Mr. Justice Litton PJ
These are consolidated appeals from proceedings in the High Court entitled originally HCA No. 1034/97 and HCMP No. 326/97.
The issues essentially are very simple, but have unfortunately got ensnared in procedural tangles. In the process, they have become twisted out of shape. It falls upon us as the final appellate court to disentangle them for the first time.
THE BACKGROUND FACTS
The facts, stripped down to bare bones, are these. A joint venture company called Team Base Development Ltd ("Team Base") was formed for the purpose of acquiring and redeveloping a property in Repulse Bay. The company was owned as to 80% of its shareholding by Roe Investment Ltd ("Roe") and 20% by Unionix Development Ltd ("Unionix").
By a Shareholders' Agreement dated 7 October 1996 Roe and Unionix undertook to make substantial shareholders' loans to the company. Unionix was to be the project manager for the redevelopment and the sole agent for the sale of units in the new building. Further, under clause 12, Roe gave to Unionix an option to purchase its entire shareholding and to take over its loans, upon the terms set out in that clause. The option was exercisable only once, in respect of all of Roe's shares and loans, and lapsed after one year (on 6 October 1997). Clause 12.05 provided that upon service of an "Option Notice" Roe was bound to sell to Unionix its shareholding and loans; completion of the transaction to take place at 12 noon on the seventh business day following service of the Option Notice. Roe's holding company Kowloon Development Co. Ltd ("Kowloon Development") was the guarantor of Roe's obligations under that agreement.
Unionix was wholly-owned by Mr. Ko Fei who held the shares in his own name and in the name of a nominee company Asia Corporate Services Ltd. On 28 December 1996 Mr. Ko entered into a "memorandum of agreement" to sell his entire shareholding in Unionix to Prince Good Ltd, together with his shareholder's loans, completion to take place on or before 3 January 1997. Under the memorandum Mr. Ko undertook, pending completion, to procure Team Base to maintain the Repulse Bay property in substantially the same condition as at the date of the memorandum and to give to Prince Good all information concerning the property and the project for its redevelopment as might be reasonably required. Mr. Ko also undertook to procure a meeting with the other parties to the Shareholders' Agreement with a view to facilitating Prince Good's take-over of the management of Unionix and its role as the project manager and sales agent of the redevelopment.
On 13 January 1997 the parties entered into a supplemental agreement the effect of which was to postpone the completion of the sale of the shares in Unionix by Mr. Ko to 20 January 1997, and to vary the amount of the loan to be taken over by Prince Good. On the same day Ko signed letters of resignation as director of Unionix and Team Base; officers of Prince Good were then appointed as directors of Unionix in his place.
On 14 January Messrs Siao, Wen & Leung ("SW&L") wrote to Roe as solicitors for Prince Good seeking a meeting with Roe's directors. They told Roe that Prince Good had bought the entire shareholding in Unionix subject to a "due diligence study" of the affairs of Unionix, Team Base and the title to the Repulse Bay property and that the relevant transfer documents had been signed in escrow pending completion of that study.
On the same day Messrs Van Langenberg & Lau solicitors for Mr. Ko wrote to Kowloon Development (Roe's holding company), copying the letter to SW&L, saying that Ko had transferred the entire issued shares of Unionix to Prince Good and that Prince Good would get in touch with them to appoint directors for Team Base in place of Mr. Ko.
On 17 January SW&L, as solicitors for Unionix, wrote to Team Base saying that a representative of their client would attend at Team Base's office to peruse and take copies of documents relating to the property and its redevelopment and also of Team Base's accounts and records.
On 18 January Team Base delivered the title deeds to the Repulse Bay property to SW&L for perusal.
On 20 January completion of the purchase of the shares in Unionix took place. On the same day SW&L, as solicitors for Unionix, gave notice to Roe under clause 12 of the Shareholders Agreement to exercise the option to acquire Roe's shareholding and loans in Team Base, completion to take place at 12 noon on 28 January 1997.
So far, things went smoothly for the parties. On the face of it the option notice complied with the contractual requirements. It was given by solicitors on behalf of Unionix, on the instructions of the new board; by that notice they themselves impliedly warranted that they had the company's authority so to act.
