Read the full judgment text of HCCT 90/1999 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 13 December 2000 before Hon Burrell J in Chambers.
Construction and Arbitration Proceedings — Enforcement of Tomlin Order — Interest on Sums Awarded — Whether claim for interest must be pleaded in amended motion — Discretionary power under High Court Ordinance Cap.4 s.48 to grant interest — Court's inherent power to vary orders — Whether court functus officio after approving draft order — Appropriate rate of interest — Costs. The plaintiff sought to enforce a Tomlin order and claimed approximately HK$4.4 million awarded, and further sought interest on these sums despite interest not being pleaded in the amended motion or mentioned at hearing. The court held that there was discretionary power under section 48 of the High Court Ordinance to grant interest and that failure to plead interest in the motion was not fatal. The court accepted that the claim for interest was always intended but inadvertently omitted at hearing. It found that the defendant had profited from retaining the money and that prime plus 1% per annum was the appropriate interest rate. The court rejected the defendant's submission that the court was functus officio after approving the draft order without reference to interest, holding that the order could properly be varied to include interest consistent with the court’s original intention. Costs of the summons were awarded to the plaintiff. The court thus granted the plaintiff’s application for interest from 5 April 2000 to 24 October 2000 at prime plus 1% per annum, with consequential costs orders.
Legal issues: Entitlement to interest on sums awarded under Tomlin order · Appropriate interest rate · Whether court is functus officio after approving draft order
Outcome: The plaintiff’s application for interest on sums awarded is granted; the rate applied is prime plus 1% per annum from 5 April 2000 to 24 October 2000; costs of the summons are awarded to the plaintiff.
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