Hock Finance Holdings Ltd v. Tat Ming Godown Co Ltd and Others

HCA000549/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Kempster, J.A. (sitting as an additional High Court Judge) in Court

Dates of Hearing: 29th, 30th and 31st October, 1984

Date of Judgment: 31st October, 1984

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JUDGMENT

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1. On or about 10th November 1982 and pursuant to an agreement whereby the plaintiffs agreed for reward and on the provision of security to open a letter of credit in their favour Tak Shing Hong Textiles (a firm) deposited with Tat Ming Godown Company Limited and that company agreed to store for reward to the order of the plaintiffs two consignments of goods acknowledged by godown warrants numbers 11222 and 11223.

2. On 4th December 1982, in an action of which the distinctive number was 11558 of 1982, the second defendants served on Tat Ming Godown Company Limited a writ of interim attachment issued at the instance of the second defendants pursuant to order 44A of the Rules of the Supreme Court. Judgment was entered, I think by default, in favour of the second defendants in that action as against Tat Shing Hong Textiles on 15th December. Thereafter the second defendants proceeded to execution obtaining a writ of fi fa directed to the bailiff requiring him to seize the goods, chattels and other property of Tat Shing Hong Textiles insofar as such goods could be found at Tat Ming Godown Company's premises. Nothing was indorsed by the second defendants or by their solicitors on the writ of fi fa and it is not suggested that they accompanied the bailiff on the execution. It was, therefore, left to the bailiff to execute the judgment that had been entered in the second defendants' favour on the goods of the judgment debtor arid on no other goods.

3. In fact the bailiff seized and, until the second defendants directed to the contrary, continued to hold the goods held by the godown company to the order of the plaintiffs which was an unlawful seizure. By paragraph 8 of the Re-Re-Re-Amended Statement of Claim the plaintiffs allege that the bailiff seized those goods under the direction of the second defendants. That, in my view, is the substantial issue which it falls to me to determine.

4. As a matter of history it is quite clear that following the seizure both the godown company and the plaintiffs made known to the second defendants the fact that the goods seized were claimed to be the property of the plaintiffs. Indeed, the plaintiffs provided chapter and verse.

5. A bailiff executes a valid writ of execution as an officer of the court and not as the servant or agent of the judgment creditor unless that judgment creditor by himself or his solicitors has given him specific directions to seize particular goods or otherwise intermeddled with the bailiff's responsibility under the write. In the absence of such specific direction or intermeddling the judgment creditor cannot be held vicariously liable for any unlawful seizure on the part of the bailiff. Further, as Park B. said in Howard v. Gosset⁽¹⁾ at p. 453:

"The sheriff and the officers executing a judgment however wrong the judgment may be or however mistaken they may be as to the effect of the judgment are not liable to have an action brought against them for damages for what they have done."

But that is academic because the plaintiffs are not suing the bailiff. To return to the issue which does fall for determination Green L.J. said in Williams v. Williams and Nathan ⁽²⁾ at p. 561:

".....a sheriff and a sheriff's officer, executing a judgment of the court, are acting, as one may say, on behalf of the court. Each is doing his duty as an officer of the court, and is not a servant or agent of the plaintiff who has recovered judgment in the action. Of course, there may be circumstances which show that the plaintiff by intervention had made the sheriff his agent to do something which was not covered by the judgment, or by the writ of execution. If I had thought that what happened in this case amounted to that, or that the county court judge had found as a fact that the landlord interfered, and requested the sheriff's officer to execute the judgment on property upon which he was not entitled to execute the judgment, then the judge would have been right."

There the judge had found that the landlord, being the judgment creditor, was liable. This principle was explained and emphasized by Lord Evershed M.R. in Barclays Bank v. Roberts ^(3).

6. It is urged on me by Mr. Mayne, who had said all that can be said on behalf of the plaintiffs, that by giving a particular address as one where goods of the judgment debtor were to be found the second defendants either directed or misled the bailiff into effecting his wrongful seizure. He relies, by way of analogy, on the case of Morris v. Salberg ⁽⁴⁾. But that was a case where the judgment creditor's solicitors had indorsed on the writ of fi fa the address not of the personal judgment debtor himself but that of his father; an interference which, the jury concluded, was calculated to mislead the sheriff into executing on the wrong goods. The judgment creditor was, in consequence, held liable. That seems to me a perfectly sensible decision but I find nothing in the materials before me to suggest that the second defendants by themselves or their solicitors did anything to mislead or direct the bailiff into seizing goods that were not those of the judgment debtor, Tat Shing Hong Textiles Company.

7. Where a bailiff seizes the goods of the wrong person under a valid writ without any direction or intermeddling from or by the judgment creditor a subsequent ratification or approval by the judgment creditor does not render him liable to the owner of the goods so seized. Wilson v. Tumman⁽⁵⁾; Morris v. Salberg ⁽⁴⁾ at p. 621 per Fry, L.J. Contesting an interpleader is not a ratification. Woollen v. Wright⁽⁶⁾ at p. 562.

8. In the event the plaintiffs' claim against the second defendants for damages for conversion must fail. At no time was the bailiff acting otherwise than as an officer of the court pursuant to a valid writ of execution. In the premises there will be judgment for the second defendants.

(1)    (1847) 10 Q.B.411

(2)    (1937) 2 All E.R. 559

(3)   (1954) 1 W.L.R. 1212

(4)   (1889) 22 Q.B.D. 614

(5)   (1843) 6 M & G 236

(6)   (1862) 1 H & C 554

Representation:

R.E. Mayne (Tsang Chau & Shuen) for plaintiffs

Bernacchi, Q.C. & R. Sujanani (Poon & Sum) for 2nd defendants & Third Parties