But clouds soon appeared on the horizon. On about 23 January Messrs Van Langenberg & Lau approached Roe offering on Mr. Ko's behalf to sell his shareholding in Unionix to Roe. On 24 January those solicitors wrote to SW&L and referred to a meeting between their "respective clients" on 13 January where, they averred, it was agreed that if Ko repaid to Prince Good a sum of "HK$140 odd million together with the agreed interest" on or before 27 January 1997 then the various documents having the effect of transferring the shares, the loans and managerial control of Unionix to Prince Good would become "wholly null and void and unenforceable". The letter went on to say that Mr. Ko was prepared to repay the indebtedness by the due date. SW&L replied on the same day denying any such agreement and, among other things, referred to clause 18 of the memorandum of 28 December 1996 whereby the parties specifically agreed that the memorandum constituted the whole agreement between the parties.
On the same day Messrs Van Langenberg & Lau wrote to Roe purporting to act for Mr. Ko and Unionix, asking Roe to withhold from taking any steps pending "clarifying the agreement .... as to the revocability of the transfer of [the] entire shareholding of Unionix to the client of Messrs. Siao Wen & Leung".
On 27 January 1997 Roe's solicitors wrote to SW&L and Messrs Van Langenberg & Lau saying that the conflicting claims of the two firms, both stating that they acted on the instructions of Unionix, had put Roe in "difficulty and confusion" and sought proof of board control of Unionix.
SW&L responded to that request the following day (28 January) by supplying copies of the resignation letters and similar documents signed by Ko. Messrs Van Langenberg & Lau also replied on 28 January enclosing copies of letters they had previously written to SW&L and repeated Mr. Ko's assertion that the transfer of his shareholding in Unionix to Prince Good had been "revoked" and that he (Mr. Ko) remained a director of Unionix.
On the afternoon of 28 January there was a meeting in Roe's offices attended by (among others) solicitors representing Roe, Prince Good and Ko. SW&L were pressing for completion and had in their hands a cashier order for $249,678,325 in payment for Roe's shares and loans pursuant to the exercise of the option. Ko's solicitors however insisted that Ko controlled Unionix as its sole beneficial owner and would sue if Roe should complete. Roe asked if Prince Good was prepared to give an indemnity to cover Roe's liability arising from the transfer of the shares over Ko's objections but Prince Good said No. In these circumstances no completion took place.
On 29 January 1997 SW&L, on Unionix's behalf, issued a writ in the High Court, HCA 1034/97, against Roe and its guarantor Kowloon Development seeking specific performance and "further or alternatively damages".
On the next day, 30 January, Roe's solicitors took out an originating summons in the High Court, MP 326/97, purportedly under Order 17 r.2 of the Rules of the Supreme Court, naming Roe as the plaintiff, Prince Good as 1st defendant, Mr. Ko as 2nd defendant and Unionix as 3rd defendant. In paragraph 1 Roe sought an order that Prince Good and Mr. Ko "do appear to state the nature and particular (sic) of their claim as to the following matters":
their right to "represent" Unionix in connection with the exercise of the option under the Shareholders' Agreement;
Roe's obligation "to execute an Instrument of Transfer transferring [Roe's] shares in .... Team Base .... to Unionix ....";
Whether the option had been validly exercised by SW&L's letter of 20 January 1997.
Paragraph 3 of the relief sought a declaration that the option had been validly exercised by Unionix and an order that Mr. Ko should indemnify Roe against all "claims, loss, damage, expense and costs incurred or suffered" by Roe as a result of Mr. Ko's claim that the option had not been validly exercised.
Paragraph 4 is formulated as an alternative to paragraph 3. It sought a declaration that the option had not been validly exercised and an order for indemnity against Prince Good "as a result of the claim by [Prince Good] purporting to have validly exercised the option on behalf of [Unionix]."
It is plain that whatever the nature of the proceedings in MP 326/97 might be, they are not interpleader proceedings properly constituted under Order 17 r.1. There was no question of "two or more persons" having made "adverse claims" to any debt money or property (tangible or intangible) held by Roe for which it could have obtained interpleader relief under Order 17. The property held by Roe was its 80% shareholding in Team Base and the loans appearing in Team Base's books. No one was making adverse claims to those properties. The real question, as far as Roe was concerned, was simply whether SW&L in purporting to exercise the option on Unionix's behalf by its letter of 20 January 1997 was duly authorized so to act. As to this, it depended ultimately on who lawfully controlled Unionix : Prince Good or Ko: Not an issue apt to be resolved in interpleader proceedings. Be that as it may, no steps were taken by Prince Good (1st defendant in those proceedings) to have the originating summons struck out.
