Polyproducts Industrial Co (A Firm) v. Holiday Products (HK) Ltd

Case No.HCA 1797/1972

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA001797/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1797 OF 1972

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BETWEEN
	POLYPRODUCTS INDUSTRIAL CO. (a firm)	Plaintiff
	and
	HOLIDAY PRODUCTS (H.K.) LTD.	Defendant

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Coram: Li, J.

Date of Judgment: 13th May, 1975

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JUDGMENT

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1. The applicant in this summons was the defendant in Action 1797 of 1972 in which he succeeded in having the claim against him dismissed and was successful in obtaining damages in his counterclaim, which was subsequently increased by the Full Court. No interest had been awarded in respect of such damages from the date of the cause of action down to the day of judgment and to the date of appeal. For this reason the applicant now applies that interest at the rate of 8 per cent be awarded in the sum of $22,714.75 from the 21st July, 1972 down to the 18th June, 1974 and the interest at the rate of 8 per cent awarded in the sum of $30,351 from the 21st July, 1972 to the 12th November, 1974.

2. The facts are that judgment was given on the 31st May, 1974 in which the applicant was awarded damages in the sum of $22,714.75. This judgment debt was fully paid on the 17th June, 1974. Then Notice of Appeal was given on the 10th July, 1974 and on the 12th November, 1974 the damages were further increased by $30,351 by the Full Court. In neither judgment was interest asked for or awarded.

3. The applicant's case is that the failure of the applicant to obtain interest is due to an inadvertence. The application is made under section 30A of the Supreme Court Ordinance. Subsection (1) of the Ordinance provides that:-

"Sub ject to subsection (2),"

which is not relevant,

"the court may, in any proceedings brought in the court for the recovery of any debt or damages, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment."

Subsection (3) of this section provides that:-

"The powers conferred by subsection (1) may be exercised -

	(a)	whether or not interest is expressly claimed;
	(b)	at any time after judgment is entered in any case in which it appears that the failure to apply for or to award interest was through inadvertence; and
	(c)	in the case of a judgment entered by default or by order of the Registrar, by the Registrar."

The relevant clause in the Affidavit in support of this application is from Mr. Morris, solicitor for the applicant, in which he says that:-

"From the very beginning of this action I believe this firm"

meaning his own firm,

"	had been instructed by the Defendant to claim all and every amount owed and owing to it howsoever arising.
	The said instructions were passed by this firm to Learned Counsel for the Defendant. The Defence and Counterclaim and the amended Defence and Counterclaim were settled by Learned Counsel. (In) Neither of the said documents was there any claim for interest on. the amounts claimed. Certain amounts were awarded to the Defendant by the Learned Trial Judge in the said Action and certain further amounts were awarded in the Supreme Court of Hong Kong in its Appellate Jurisdiction under reference Civil Appeal Number 30 of 1974.
	Neither of the said awards included an award for interest.
	I am informed and I verily believe that it was due to the inadvertence on the part of Learned Counsel involved in conducting this action that the implied instructions of the Defendant concerning his claim for interest was ommitted."

Then he went on in paragraph 8 saying:-

"The claim for interest had been ommitted by inadvertence and it was not until the month of December, 1974 that I realised Defendant's instructions had not been implemented in this matter."

4. Now, coming back to the facts, after the Appellate Court had increased the amount of damages to the applicant, the parties came to an agreement that the increased damages should be paid by instalments. The final instalment of the increased damages, was paid on the 27th February, 1975. It was not until the 12th April, 1975 that the applicants started to claim interests. There is no direct authority on the point. Learned counsel for the applicant relies entirely on subsection (3) of section 30A of the Supreme Court Ordinance and learned counsel for the respondent strongly resists the application on the ground, first of all, that when a judgment is satisfied all the rights are extinguished, and, further, that when a judgment has been satisfied and extinct all the fruit of judgment is extinguished with it. He cites the cases of Aman v. Southern Railway Co.⁽¹⁾ and Morse v. Muir⁽²⁾. I need not refer to them in detail. Sufficient is it for me to say that I have considered both cases and I do not find them of great assistance. Both cases are founded on a different principle in that the judgment debt had either really been merged or extinguished or converted to another judgment debt and, as such, interest of the former judgment had already been included in a subsequent judgment. However, in the present case I found my judgment on the principle that there must be a finality in all proceedings. The presumption and logical presumption that interest must have been claimed is apparent in paragraph 2 of Mr. Morris's Affidavit that:

"From the very beginning of this action I believe this firm had been instructed by the Defendant to claim all and every amount owed and owing to it howsoever arising."

That may well be so. It is not fatal not to have claimed interests in the pleadings. It is sufficient for learned counsel for the applicant at the time when judgment was given to ask for interest and he would have obtained it as of right. Further, when this case went before the Full Court, again, it would have been easy for learned counsel to have asked for interest to be awarded to the increased sum, or, indeed, to the sum that was awarded in the trial court. That was not done. It is said that the whole thing was realised by December, 1974. But no claim was made for interest then until April, 1975. I need also to refer to paragraph 9 of Mr. Morris's Affidavit in which he says that:-

"I verily believe that the Plaintiff has not and will not be prejudiced by delay if any in making this application which has been due to the fact inter alia that Mr. McDougald is resident in the Phillipines and also Learned Counsel has been occupied with other matters."

Be that as it may, Phillipines is only a couple of hours' plane distance from Hong Kong. The claim for interest was delayed for another two months until the final instalment of the judgment debt had been paid. It is no use at this stage to say that the respondent will not in any way be prejudiced by the delay. To all intents and purposes the respondent had already paid satisfied his judgment debt. He is now being confronted with a further application to pay further sums of money. I have sympathy with the respondent concerned. I cannot conscientiously say that this inadvertence, or the failure to claim interest until now has not prejudiced the respondent. The application will have to be dismissed. Costs to the respondent with Certificate of Counsel.

Representation:

Mr. Eddis (Wilkinson & Grist) for Applicant

Mr. Sahkrani (Deacons) for respondent

(1) (1926) 1 K.B. p. 59

(2) (1939) 2 K.B. p. 106