Page
380
SUPREME COURT.
Monday, May 3rd.
IN APPELLATE JURISDICTION.
(BEFORE THE FULL COURT.)
ANOTHER NEW BARRISTER.
Sir Henry Berkeley, before the business of the day was proceeded with, said he had pleasure in presenting to his Lordship the Chief Justice Mr. E. Pottar of the English bar who desired to be admitted and enrolled as a barrister in this Court. Counsel stated that he had seen Mr. Pottar's certificate of call to Gray's Inn, and as everything was in order, he moved that Mr. Pottar be approved, enrolled and admitted.
THE HONGKONG WEEKLY PRESS AND
His Lordship-Mr. Pottar, you are the third barrister I have admitted to this Court during the last month. For myself I can only
say that I
there is believe
room for
all. I most sincerely trust that if the result of this somewhat vigorous attack on the Temple of Fortune is not as successful as might be expected, there may hereafter be no ing at the bar."
AN APPEAL CASE.
"moan-
In an appeal which came before the Full Court yesterday the Hip On Exchange and Loan Co. Ld., and the Hongkong and Manila Yuen Shing Exchange and Trading Co., Ld. were appellants, Li Po Yung being respondent. The appellants moved to reverse the judgment of the Chief Justice in an original action in so far as it directed, (1) That the sale by the appellants to Kwok Yik Ting of certain property, the subject of a counterclaim, be set aside, and that the consequent entries be made in the Land Office Register; and (2) That the appellant's claim, as plaintiffs in the action, be dismissed as against the respondent Li Po Yung with costs; and (3) That the appellants and Kwok Yik Ting (the defendant to the counter claim) pay to Li Po Yung his costs of the counter claim.
The defendant to the counter claim, Kwok Yik Ting, asked that the judgment, whereby it was directed that the sale of the properties from the Hip On Insurance Co., Ltd., to the appel- lants be set aside, be reversed so far as it declared such sale to be invalid.
Li Po Yung appealed on the ground that the release of Li Po Kam from liability under the mortgage also released him.
The Hip On and Yuen Shing Companies were represented by Hon. Mr. H. E. Pollock, K.C., instructed by Mr. H. L. Dennys (of Messrs. Dennys and Bowley); Kwok Yik Ting was represented by Hon. Sir Henry Berkeley, K.C., who was instructed by Mr. R. D. Atkinson (of Messrs. Deacon, Looker and Deacon); Li Po Yung was represented by Messrs. M. W. Slade and E. Potter who were instructed by Mr. F. Paget Hett (of Messrs. Brutton and Hett). Li Po Kam was represented by Mr. H. G. Calthrop, who was instructed by Mr. C.D. Wilkinson (of Messrs. Wilkinson and Grist).
Mr. Pollock stated that he was not appealing from the Chief Justice's judgment as regarded Li Po Kam. This was only an appeal with regard to Li Po Yung,
Mr. Stade submitted that the appeal could not proceed in the absence of Li Po Kam. The latter and Li Po Yung were joint mortgagors of Marine Lot 57. The position which was decided in the Court below to be the ultimate position of the parties was that Li Po Kam and Li Po Yung were-vis-a-vis of the two companies. Unless Li Po Kam was added as a party to this appeal, there would be hopeless confusion.
Mr. Pollock submitted that no necessity had been made out why Li Po Kam should be joined as a party.
The Chief Justice-How could we make an order for redemption, Li Po Kam not being a party?
Mr. Pollock-The order for redemption would be an order against Li Po Yung. If your Lord- ships will kindly refer to the mortgage deeds you will see that the mortgage is a joint and several covenant, and on a joint and several covenant either party can be sued.
Mr. Blade-And the other has the right to bring the other in.
The Chief Justice-The argument of Mr. Pollock and Sir Henry Berkeley all the way
through was that the final order should be for redemption How could we allow one party to redeem without the other?
Mr. Pollock-There is no question of Li Po Kam's share of the mortgaged property being released or set free from liability.
The Chief Justice-That makes it all the more reason why he should be a party.
After the Court had considered the question further, the Chief Justice announced that they both considered that Li Po Kam should be a party to the action.
Sir Henry Berkeley said his client knew only Li Po Yung in the proceedings, but he thought it would be well that Li Po Kam should be joined.
The Chief Justice-We think that as Li Po
Kam was a defendant in the first place, he must be a party now, more especially on the general ground of the question of redemption.
Mr. Slade-If he is made a party, his solicitor might be allowed to instruct some one on his behalf. He has some very active interests.
The Chief Justice-It will be sufficient if he
this afternoon appears
Mr. Pollock then proceeded to quote from the Judgment of the Chief Justice in the Court below, and submitted that this sale must be treated as a sale by the corporation. It could not be treated as a sale by the individual members of the corporation. Whether by the managers or the directors the negotiations took place, the vendors were the company. He submitted that the managers could not be treated as the mortgagees.