On 20 February 1997 a third set of proceedings were instituted in the High Court : CL33/97, by Prince Good against Mr. Ko as the 1st defendant and his nominee company Asia Corporate Services Ltd as the 2nd defendant seeking a declaration that Mr. Ko had irrevocably transferred to Prince Good his shares in Unionix and an order that Ko should pay to Prince Good a balance of sums owing under the memorandum of agreement dated 28 December 1996.
Shortly thereafter Ko began to blow hot and cold. On 3 March he wrote to Kowloon Development affirming the agreement to transfer his shares in Unionix to Prince Good. There were discussions between the parties for settlement of the 3 sets of proceedings, in consequence of which CL 33/97 was discontinued. Ko then resiled once more; the discussions came to nothing and Prince Good reinstituted the action in the Commercial List, now numbered CL 63/97.
All three matters went before Cheung J on 28 May 1997 when an order by consent was made to this effect:
In respect of CL 63/97, an order for speedy trial, with consequential directions.
In respect of HCMP 326/97, the trial of issues as between Prince Good and Ko as to:
who of Prince Good and Ko "should be held entitled to represent Unionix .... in connection with the exercise or purported exercise of [the] option ....";
whether the option to acquire Roe's shares in Team Base had been validly exercised by SW&L's letter of 20 January 1997.
The issues in HCMP 326/97 were to be tried at the same time as CL 63/97 and all parties to be bound by the outcome of the trial of those issues. Roe was "excused" from further participation in the proceedings in MP 326/97. Costs were reserved, with liberty to all parties to apply for costs and "other consequential declaratory orders" against each other.
In respect of High Court Action 1034/97 this was stayed pending the outcome of the trial of CL 63/97 and the issues in MP 326/97, with costs reserved.
CL 63/97 and the issues in MP 326/97 went before Godfrey JA (sitting as an additional judge of the Court of First Instance) in August 1997. By his judgment of 28 August 1997 he rejected all of Ko's claims, gave judgment in Prince Good's favour, thus confirming the legal validity of the option notice served by SW&L on Unionix's behalf. He made an order for costs against Ko and Asia Corporate Services Ltd (Ko's nominee company) in Prince Good's favour in CL 63/97, but left the matter of costs open in MP 326/97.
Following Godfrey JA's judgment of 28 August 1997 arrangements were made for completion of the transfers pursuant to the option notice. This duly took place on 7 October 1997.
In April 1998 Unionix (now under Prince Good's undisputed control) took out a summons in HCA 1034/97 for:
lifting of the stay imposed by Cheung J's consent order of 28 May 1997;
summary judgment for damages against Roe for breach of the Shareholders' Agreement arising from the delay in transferring the shares pursuant to the exercise of the option : There was later a separate application to amend the writ to elaborate upon the claim for damages and to seek damages against Kowloon Development as the guarantor of Roe's liability under the Shareholder's Agreement.
In May 1998 Prince Good and Unionix took out a summons in HCMP 326/97 for the costs incurred by them in those proceedings to be paid by Roe, alternatively Ko.
These matters were heard by Yam J in July and by his judgment of 20 August 1998 he made orders to the following effect:
In respect of the application of May 1998 by Prince Good and Unionix for their costs, that was dismissed with costs to Roe.
Roe's costs incurred in respect of the interpleader summons (HCMP 326/97) was ordered to be paid by Ko, failing which by Prince Good.
HCA 1034/97 to be stayed permanently: Consequently Unionix's application to lift the stay and amend the writ was dismissed with costs to Roe.
All costs and liability for costs ordered to be paid by Prince Good and/or Unionix to be indemnified by Ko.
