The Excelsior v. Bernard N. Da Silva

Case No.DCCJ 1543/1975[2001] 2 HKC 215[1976] HKDCLR 32

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ001543/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1543 OF 1975

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BETWEEN
	The Excelsior	Plaintiff
	and
	Bernard N. Da Silva	Defendant

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Coram: Judge Liu, O.C., in Chambers.

Date of Judgment: 26th May, 1976

Application for an injunction order.

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Judgment

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1. The Plaintiff's claim in this action against the Defendant is for $13,244.33 being the balance of hotel charges due and owing to the Plaintiff by the Defendant for services rendered and victuals and board supplied. Subsequent to the commencement of the action, the parties settled on terms whereby subject to the usual default clause, the Defendant consented to judgment and pay the same together with agreed costs by some 27 monthly instalments. On the 12th March, 1975, these terms of settlement were made an Order of the Court. The Defendant has failed to pay any of these instalments, and the whole judgment debt has thus become and is now being due and payable. The Defendant is vulnerable to the due process of execution which, however, the Plaintiff has chosen not to take advantage of. By an ex parte summons dated the 4th of May 1976, the Plaintiff applied for an injunction restraining the Defendant from leaving this Colony until he has paid the entire judgment debt and costs. In support of the ex parte application, one Mr. Singh Maria deposed to the fact that he met the Defendant in Mandarin Hotel on the 27th April 1976 and was informed by the Defendant that he would leave for Bangkok within the next week or two and that he would only pay one $500.00 instalment of the judgment debt pending his departure. On the 7th of May, 1976, attendance of the solicitor in charge was invited with a view to satisfying the Court, inter alia, that the injunction prayed for was within the jurisdiction of the District Court. On the 17th May 1976, solicitor for the Plaintiff came before me and made certain submissions. I was far from being persuaded that the District Court has jurisdiction to entertain the application. At the request of the Plaintiff's solicitor, the matter was adjourned for further arguments. On the 26th May 1976, the ex parte application was restored. It was unfortunate that further submissions made to the Court were no more than rudimentary:- Firstly, it was submitted that the provisions in S.52 (1) of the District Court Ordinance for injunctions and declarations are to be construed disjunctively in the sense that the Court has jurisdiction to grant and enforce injunctions of "whatever nature and as the case may require" without any of the limitations set out in paragraphs (a) to (d) which are exclusively applicable to declarations of right. Secondly, it was further submitted that S. 52 (2) (b) of the District Court Ordinance preserves inter alia S.48 and that under S.48 (1) the Court has jurisdiction to grant all relief, redress or remedy in as full and ample a manner as the Supreme Court.

2. S. 52 (1) of the District Court Ordinance reads as follows:- "The Court shall have jurisdiction to grant and to enforce injunctions of whatever nature and as the case may require and to made binding declarations of right". (The underlining is mine). Thereafter, it is followed by four categories of limitation, paragraphs (a), (b), (c) and (d). In my judgment, it is completely devoid of merit to suggest a severance of injunctions from these four categories of limitation in S. 52 (1) of the District Court Ordinance. S. 52 (1) clearly subjects the Court's power to grant injunctions and declarations alike to paragraphs (a), (b), (c) and (d) of that subsection. The second submission of Mr. Fairbairn has as little to offer as his first submission. S. 48 of the District Court Ordinance enables the District Court to grant all ancillary reliefs in "any cause for the time being within its jurisdiction". That hardly assists the Plaintiff on this ex parte application. The Plaintiff's claim in this action is for hotel charges, and obviously, an injunction to restrain movement of the body cannot be said to be ancillary thereto.

3. The equitable jurisdiction of the District Court has been a matter of constant discussion. See Duntzen v. Daglin (1), Cheng Mun Chi and Another v. Leung Sau Shan (2), Chan Kung Chi v. Cho Yung Siu Ying and Another (3), Wan Tai Tai v. Chan Chi She and Another (4), and Lee Kin Man v. Tsang Yuk and Another (5). The present S. 52 of the District Court Ordinance extends the District Court's jurisdiction to grant injunctions and to make declarations. As envisaged by Judge McMullin, as he then was, in Wan Tai Tai v. Chan Chi She and Another (4), under S. 48 (S.14 (2) of the former District Court Ordinance as amended in 1959) the District Court may grant an injunction ancillary to a claim within the equitable jurisdiction of the District Court as defined in S. 37 (formerly S. 11 of the Supreme Court (Summary Jurisdiction) Ordinance). Reference was made by Judge McMullin to a footnote (0) at page 142 of Volume 9 Halsbury's Laws of England 3rd edition (6). Further provisions have since been enacted in the District Court Ordinance, in its present S. 52, for injunctions and declarations. Whist injunctions may be granted under S. 48 by the District Court in the exercise of its equitable jurisdiction under S. 37, for the various jurisdictions in the District Court under S. 32, 33, 35 and 36 inclusive of the equitable jurisdiction under S. 37, the District Court may resort to injunctions under S. 52. In effect, the provisions in S. 52 (1) viz. paragraphs (a) to (d) cover extensively all the jurisdictions in these sections 32, 33, 35, 36 and 37. In Simpson v. Crowle (7) at p. 251 Bray J. concluded: "I have come to the clear conclusion that the Court decided that when the only claim in the plaint is for an injunction the judge in the county court has no jurisdiction, at all events unless it is shown that there can be a cause of action for damages and for damages not exceeding £100. The right to add injunction is only a remedy ancillary to a cause of action within S. 56. In my opinion, therefore, the learned judge had no jurisdiction to try the case". S. 56 of the County Courts Acts of 1888 put a ceiling to the jurisdiction of the County Court. In my view, the position to-day can admit of no ambiguity:- (i) The District Court has been specifically vested with enlarged jurisdiction to issue injunctions under S. 52 in addition to injunctions granted in the exercise of its equitable jurisdiction under Sections 37 & 48. (ii) The District Court has thus power to grant injunctions ancillary to the substantive causes of action within its legal or equitable jurisdiction as defined in Part 4 of the District Court Ordinance. (iii) An injunction may be granted only with reference to the very subject-matter in litigation. In other words, injunctions are to be granted only "in aid of the relief which the (District) Court has power to give". See judgment of Lord Sterndale, Master of the Rolls, in R. v. Cheshire County Court Judge and United Society of Boiler Makers, ex parte Malone (8). In Arnbridge (Reading) Limited v. Hedges and Others (9), Lord Denning was reported to have observed: - "It had been settled for years that in the County Court a claim for an injunction was only permissible when it is ancillary to a claim for damages". These are some illustrations of the obvious that injunctions in the District Court may only be granted with reference to the subject-matter in litigation.

4. There are other objections to the Plaintiff's application. There is no evidence as to whether the Defendant was still within the Colony or whether there remained any more urgency as at the 26th May. It is fundamental that no Court would grant an order in futility. In view of the conclusions that I have arrived at on the issue of jurisdiction, it is quite unnecessary for me to have these proceedings further adjourned for prima facie evidence, if any, to be adduced on these matters. Likewise, no useful purpose may be served by ordering notice of this ex parte application be given to the Defendant. Suffice it for me to say that the ex parte application for an injunction restraining the Defendant from leaving Hong Kong does not fall into any of the categories specified in Sections 52(1) and 37 of the Ordinance and is wholly extrinsic but not ancillary to the substantive cause of action in this case which is a monetary claim for charges for services rendered and victuals and board supplied by a hotel to the Defendant. It remains for me to, and I do, dismiss this application with no order as to costs.