When the Court sat after the tiffin adjourn ment,
Mr. Calthrop, who was instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist), said he appeared on behalf of Li Po Kam. He understood that he had been made a respondent in the appeal, and on this point he wished to point out that they were in the position of respondents to {LI1 appeal brought on judgment delivered about September 7th last year. More than six months had elapsed since that appeal, and, so far as his client as concerned, it could not proceed unless the appellants were granted special leave by the Full ourt.
Д
The Chief Justice-That is included in the order this morning.
Mr. Calthrop-You cannot make that in my absence, as special grounds must be put forward in order to appeal against the respondents when out of time. Before an appeal proceeds against me, I am entitled to take the point that they are out of time, and that special leave cannot be granted when an appellant is out of time except under special circumstances.
The Chief Justice--I think these are very special circumstances.
Mr. Calthrop-Not joining me is not a ground for granting special leave. Before your Lordships grant special leave the grounds should be set forward. I should have been brought here and told what those grounds
were.
The Chief Justice-It was rather sprung upon them.
Mr. Calthrop-They have not applied for special leave.
The Chief Justice-All that is comprised in our order, and whether they applied or not, I think we have power to make them respondents.
Mr. Calthrop-There are cases in which it has been held that a mistake by counsel does not constitute a special circumstance for appeal. The Chief Justice The solicitor was present this morning.
Mr. Calthrop He had no right of audience. Counsel then quoted authorities dealing with special circumstances, and stated that in the present case the appellants were very nearly eight months before they made this application. The Chief Justice-They didn't make the application.
Mr. Calthrop-If they don't want to join us we don't mind.
Mr. Pollock-We don't
Mr. Slade Then I ask that the appeal be dismissed at once.
The Chief Justice The Court joined them. The judgment in this appeal may affect the order you formerly obtained.
Mr. Calthrop-It seems to me that whatever the result of the appeal, it will not benefit
|
[May 10, 1909. - them, for I am entitled to the equity of redemption.
The Chief Justice-The judgment you got in the action is not appealed against. I don't know whether we shall want to hear you; we said we only wanted to see you.
Mr. Calthrop remarked that he was satisfied as long as his rights were not affected.
Mr. Pollock then continued to deal with the evidence taken in the original action, and the hearing was adjourned.
Tuesday, May 4th.
When the Court resumed Mr. Pollock com- pleted his argument, dealing with the question of costs.
Mr. Slade contended that there was no right of appeal for Mr. Pollock on the point of costs, without leave.
Mr. Pollock said they were not bringing the other side into Court simply on a question of costs.
The Chief Justice stated that the point was one which the Court wished to consider.
Sir Henry Berkeley said he represented the purchaser at the sale by the mortgagee vendors It was quite obvious under their power of sale. on this appeal, if the Court should be of opinion that the Court below made an erroneous decree, that this Court as part of its decree could give costs to the side it thought ought to have them. This was not an appeal on the question of costs, but the Court should have power to make an order as would be just with such regard to them. The Hip On and Yuen Companies were mort- Shing Insurance gagees of a lot of land known as No. 57. Li Po Yung and Li Po Kam were the owners and mortgagors of that lot, which was sold under the power of sale in the mortgage. The managers of Hip On and the Yuen Shing conducted the negotiations for the sale of the property, the result of these negotiations being that the property was sold to Mr. Kwok Yik Ting for $180,000. To acquire the property and develop it Mr. Kwok Yik Ting raised a sum of money by way of mortgage on lot No. 57 from the Hongkong Fire Insurance Co. After the sale was completed by Mr. Kwok in his own name he registered in the Land Office a declaration to the effect that he had bought the property, not for himself only, but for one Tam Sze Kong, Ng Li Hing and some others. Tam and Ng, the persons mentioned in the declaration of trust, were the persons to whom he had referred as being the mana- gers of the mortgage companies. The sale to Mr. Kwok Yik Ting took place in October 31st, 1906. In February 1907, the Hip On and the Yuen Shing sued Li Po Yung and Li Po Kam for the balance due on the mortgage of lot 57, after giving credit for the sum of $180,000 which had been received by the sale. In July 1907 Li Po Yung alone filed a counter claim for the balance due on the mortgage, to which he made Mr. Kwok Yik Ting one of the de- In that counter claim the counter fendants. claimants asked two things, the material one being that the sale to Kwok Yik Ting by the Hip On should be set aside, on the ground that the sale was in effect a sale by the Hip On to themselves as mortgagees, and that it was a gross under value. At the trial the Court found that the sale had been negotiated by the man- agers of the Hip On, and the sale was appreciably
under value.
counter
In short, upon the facts as stated the Court came to the conclusion that the sale should be set aside as against the, claimant Kwok Yik Ting on the grounds that the sale had been negotiated by the managers, and that fact was sufficient to entitle the owner and mortgagees to object to the bona fides of the sale. Counsel was content to abide by the judgment of the Court setting aside the sale, if the Court coupled with its decree the conditions which he submitted to the Court below, and which he desired to submit afresh to this Court.
He submitted, assuming the view taken by the Chief Justice in the Court below to be right, that upon the facts before him the sale ought to be set aside if the mortgagors (owners) so desired; the only persons who could object were the mortgagors, and the sale could be set aside on their recouping the purchaser all iums. properly expended by him in developing
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