As to (a) above [see par 27. a], Prince Good had plainly incurred considerable legal costs in fighting the two issues in HCMP 326/97. The proceedings lasted 4 days before Godfrey JA in August 1997 and Prince Good was represented by leading and junior counsel. Godfrey JA had made no order for costs against Ko, the losing party in respect of those issues, leaving the matter open. The question before Yam J therefore was whether Prince Good's costs should be paid by Roe, who had taken out those proceedings as plaintiff, and had then dropped out, agreeing to be bound by the outcome of the trial of the two issues as between Prince Good and Ko. By the time Yam J dealt with the question of costs - nearly a year after Godfrey JA had resolved the issues against Ko and confirmed by his judgment the legal validity of the option notice - Ko had disappeared from the scene. An order for costs to be paid by Ko was unlikely to bear fruit. The judge approached the matter thus :
The first issue to be decided is whether Roe was right and proper to take out an interpleader summons pursuant to Order 17.
The judge found in Roe's favour on this issue. He said:
Both Unionix and Prince [Good] upon hearing of the Summons before Cheung J did not argue that the Interpleader Summons should be dismissed or summarily determined in their favour but eventually agreed to a consent order whereby issues between Prince [Good] and Ko were stated and directions were given for such issues to be tried .... the parties by agreeing to the Consent Order, including Prince [Good] and Ko, had agreed and accepted that there were competing claims which should be tried between Prince [Good] and Ko. They are therefore estopped from denying that the Interpleader Summons had been properly taken out.
As can be seen, the judge was inclined to take a broad approach to the question of who should bear the burden of Prince Good and Unionix's costs incurred in resolving the issues with Ko. He had in fact earlier in his judgment concluded that the "interpleader summons" was properly constituted - as to which he was plainly wrong - but went on to hold that Prince Good was in any case "estopped" from denying the validity of those proceedings, having in effect used them as the vehicle by which the issue as to who lawfully controlled Unionix could be resolved. In these circumstances the judge concluded that it would not be just to order Roe to pay Prince Good's costs.
As to Yam J's order numbered (b) above [see par 27. b], the costs incurred by Roe would have been confined to steps taken in the period up to the date of the consent order when they dropped out of the proceedings. These are not likely to be substantial. They were ordered to be paid by Prince Good, in the event of default by Ko. This was a logical order for the judge to make, upon his finding that the proceedings were properly constituted. This order needs to be looked at again at the conclusion of this judgment, as the foundation for the order is plainly wrong.
As to Yam J's order numbered (c) above [see par 27. c], the question, in essence, was whether in all the circumstances of the case, it was just that Prince Good should be permitted to pursue a claim in damages against Roe for the delay in transferring the shares pursuant to the exercise of the option. In this regard Prince Good's case was simple : By Godfrey JA's judgment, the legal validity of the option notice was affirmed; Roe should therefore have completed the transaction on 28 January 1997; it failed to do so; hence it was liable in damages for the delay. Yam J in dealing with this issue observed that Roe had, subject to being paid the contract price, offered to execute instruments of transfer for the shares and have these lodged in court, but Prince Good had failed to take up the offer. He went on to say:
By agreeing to a stay of the action [HCA 1034/97] and failing to take up Roe's offer to place the executed instruments of transfer in court, I agree with Counsel for Roe that Prince [Good] and Unionix had clearly accepted that their dispute with Ko had to be resolved first before Roe would be required to complete the transfer of the loan and the shares .... In the circumstances .... it is wholly unjust for Prince [Good] and Unionix now seeking to recover costs or other reliefs against Roe.
Prince Good and Unionix appealed against Yam J's judgment to the Court of Appeal. That court, by its judgment of 25 February 1999, allowed the appeal, discharged Yam J's order of 20 August 1998 and made the following orders:
Under HCA 1034/97:
That Unionix's appeal be allowed, the stay of proceedings imposed by Cheung J's order of 28 May 1997 be lifted, Unionix be given leave to amend the writ to claim damages against Roe and Kowloon Development (as guarantor of Roe's liability) and the matter be remitted to the Court of First Instance for trial, with all the costs incurred in the Court of First Instance to be paid by Roe and Kowloon Development.
Under HCMP 326/97:
That Prince Good and Unionix's appeals be allowed and that Roe be ordered to pay all of their costs incurred in the Court of First Instance.
