Chandru Heera Sakhrani t/a Sakhrani Trading Co v. Yau Tack Shing (A Firm)

HCA001292/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1292 OF 1968

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Coram: Huggins, J.

Date of Judgment: 5 March 1969

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RULING

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Huggins, J: This is an application in the nature of attachment. The applicant obtained judgment against the respondents and the judgment remains unsatisfied. The applicant has ascertained that the respondents' landlord distrained upon the respondents' property by way of distraint proceedings in the District Court. After satisfaction of the landlord's claim there remains in the hands of the Registrar of the District Court a sum of $2,193, which the applicant seeks to have paid to him in payment of part of his judgment debt.

2. The application is made under O.49 r.9(1), which reads:

"Where money is standing to the credit of the judgment debtor in court, the judgment creditor shall not be entitled to take garnishee proceedings in respect of that money but may apply to the Court by summons for an order that the money or so much thereof as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor."

The respondents did not appear upon the summons (or, indeed, in the action) but it seemed to me questionable whether it was proper for me to make an order relating to moneys in the District Court. I had in mind that the Rules of the Supreme Court were made in the exercise of powers conferred by s.38 of the Supreme Court Ordinance and must be construed in the light of those powers.

3. The solicitor for the applicant argues that the money in the District Court is "in court" within the meaning of the rule because by s.3 of the Interpretation and General Clauses Ordinance

"'court' means a court of the Colony of competent jurisdiction".

He further relies upon London County Council v. Monks⁽¹⁾, but I think that case, if it be relevant at all, is against him. Mr. Justice Danckwerts surveyed the history of the enforcement of County Court judgments by the High Court and then said at p.243:

"The real basis of (Brereton v. Edwards⁽²⁾ and In re Prior⁽³⁾) seems to me to be that, where the court has the fund under its own control, as in the case of a fund standing to the credit of some account of the Paymaster-General, the Paymaster-General being the officer of the High Court and all the judges of any Division of the High Court being judges of that court, the judges will enforce a High Court judgment by directing their officer to pay out the money or by making a charging order on the fund in question, so that the judgment creditor shall not be defeated with regard to satisfaction of the judgment."

But that case turned upon enactments which have no application to Hong Kong and furthermore here we have a judgment of the Supreme Court which it is sought to enforce against moneys in an inferior court. What I am required to do is to construe O.49 r.9(1) and although I am told that there have been cases in which an order of the kind now sought has been made I am driven to the conclusion that I have no jurisdiction to make such an order. It is not without significance that O.27 r.18 of the County Court Rules 1936 is in very similar terms to O.49 r.9 of the Rules of the Supreme Court but refers to "money .... in any county court" and says that application may be made to "the judge". I think it is clear that application is there to be made to the judge of the County Court in which the money is credited. In my view, also, O.49 r.9 contemplates that the application should be made to the court under whose control the money is. If it were otherwise than a District Judge could by virtue of the District Court Civil Procedure (General) Rules (which make O.49 r.9 applicable in the District Court) make an order for payment out of money standing to the credit of the judgment debtor in the Supreme Court and I have never heard it suggested that there is jurisdiction to make such an order.

4. In my view application should have been made to a judge of the District Court in which the money stands credited to the judgment debtor and the present application must be dismissed.

Leave to publish.

5th March 1969.

Representation:

(1) 1959 Ch. 239

(2) 1888 21 Q.B.D. 488

(3) 1921 3 K.B. 333