Riviera Gardens Investments Ltd v. Woodstad Engineering Ltd
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HCA001097/1989 1989, No. A1097 ----------------------- H E A D N O T E ----------------------- There is no general Rule of Court that empowers the Court to terminate proceedings as against a party who disobeys an interlocutory order; but the Court has power to do so under its inherent jurisdiction to preserve the effectiveness of its process. 1989, No. A1097 IN THE SUPREME COURT OF HONG KONG HIGH COURT ----------------- BETWEEN
----------------- Coram: Bokhary, J. in Chambers Date of hearing: October 23, 1989 Date of delivery of judgment: October 23, 1989 ---------------------- J U D G M E N T ---------------------- 1. The background to this appeal from a decision of a master is a dispute between landlord and tenant in regard to certain shop premises in a development of mixed user in Tsuen Wan. The plaintiff is the landlord and the defendant is the tenant. 2. Much of the dispute which has arisen between the parties rages around a cockloft. It is unnecessary, and indeed undesirable, that I say very much about the actual dispute itself. 3. On the application of the plaintiff, Master Cannon made an order for interim payment by the defendant to the plaintiff in respect of the use and occupation of the shop premises in question. The defendant, who had attempted unsuccessfully to resist that order, lodged an appeal against it. It did not apply for a stay of the order pending such appeal. But it did not make any interim payment either. The plaintiff's reaction, once the time for payment had arrived without payment being made, was to apply to strike out the defence and counterclaim and have judgment for, among other things, possession entered in its favour in default. 4. That application, which succeeded before Master Cannon, is in accordance with the practice explained by Sir I.H. Jacob in an article entitled "The Inherent Jurisdiction Of The Court" appearing in (1970)23 Current Legal Problems at p.23. This is what the learned author of the article said at pp.45 - 46 :-
The defendant appeals against the striking-out and the order for judgment in default. The appeal is now before me. I have not the slightest doubt - and I do not think it is seriously challenged - that the Master had jurisdiction to make the order which she made. What is said on behalf of the defendant is that, notwithstanding the existence of the jurisdiction, the order should not have been made. I have no doubt that, in light of the way it was put on behalf of the defendant before the Master, the order which she made was correct at the time when she made it. Then the defendant's attitude was quite simply that either it did not have to pay, because it had lodged an appeal or, if it did have to pay, then its failure to do so should result in nothing more than execution under the various procedures available under the Rules of the Supreme Court. That position was wholly untenable; and the Master was quite right to react in the way that she did in the face of such an attitude. There is no general Rule of Court that empowers the Court to terminate proceedings as against a party who disobeys an interlocutory order; but the Court has power to do so under its inherent jurisdiction to preserve the effectiveness of its process. 5. Before me, however, the defendant has adopted a different attitude; and various suggestions were put forward on behalf of the defendant as to what I ought now to do. One possibility that was canvassed is that I should allow the appeal on terms; and there has been argument on what terms should be imposed if I adopt that course. However, the primary position of the defendant is that I should allow the appeal simpliciter, while the primary position of the plaintiff is that I should dismiss it simpliciter. 6. In truth, I think, a middle course is appropriate. What I propose to do is to allow the appeal to the extent that the Master's order for striking-out and the entry of default judgment will stand set aside if, within 7 days from today, the defendant pays to the plaintiff or its solicitors everything outstanding under the order for interim payment made by the Master. For such purpose, in calculating what is due, interest will be left out. I add an 'unless' order to take effect if payment is made so that the striking-out and the default judgment stand set aside. The unless order will be to the effect that the defence and counterclaim will stand struck out and judgment may be entered in default against the defendant unless all future interim payments ordered by the Master are made strictly on time. Of course, if the order for interim payment is set aside or modified on the appeal against it (which appeal is now revived and has yet to be heard) then the position would be altered or modified accordingly. As things stand, that is my order; and the appeal is allowed to that extent. 7. I wish to emphasize two things : First of all, the Master's order was perfectly correct on the material before her and in the situation as it obtained before her. The second thing which I wish to emphasize is that counsel who appears for the defendant today was in no way involved in the erroneous advice to the defendant resulting in the stance it took before the Master on the application to strike out and have judgment entered in default. 8. Finally, I express my gratitude to both counsel for the assistance which they have given me. I will now hear them on the question of costs. [Submissions on costs] 9. In my judgment, the costs of this appeal should be paid by the defendant to the plaintiff. It is true that the appeal has been allowed; but that has happened in the most extraordinary circumstances and under very stringent conditions. It seems to me that from start to finish the party at fault was the defendant. And the fact that it now still has some opportunity to continue this litigation is something which I would attribute to the somewhat lenient course which I have taken despite the way that it has behaved. My anxiety that the defendant should be allowed to continue this litigation if there is any possible basis on which that can legitimately be permitted must not be allowed to cause unfairness to the plaintiff. The costs should therefore be as I have stated. [Suggestion by the defendant that it should be given 14 days to pay] 10. I think that the 7 days that I have specified should remain; but I will give liberty to apply for an extension if it should become necessary. If towards the end of the 7 days the defendant has difficulty paying the money to the plaintiff, it may, shortly before the 7 days have expired, come before the Court and ask for the period to be reconsidered. But as things stand, I do not see why I should change the 7 day-period which I have ordered.
Representation: Mr A. Yau (instructed by Philip K.H. Wong & Co.) for the plaintiff Mr K. Ramanathan (instructed by Norman Yung & Co.) for the defendant |