As to the costs incurred in the two appeals, the Court of Appeal made an order nisi for 9/10th of the costs to be paid by Roe and Kowloon Development, with the remaining 1/10th of the costs to await outcome of the trial of Unionix's claim for damages in HCA 1034/97.
In May 1999 Roe lodged its application to this Court for leave to appeal against the Court of Appeal's judgment, the Court of Appeal having refused leave.
In the Court of Appeal the leading judgment, concurred in by Nazareth VP and Mortimer VP, was given by Liu JA whose main focus was on the nature of the so-called interpleader proceedings taken out by Roe in HCMP 326/97. He appears to have thought that as Roe was not entitled to invoke Order 17 - thereby in effect reversing the judge in that regard - that was conclusive on the matter. Whilst Liu JA was plainly right in his conclusion that the interpleader proceedings were bad (whatever might be said as to his reasoning) does it follow that Yam J was wrong as to the orders he had made?
THE OUTSTANDING MATTERS
There are, in essence, two matters outstanding between the parties on these appeals :
Roe's liability (if any) for damages for failing to complete the transfers pursuant to the option notice;
The costs incurred in the courts below.
These two matters are linked. They can be approached very simply.
Long gone are the days when justice can be denied because of some procedural irregularity. Order 2 r.1(1) of the Rules of the High Court provides:
Where, in beginning or purporting to begin any proceedings .... there has, by reason of any thing done .... been a failure to comply with the requirements of these rules, whether in respect of .... manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings .... or any .... judgment or order therein.
The originating summons taken out by Roe in HCMP 326/97 was unquestionably irregular as an interpleader summons and Prince Good could have applied to have set those proceedings aside. It did not do so.
The day before the "interpleader summons" was taken out by Roe, SW&L had, as mentioned earlier, issued proceedings in HCA 1034/97 on Unionix's behalf to seek specific performance "or alternatively damages" against Roe but those proceedings were not prosecuted. Unionix was in default in filing its statement of claim. Then came 28 May 1997 when all the parties were before the court and they consented to the question of the validity of the option notice being tried as between Prince Good and Ko, with Roe dropping out : all parties being bound by the outcome of the trial of that issue. Prince Good was under no obligation to agree to such an arrangement. It could have pressed on with HCA 1034/97, putting Roe in the position of (perhaps) consenting to judgment. If that were the scenario facing the parties, then Ko would not have had such an easy ride. To intervene he would have had to do so by seeking an injunction : with the inevitable price tag of an undertaking to be given by him as to damages.
From the material before the Court it is plain that Roe was not, at any time, seeking to avoid its contractual obligations under the Shareholders' Agreement. It was faced with two firms of solicitors both claiming they had instructions to act for Unionix.
One was saying: "Complete the transaction pursuant to the option notice. Fail to do so at your peril."
The other was saying: "Do so at your peril".
It took out proceedings which were defective in form but had at least this effect: They brought all the necessary parties before the court. If Roe had been told on 28 May that the determination of the agreed issues in HCMP 326/97 was not going to be the end of the matter, one way or the other, and that Unionix reserved the right to claim damages for delay, it is inconceivable that it would have consented to an order in that form. Whilst there was an order for speedy trial in CL 63/97, nevertheless having dropped out of the proceedings, Roe could not have controlled the time-table: Any "delay" for which Roe might have been liable in damages would have been the delay of the other parties; not Roe's. No party can be assumed to have agreed to such an arrangement, unless it is plain upon the face of the order. In this regard the order is far from plain. There are express reservations as to the costs in both sets of proceedings. But as to other reliefs in HCA 1034/97 they were simply stayed by consent pending the outcome of the trial of CL 63/97 and the issues in MP 326/97. The first relief in HCA 1034/97 was for specific performance. Plainly, before the issue as to the validity of the option notice was resolved, there could not be a permanent stay: The parties had to cover the possibility that, after the determination of the issues in Prince Good's favour, Roe for some reason refused to complete: By implication, the order envisaged the possibility of the stay being lifted to enable the relief of specific performance being pursued: But was there a further possibility, arising by implication that, after the transaction was duly completed and the parties discharged from their contractual obligations, Prince Good might nevertheless pursue a claim in damages?
