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Pt Bank Pembangunan Indonesia (Persero) v Tan Eddy Tansil And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date14 November 1995
Citation[1997] HKLRD 57
Judgement NumberCACV171/1995
Subject MatterCivil Appeal
CACV000171/1995 PT BANK PEMBANGUNAN INDONESIA (PERSERO) v. TAN EDDY TANSIL AND OTHERS

IN THE COURT OF APPEAL

1995, Nos. 171 & 190
(Civil)

____________

BETWEEN
PT BANK PEMBANGUNAN INDONESIA (PERSERO) Plaintiff
(Respondent)
AND
TAN EDDY TANSIL
(also known as Tan Tjoe Hong and Tan Tjoe Fuan) GOLDEN STEP DEVELOPMENT LIMITED		 1st Defendant
(Appellant)
GOLDEN KEY GROUP (HONG KONG) LIMITED 2nd Defendant
GOLDEN KEY INTERNATIONAL 3rd Defendant
FINANCE LIMITED 4th Defendant
WONG YUK YING 5th Defendant
SPEED STAR TRADING LIMITED 6th Defendant
HONOUR GOLD TRADING LIMITED 7th Defendant

____________

Coram: Bokhary, Godfrey and Liu, JJ.A. in Court

Date of hearing: 14 November 1995

Date of judgment: 14 November 1995

________________

J U D G M E N T

________________

Bokhary, J.A.:

1. By an Order made on July 5 this year, but wrongly dated the 20 of that month, Mr Justice Yam ordered that the plaintiff, a bank, be at liberty to enter judgment against the 1st defendant, a businessman, unless he complied by 4.00 p.m. on August 2 this year with paragraph 1 of the Order made by Mr Justice Findlay on May 12 this year, the effect of which paragraph had been to require him, the 1st defendant, to file within 28 days of May 10 this year an affidavit making and authorising disclosure in aid of a Mareva injunction. The effect of the unless order was to give the 1st defendant a second 28 days' extension which second extension had been opposed, an earlier 28 days' extension having been ordered by consent by Mr Justice Waung on June 6 this year.

2. An application for a third extension, also of 28 days, to file such an affidavit was heard by Mr Justice Barnett on the very day on which time for filing it was due to expire, namely August 2 this year. Some time before 4.00 p.m. on that day, which was the hour at which time was going to expire, Mr Justice Barnett refused an extension. He also refused to stay the unless order pending an appeal from his own Order.

3. On the same day, the 1st defendant applied to a single judge of this Court for such a stay. And the Chief Justice, who heard the application, likewise refused to stay the unless order.

4. The deadline for filing a disclosure affidavit having passed without any having been filed, the plaintiff, by a notice of motion taken out on August 17 this year and returnable before Mr Justice Findlay on the 25th of that month, moved on the basis of such default for judgment against the 1st defendant for US$351.645 million or US$309.54 million or US$297.1 million.

5. When the motion came before him on the return day, Mr Justice Findlay refused the 1st defendant's application for an adjournment of the same until after the determination of his appeal against Mr Justice Barnett's refusal of an extension.

6. Having refused an adjournment, Mr Justice Findlay heard the motion and reserved his decision to the 30th of the month: when he entered judgment for the plaintiff against the 1st defendant in the sum of US$282 million and such further sum, taking into account that sum of US$282 million, by way of damages to be assessed.

7. The 1st defendant now appeals to this Court against Mr Justice Barnett's refusal of an extension and Mr Justice Findlay's refusal of an adjournment. He says that if he succeeds on the extension, then he must succeed on the adjournment too. At the same time, he concedes that if he fails on the extension, than he must fail on the adjournment too.

8. Mr Justice Barnett's reasons are contained in a note prepared by both sides and approved by him. They read as follows:

"I understand the difficulties faced by the 1st defendant in conducting the proceedings (a) from another country and (b) from in prison. But, I am not persuaded that either he or his advisors have demonstrated that degree of urgency that was required since Mr Justice Findlay gave direction on the 13th May and which were emphasised Mr Justice Yam on 5th July - there has been no activity apart from a metaphorical wringing of hands.

I dismiss the summons with costs."

9. The test to be applied here is, in my judgment, the one laid down by Sir...

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