Nelson Martayan v. Hancheng Industrial Co Litd

DCCJ 3587/2021

[2023] HKDC 288

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3587 OF 2021

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DECISION

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1.I handed down a Decision on 16 December 2022 ([2022] HKDC 1400), whereby I allowed the Plaintiff’s appeal against the Order of a Master dated 15 July 2022 setting aside the default judgment dated 1 September 2021. I also made an Order, inter alia, that the Garnishee Order nisi the Plaintiff obtained on 30 September 2021 pursuant to the default judgment be made absolute.

2.In paragraph 10 of my Decision, I referred to the procedural history that the parties obtained an Order from the learned Master on 21 July 2022, by which the Defendant was allowed to withdraw HK$400,000 from its bank account, and pay the same into court; upon which the Garnishee Order nisi would be discharged without further order.  I was informed at the hearing of the appeal that the Defendant had not paid HK$400,000, or any part thereof, into court. So when I prepared my Judgment, my understanding was that the Garnishee Order nisi was still extant. 

3.By way of a letter dated 5 January 2023 and addressed to my clerk, the Defendant’s solicitors pointed out that the Defendant paid HK$400,000 into court on 13 December 2022 (that is, after the hearing of the appeal, but before I handed down my Decision) pursuant to the learned Master’s Order dated 21 July 2022.  The Defendant’s solicitors argued that, as a result, the Garnishee Order nisi was automatically discharged without any further order.  They submitted that I should revise the Order I gave in the Decision, pursuant to Order 20 rule 11 of the Rules of the District Court, to the effect that the Garnishee Order nisi shall be discharged.

4.I note that the Order I gave in my Decision and the Garnishee Order absolute were both sealed on 13 January 2023.  I have not been provided with any information as to the steps taken by the Defendant (if any at all) in response to, or in anticipation of the Plaintiff’s intention to seal both orders.

5.I do not propose to rehearse the legal principles on the jurisdiction of the court in amending any judgment or order by way of the slip rule.  In my judgment, this is plainly not a case where I have jurisdiction under Order 20 rule 11 to amend the Judgment now.  Prior to the handing down of my Decision, I was not informed of the steps taken by the Defendant, after the hearing of the appeal, to comply with the learned Master’s Order.  The Order that I gave in my Decision did not wrongly represent the intention I expressed therein as to how the Plaintiff’s appeal should be disposed of.  And since the Order granted in my Decision has now been sealed, I do not retain any power to revisit my Decision upon the parties’ application.

6.Therefore, the only alternative open to me now is to make no order on the Defendant’s letter dated 5 January 2023.  Since I have not invited submissions from the Plaintiff, I shall make no order as to costs. 

7.As I see it, it is a matter for the Defendant to liaise with the Plaintiff to properly protect its interest.

Holman Fenwick Willan, for the plaintiff

ONC Lawyers, for the defendant