Tak Ming Co Ltd v. Yee Sang Metal Supplies Co

CACV000026/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 26 OF 1970

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Coram: Full Court (Blair-Kerr, Mills-Owens and McMullin JJ.) in Court.

Date of Judgment:1 December 1970

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JUDGMENT

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1. Judgment was given for the plaintiff against the 2nd defendant company in this action on the 3rd of January 1969. The case was tried by Pickering J. who, at the request of the parties confined his judgment to the issue of liability under the plaintiff's claim which was for work done and the materials supplied. By agreement of the parties, the value of such work and material was to be assessed subsequently by an expert structural engineer. The trial judge found for the plaintiff company on the issue of liability. Subsequently judgment in favour of the plaintiff in the sum of $332,635.17 was entered following upon the assessment.

2. The statement of claim had included a claim for interest at 8% per annum from the commencement of the action or, alternatively from the date of judgment to the date of payment. The judgment, which was handed down, made no provision in respect of the payment of interest.

3. On the 16th of August 1969, an application was made in chambers by the plaintiff under Order 6, rule 2A of the Rules of the Supreme Court before. Briggs J. for an order in the following terms:-

4. This application was refused, costs being given to the 2nd defendant. Previously, that is to say on the 8th of February, 1969, the 2nd defendant had appeared before Pickering J. in Chambers and, by consent, an order was made for the appointment of a Mr. D.A. Daly to assess the quantum due under the judgment. It is common ground that at the hearing of this application Mr. Swaine, who then appeared for the plaintiff, as he has done upon the hearing of this appeal, asked to be put on record as intending to make an application for interest at the appropriate time. No application was actually made to include interest on the judgment on that date.

5. On the 26th of May, 1970, the plaintiff filed a notice of motion intimating its intention to ask the Court for an order under the "Slip Rule" correcting the judgment of Pickering J. on the ground that the failure to provide for the payment of interest was an accidental omission from the judgment which was curable by this means. The application was heard by Pickering J. on the 26th of June 1970 when the parties were represented by the same counsel as now appear upon the appeal. The legal argument occupied the entire morning and judgment was reserved. On the 7th of July the judge granted the plaintiff's application and, having given his reasons at length for doing so, ordered that the first sentence of the final paragraph of his judgment of the 3rd of January should be corrected by the deletion of the ...(illegible) at the end thereof and by the addition of the words:

Against this decision, the 2nd defendant (the appellant in this Court) now appeals.

6. The grounds upon which the appellant company appeals to this Court are in general terms the same as the grounds upon which it opposed the application before Pickering J. to correct the judgment with one important exception. In the lower court the point was taken on behalf of the appellant company that the trial judge had no jurisdiction to make an order granting interest in any event either at the trial or subsequently upon the hearing of the application to correct the judgment. For reasons which are not material to the determination of this appeal this point was abandoned by Mr. Mills-Owens in the course of the hearing of the appeal. Shown of this contention, which was by far the most radical of the arguments advanced before the judge in Chambers, and leaving aside the question of costs which I will deal with later, the appellant's contentions upon this appeal are two: viz: (1) that the refusal by Briggs J. upon the 16th of August 1969 to make an order granting interest in addition to the other relief already granted to the plaintiff by the judgment was a conclusive determination of the matter between the parties so that when the matter came before Pickering J. on the 9th of July, 1970, it was res judicata and the judge should so have found; (2) even if the judge had power to make the order he should, in his discretion, and upon the circumstances as they appeared including the delay in making the application, have refused to alter the judgment.

7. When dealing with the submission as to res judicata Pickering J. said:

Mr. Mills-Owens for the appellant contends that effectively the matter which the Court was called upon to adjudicate was the same on both occasions and that the only difference between the summons and the notice of motion is that, when the matter was being heard by Briggs J., no express reference was made to the Slip Rule as giving the Court power to make the alteration which was sought. Counsel points out that under the existing rules there is no necessity to cite the actual rule relied upon in the summons or application. He drew our attention to the words which appear in rule 2(A) of Order 6:

and he says that when the matter was before Briggs J. this was the rule which was specifically being considered by the Court and, in view of the words above quoted, the judge cannot have been in any doubt that what he was being asked to do was to make an alteration in the judgment. He must be said therefore to have considered the propriety of doing so and his refusal must be regarded as a final conclusion, upon the merits, of the application to correct the judgment. No litigant, he says, should be permitted to litigate the same matter twice simply because, on the second occasion, he contrives to change the form but not the substance of the application. He referred us to the decision in Reichel v. Mcgrath ((1889) A.C. 665) and in particular to the judgment of Lord Halsbury L.C. where he says at page 668:

