fit for summary judgment. Applications for summary judgment are only suitable where the court can be satisfied that not only is there no defence but there is no fairly arguable point to be argued on behalf of the defendant. The court cannot embark upon a mini-trial based on affidavit. Except in the most clear and blatant cases, it is impossible for a court to put itself in the position of having to make findings of fact. It should rarely be necessary for a plaintiff, in making an application for summary judgment, to do more than verify the statement of claim. If, thereafter, a defendant can show a triable issue that should, there and then, be an end to the application.

5. This court was informed that, in this case, far from simply verifying the statements of claim, the plaintiff’s application was supported by 10,000 pages of documents. On this appeal this court was presented with some 58 box files of documents, albeit, no doubt, there will be found numerous instances of duplication of documents in those bundles. In addition there were some 7 box files of authorities. The judgment below runs to nearly 80 pages. It is scarcely any exaggeration that any of these facts, again, on their own demonstrates the unsuitability of the cases for summary judgment.

6. Nevertheless, once judgment had been given this court was faced with the question of considering that judgment. In short it can be said that the plaintiff’s case is that its monies were used by the defendants to make investments which were represented by real estate in the guise of a substantial part of the South Horizons development in Aplichau and houses in the Shouson Hill area as well...

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