FABRIQUE EBEL SOCIETS ANONYME v. MBO FAR EAST (HK) LIMITED

FABRIQUE EBEL SOCIETS ANONYME v. MBO FAR EAST (HK) LIMITED

The court applied the test from Harkness and held the failure to obtain prior leave under O.52 r.2 was a procedural mistake/irregularity that could be cured under O.2 r.1 because the judge would have granted leave if asked; accordingly the court granted retrospective leave and validated the proceedings ab initio, declined to impose security for costs under O.52 r.2(7) as it was not a glaring case, and found respondents had likely waived objections by participating after being or being put on notice of the irregularity.

Citation
FABRIQUE EBEL SOCIETS ANONYME v. MBO FAR EAST (HK) LIMITED
Parties
Plaintiff / Applicant: FABRIQUE EBEL SOCIETE ANONYME; Defendant / First Respondent: MBO FAR EAST (HK) LIMITED; Director / Second Respondent: Wolfgang Kleiber; Third Respondent / Company: Hemsley International Watch and Jewellery Limited; Director / Fourth Respondent: Herbert Auinger
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 March 1985
Case Number
HCA7613/1983
Procedural Posture
Contempt Proceedings (applications for Sequestration and Committal) / Interlocutory Hearing — Ruling on Retrospective Validation of Proceedings and Leave Under O.2 and O.52
Outcome
Application granted in part: retrospective leave under O.52 r.2 granted and proceedings validated under O.2 r.1
Legal Topics
Retrospective Validation of Procedural Irregularity, Leave Under Order 52 R.2, Order 2 R.1 Irregularity, Security for Costs Under O.52 R.2(7), Waiver by Participation
Source Language
EN
Civil Procedure Contempt of Court Sequestration Committal Costs (security for Costs) Retrospective Validation of Procedural Irregularity Leave Under Order 52 R.2 Order 2 R.1 Irregularity +2 more

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Parties

FABRIQUE EBEL SOCIETE ANONYME

Plaintiff / Applicant

MBO FAR EAST (HK) LIMITED

Defendant / First Respondent

Wolfgang Kleiber

Director / Second Respondent

Hemsley International Watch and Jewellery Limited

Third Respondent / Company

Herbert Auinger

Director / Fourth Respondent

Procedural Posture

Contempt Proceedings (applications for Sequestration and Committal) / Interlocutory Hearing — Ruling on Retrospective Validation of Proceedings and Leave Under O.2 and O.52

Legal Issues

  1. 1 Whether the court can validate proceedings commenced without prior leave under O.52 r.2 by using O.2 r.1
  2. 2 Whether leave under O.52 r.2 should be granted retrospectively and on what terms (including security for costs)
  3. 3 Whether respondents waived the objection to irregularity by participating after becoming aware of it

Ratio Decidendi

The court applied the test from Harkness and held the failure to obtain prior leave under O.52 r.2 was a procedural mistake/irregularity that could be cured under O.2 r.1 because the judge would have granted leave if asked; accordingly the court granted retrospective leave and validated the proceedings ab initio, declined to impose security for costs under O.52 r.2(7) as it was not a glaring case, and found respondents had likely waived objections by participating after being or being put on notice of the irregularity.

Court Disposition

Application granted in part: retrospective leave under O.52 r.2 granted and proceedings validated under O.2 r.1

Orders

  • Applicants granted leave to institute committal proceedings under Order 52 r.2 retrospectively
  • Proceedings validated and to continue as if leave had been given ab initio