It is to be noted however that that was a case in which there had been a full trial of the appellant's claim to be entitled to a certain benefice. The Court had refused to grant to the appellant the declaration which he claimed and thereafter his successor in the benefice brought an action for a declaration declaring his entitlement there to and claiming an injunction restraining the appellant from interfering with the successor's use of the house and land. In defending this action the appellant set up by way of defence, precisely the claim which had originally been adjudicated upon in the previous action. It will be apparent, therefore, that there was no question but that the merits of the appellant's contention in that case had been disposed of upon trial on the first occasion.

8. The same observation may be made in respect of the case of McDougall v. Knight((1819) 85 Q.B.D.1); and Stephenson v. Garnett(L.R. 1 Q.B.D. (1896) 679) On the authority of the latter decision however Mr. Mills-Owens presses the principle this much further that he maintains that if this Court is satisfied that it was open to the successful plaintiff before Briggs J. to ask for a correction of the judgment then, whether he actually did so or not, or whether what he did ask for is to be construed as equivalent to asking for a correction of the judgment, he could not thereafter legitimately ask for a correction of the judgment before Pickering J.

9. Mr. Swaine, for the respondent, does not dispute that in certain circumstances it may be legitimate to apply for the correction of a judgment to a judge other than the judge who delivered it. He answers however that the same matter was clearly not before the two judges. The first judge was being asked, without more ado, to add to a judgment already delivered an order for interest under the powers conferred upon the Court by rule 2 A, of Order 6. That application did not proceed upon any alleged deficiency in the judgment but simply upon the basis of a right, which there respondent now concedes does not exist, to have an order for interest under the rule without reference to anything pleaded or proved in the action or awarded in the judgment as delivered. The second application i.e. under the notice of motion, moved expressly upon the ground that there had been an omission from the judgment, through oversight, of an order which had been asked for and not dealt with. If the first judge had been apprised of the fact that it was alleged that the second judge had accidentally omitted from his judgment something which he must have intended to include therein he might very well have taken the course of referring the matter to that judge since it was his knowledge and intention at the time of judgment which were the matters crucial to the resolution of the issue.

10. On the hearing of the appeal we were in the difficulty that neither counsel who now appear had appeared upon the original application before Briggs J. The learned judge has not recorded his reasons for refusing the application and we were informed by Mr. Swaine that he had it on the authority of Mr. Arculli, who did appear upon that occasion, that the entire proceedings took only three minutes. The only note of what occurred appears as an endorsement upon the back sheet of counsel's brief a photostatic copy of which, by agreement between counsel in this court, was put before us. That note reads as follows:-

We have in addition, and with the consent of counsel, consulted with the judge himself but, understandably, in view of the long time elapsed since the proceedings, he was unable to afford further illumination upon the question of what arguments were advanced before him. In this rather unsatisfactory state of affairs it does not appear to be possible for us to say that there must have been such an adjudication upon the merits of the application before Briggs J. as to raise a barrier of estoppel between the two proceedings. The question as to whether, as a matter of discretion, the Slip Rule ought to be applied occupied a considerable proportion of the two days alloted to this appeal and, as I have already said, the arguments before Pickering J. including the question of discretion occupied the entire morning. Even if we were to hold with Mr. Mills-Owens that effectively the same issue was put before the two judges we would find it impossible to say, upon what is before us, that there had been a full determination of those issues upon their merits. From the brief note of the proceedings set out above the preferable view would seem to be that the learned judge came swiftly to the conclusion that he had simply no jurisdiction to deal with the matter at all. No doubt he considered that the point was plain enough for him to take the course at once of refusing jurisdiction since there does not appear to have been time for counsel to advance arguments directed either to establishing jurisdiction or to the merits of the application as a whole including (if it were in counsel's mind to raise the matter) the power of the judge under the Slip Rule. I take the view therefore that it has not been shown that there was any adjudication of the application for interest upon its merits. It follows that when the matter came afresh before Pickering J. he was perfectly correct in dismissing the contention as to estoppel although the reason which he gave for doing so may be questionable, a point which need not now be decided.

