IN THE COURT OF APPEAL
1995, Nos. 171 & 190
|PT BANK PEMBANGUNAN INDONESIA (PERSERO)
|TAN EDDY TANSIL
(also known as Tan Tjoe Hong and Tan Tjoe Fuan) GOLDEN STEP DEVELOPMENT LIMITED
|GOLDEN KEY GROUP (HONG KONG) LIMITED
|GOLDEN KEY INTERNATIONAL
|WONG YUK YING
|SPEED STAR TRADING LIMITED
|HONOUR GOLD TRADING LIMITED
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
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 Nicolas Browne-Wilkinson V-C. giving the leading judgment in the case of In re Jokai Tea Holdings Ltd  1 W.L.R. 1196 when he said this at p. 1203 B:-
"In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an "unless" order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."
10. As I see it, that test has not been changed by anything that was said in the case of Carribean General Insurance v. Frizzel  2 Lloyd's Rep. 32 once the context in which the statements in that case were made has been taken properly into account.
11. Here the extraneous circumstances were, shortly stated, these. The 1st defendant was in prison in Indonesia. In the absence of a special permit from the Indonesian courts, his Hong Kong legal advisers could not visit him for the purpose of preparing an affidavit and no notary public could visit him for the purpose of the swearing of the same. There was delay in the obtaining of such a permit. None was obtained until only two clear days before the expiry of the deadline. And, as it turned out, an affidavit was available for filing within the extended period for which Mr Justice Barnett was asked but had refused.
12. For the 1st defendant, Mr Warren Chan, Q.C. has conceded that the 1st defendant's Hong Kong solicitors, and possibly his Indonesian lawyers as well, were incompetent in not managing to obtain a permit earlier. But that, he says, is not the 1st defendant's own fault and should not be visited upon him if that can be avoided without injustice to the other side. In such a situation, there is, as I pointed out in the course of the argument, the well-known statement of Lord Denning M.R. in Doyle v. Olby (Ironmongers) Ltd  2 QB 158 where the Master of the Rolls said (at p....