In my judgment the answer is No. An inference that can properly be drawn from the terms of the consent order is that the parties contemplated that all outstanding matters should be at an end, except for the costs, once the validity of the option notice had been determined one way or the other, and the parties had performed according to their contractual obligations. In any event, by agreeing to the consent order rather than pursuing its own action in HCA 1034/97 against Roe, it is a necessary implication that Prince Good had in effect consented to a delay in the transfer of the shares to them pending the resolution of the question whether or not the option had been validly exercised.
This result meets the justice of the matter, as the trial judge saw it.
The Court of Appeal took by far too technical an approach. It's perspective was wrong from the start when, as Liu JA said:
The question that lies at the heart of these appeals is whether Roe was entitled to interplead.
The question cannot depend upon whether the purported interpleader summons was technically correct or not. That would be to allow the tail to wag the dog. Rather, the question depends upon an objective view as to what the parties intended, or may be deemed to have intended, by entering into the arrangement to resolve the issues arising from the three sets of proceedings, irregular though one of them undoubtedly was.
I would on these two appeals make the following orders:
The Court of Appeal's judgment be quashed.
Restore Yam J's order dismissing Unionix's application (dated 9 April 1998) to lift the stay of proceedings in HCA 1034/97 and its further application to amend the writ, with consequential costs orders in favour of Roe.
Restore Yam J's order dismissing (with costs) the application of 13 May 1998 taken out by Prince Good and Unionix in MP 326/97 for Roe to pay the costs in those proceedings, in the event of Ko failing to pay them.
As to Roe's costs incurred in MP 326/97, Yam J's order was, as mentioned earlier, based on his erroneous view that the originating summons was properly constituted. If the judge had appreciated that it was not, it is unlikely that he would have given Roe their costs, whatever else might be said regarding the position when, in effect, the irregularity was waived or cured by the consent order. In my judgment the proper result is that Yam J's order should be discharged, leaving Roe to pay its own costs in those proceedings.
As, in effect, Roe has finally emerged the winning party in these proceedings there should be an order nisi that Prince Good and Unionix should pay the costs on these appeals and in the Court of Appeal, to be made absolute unless, within 14 days of this judgment, either party should make written submissions (copied to the other party) as to why some other order should be made. In this event, the other party should have 14 days to lodge its written submissions. The Court will then resolve the matter of costs upon the written material submitted.
Mr. Justice Ching PJ
I agree with the judgment of Mr. Justice Litton PJ and with the orders which he proposes.
Mr. Justice Bokhary PJ
For the reasons so clearly stated by Mr. Justice Litton PJ, I too would allow this appeal in the terms which he proposes. In fairness to the learned judges in the courts below, however, I wish to underline the following. As foreshadowed by the observations made by the Appeal Committee when granting leave to appeal to this Court, the crucial issue has turned out to be the effect of the consent order. But in the courts below, a different issue was put forward by both sides as the crucial one. That was whether or not Roe could interplead by bringing itself within Order 17. As it happens, the Court of Appeal was right in holding that, contrary to the view on which the judge based his decision, Roe could not bring itself within Order 17.
It can be said that the learned judges in the courts below could have seen for themselves that the effect of the consent order was what really mattered. But their failure to do so is not too difficult to understand in all the circumstances and given how insistent and persistent both sides appear to have been in their attitude that the case turned on the ambit of Order 17. Even after and despite the observations of the Appeal Committee to which I have referred, each side's printed case was devoted principally to the Order 17 question. Having said that, I should gratefully acknowledge the assistance which we eventually received from counsel: at the hearing before us and with only a little prompting from the bench, both learned leaders presented full and able arguments on the effect of the consent order.
Lord Hoffmann NPJ
I agree with Mr. Justice Litton PJ's judgment.
Chief Justice Li
I agree with the judgment of Mr. Justice Litton PJ.
The Court, being unanimous, allows the appeals and makes the orders set out at the conclusion of the judgment of Mr. Justice Litton PJ.
Rules of the High Court: Ord. 2 r.1(1), Ord. 17
Mr. Edward K S Chan SC and Mr. Horace Y L Wong for the Appellants (instructed by Messrs Yu, Tsang & Loong)
Daniel R Fung SC and Mr. Anderson Chow for the Respondents (instructed by Messrs
Siao, Wen and Leung)
all rights reserved
all rights reserved