Union V-tex Shirt Factory Ltd v Union V-tex Realty Ltd And Others

CourtCourt of Appeal (Hong Kong)
Judgment Date29 Jul 1983
Judgement NumberCACV48/1983
SubjectCivil Appeal
CACV000048/1983 UNION V-TEX SHIRT FACTORY LTD v. UNION V-TEX REALTY LTD AND OTHERS

CACV000048/1983

IN THE COURT OF APPEAL

1983 No.48

(Civil)

BETWEEN:

(Action No.219 of 1976)

UNION V-TEX SHIRT FACTORY LIMITED Plaintiff

and

UNION V-TEX REALTY LIMITED Defendant
THE PERSONAL REPRESENTATIVES OF
WONG PING SHAN

1st Third Party

WONG CHAN KAM CHI 2nd Third Party
ALEX WAI TSE HANG 3rd Third Party
WANG CHO KI 4th Third Party
CHU KA KIM 5th Third Party
LEE KWOK YAT 6th Third Party
LAU, CHAN & KO(a firm) 7th Third Party

BETWEEN:

(Action No. 602 of 1976)

UNION (V-TEX) SHIRT FACTORY LIMITED Plaintiff

and

THE PERSONAL REPRESENTATIVES OF
WONG PING SHAN

1st Defendant

WONG CHAN KAM CHI 2nd Defendant
ALEX WAI TSE HANG 3rd Defendant
WANG CHO KI 4th Defendant
CHU KA KIM 5th Defendant
LEE KWOK YAT 6th Defendant

Coram: Sir Alan Huggins, V P., Yang & Fuad, JJ.A.

Date of Judgment: 29th July, 1983.

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REASONS

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

Sir Alan Huggins, V.-P.:

1. Early in February 1973 the Plaintiff company purported to convey to Union V-Tex Realty Ltd. ("Realty'") two parcels of land. Realty was a company which was incorporated on 2nd February 1973 with an issued share capital of $9,000,000.00 and which on 14th February 1973 issued a prospectus for a new issue of 3,000,000 shares of $1 each at par. The Plaintiff was a private company wholly owned by Mr. Wong Ping-shan, his wife and their son. Mr. Wong was the chairman and managing director. His wife and the person who has been described as the "6th Defendant" in these proceedings were among the directors. Mr. Wong, his wife and the other remaining Defendants were appointed to the board of directors of Realty on 7th February 1973. Mr. Wong died in October 1973 and his wife carried on the Plaintiff's business until she left Hong Kong some time in 1974. The business of the Plaintiff was deteriorating and the company went into liquidation in April 1975.

2. The liquidator came to the conclusion that the conveyances of the two parcels of land had been fraudulent and in 1976 he instituted an action against Realty. Two months' later he started a second action against the personal representatives of Mr. Wong, against his wife, and against four other individuals arid two companies all of whom were directors of Realty. The Statement of Claim which was eventually filed also alleged conspiracy to defraud the creditors of the Plaintiff. Proceedings against the two companies which were directors have been discontinued. The two actions were consolidated and the consolidated action pursued its painful way until, early this year, the 5th Defendant applied to have the action against him dismissed for want of prosecution. Similar applications by Realty and by the 3rd, 4th and 5th Defendants followed and it is with these applications that we are concerned. The judge found that there had been four periods of inordinate and inexcusable delay, totalling between 21/2 and 3 years, but he came to the conclusion that the applicants had not been sufficiently prejudiced to justify dismissing the actions. The Defendants appealed I think it may be of assistance to set out at the beginning a time-table of the important events:

25th January 1973 Valuation of the properties.
February 1973 Conveyances executed.
2nd February 1973 Incorporation of Realty
7th February 1973 Appointment of the 1st to 6th Defendants as directors of Realty.
14th February 1973 Prospectus
October 1973 1st Defendant died.
1974 2nd Defendant Peeves Hong Kong.
18th April 1975 Plaintiff company in liquidation.
30th January 1976 Writ in action 1976 No. 219.
26th March 1976 Writ in action 1976 No. 602.
12th October 1978 Order for consolidation.
19th October 1978 1st consolidated statement of claim.
8th January 1979 Last defence filed.
8th January 1980 Application to set down filed.
3rd March 1980 5th Defendant's summons for specific discovery.
21st October 1981 Amended consolidated statement of claim.
January 1982 Limitation period would, in any event, have come to an end.
8th March, 1982 Restoration of summons of 3rd March 1980 for specific discovery.
9th March 1982 Reply filed.
16th September 1982 Order against Plaintiff for specific discovery.
7th October 1982 Time for compliance with order for discovery expired.
13th January 1983 (a) Purported compliance with order for discovery.
(b) Application to set down.
17th January 1983 Letter to the 5th Defendant's solicitors which is said to have triggered off application to strike out.
20th January 1983 5th Defendant's summons to strike out.
27th January 1983 3rd and 4th Defendants' summons to strike out.
2nd February 1983 6th Defendant's summons to strike out.
7th February 1983 Application for date of hearing filed.
28th February 1983 Date fixed for hearing in October 1983.
12th March 1983 Realty's summons to strike out.
31st March 1983 Judge refuses to dismiss actions.

3. The four periods of inordinate and inexcusable delay found by the judge were:

1. From the issue of the second writ on 26th March 1976 to the service of the first consolidated statement of claim on 19th October 1978. The judge said that he found there was an excuse which went no later than the end of 1976 and held that approximately 18 months were wasted.

2. From the service of the last defence (by the 6th Defendant) on 8th January 1979 to the service of the amended consolidated statement of claim on 21st October 1981. The judge held that approximately 10 months were wasted.

3. From the filing of the amended consolidated statement of claim on 21st October 1981 to the filing of the reply erg 9th March 1982. The Plaintiff was approximately 4 months out o f time.

4. From the expiry of the tie allowed by the order for specific discovery on 7th October 1982 until the compliance or purported compliance with the order on 13th January 1983. That was approximately 3 months.

These findings were not challenged save to this extent, that by Respondent's Notices the Plaintiff has sought to show(A)that Realty had waived and/or acquiesced in all...

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