11. On the point as to discretion I do not propose to review the authorities relied upon by counsel. It appears to me that these were adequately canvassed and properly dealt with by Pickering J. in the written reasons given by him when correcting his judgment. This is not to say that the submissions of counsel for the appellant were without substance in this regard. It is true that counsel for the respondent should have asked for an order for interest at the hearing of the action. On the other hand, because of the course taken by agreement between the parties, the issue which then loomed large in everyone's mind was the issue of liability. Application ought to have been made when judgment was delivered but counsel was to a large extent deprived of that opportunity by reason of the fact that the judgment was handed down. It is true also that on the 8th of February, 1969 when Pickering J. made an order concerning the appointment of an assessor, Mr. Swaine specifically reserved his right to ask for interest at the appropriate time. Mr. Mills-Owens says, concerning this, that since it is clear that the matter was in the minds both of counsel and of the judge at that time, an application should thereupon have been made to supply the omission in the judgment. It may be that counsel was mistaken at the time as to his rights and duties in respect of such an application. On the other hand the fact that counsel then announced his intention to claim interest was fair intimation to the other side that the point as to interest had not been abandoned. It is also true that there then ensued a period of 15 months during which no further action was taken by the successful plaintiff to have the judgment rectified. It should be remembered however that the proceedings to which the present dispute is but a small appendage were not asleep during that period. No doubt the minds of the parties and of their legal advisers were adequately occupied with the appeal to the Full Court which was heard and dismissed in June 1969 and thereafter by the consultations and preparations which must have followed and which resulted in the lodging of an appeal to the Privy Council. The latter appeal remains unheard at the present date. During this period also the expert assessor appointed by the judge to assess the quantum due under the contract was carrying out his work and came to his finding on the 30th of July, 1969.

12. The judge was in no doubt that, had his mind been directed to the question of interest, at the time that his judgment was being delivered he would have awarded interest pursuant to the prayer in the statement of claim. In addressing his mind to the arguments and to the authorities, urged upon him by the present appellant, he came to the conclusion that the correction of the judgment in May 1970 made no material alteration in the position of the appellant company other than that it might be compelled, following upon the alteration, to pursue that matter upon appeal separately and in the wake of the main appeal which is now before the Privy Council. He took the view that this was to some extent detrimental to the interests of the appellant company but that it was a matter which was ultimately susceptible of compensation in the way of costs. It is trite law that we should only interfere with the exercise of the judge's discretion if it were clear that he had exercised that discretion upon a wrong principle. Mr. Swaine argues that the judge correctly addressed himself to the principles involved, relying upon various dicta of the Court of Appeal in the case of Moore v. Buchanan ((1967) 1 W.L.R. 1341). Mr. Swaine contends that in exercising his discretion the learned judge appeared to have taken into account all the factors relevant to the due exercise of his discretion. The learned judge expressly considered firstly, whether he would have made the order sought had his attention been drawn to the necessity for doing so at the time; secondly, whether the rights of third parties had intervened in such way as to render it inequitable to make the order sought; thirdly, whether anything had otherwise intervened which would render it inexpedient or inequitable to do so. In other words, Mr. Swaine said, he had exercised his discretion at its full width within those principles discerned by Diplock L.J. in the speech of Lord Watson in Hatton v. Harris which is to be found at page 1348 (1967) 1 Weekly Law Reports. Clearly that is so and nothing which has been advanced upon the other side seems sufficient to support the allegation that judge in Chambers wrongly exercised his discretion. The delay in itself was not enough to deprive him of discretion and although substantial was not, in the circumstances excessive. In granting the application to correct his judgment the learned judge ordered that each party should pay its own costs of that application. Mr. Mills-Owens asks us to say that, whatever else is to be said about the merits of this appeal that order was clearly wrong. Mr. Swaine seeks to uphold it upon the ground that the appellant's opposition to the application was unjustified. But to say so would be to overlook the fact that it was the successful plaintiff's own default which necessitated the making of the application. The unsuccessful defendant was surely entitled at least to seek out the reason why there had been delay in making the application and, in general, to test the plaintiff as to his bona fides. I think, with respect, that the order was wrong and to that extent only do I think it necessary to interfere with the decision of the court below. I think therefore that the judgment in the court below should be varied so that for the order as to costs there will be substituted an order that the costs of that application will go to the appellant (defendant). So far as the costs of this appeal are concerned, it was necessary in any event, for the appellant to approach this court to rectify the order relating to the costs below. Having won upon this issue, although a minor issue in the appeal as a whole, I think that the appropriate order would be that costs should be apportioned.

-1 DEC 1970

Representation:

…(illegible)

Swaine (T.S. Tong) for Respondent