Hui Kwun-sun v. Chung Wing-cheung

HCSA000001/1977

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 27 March 1979

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JUDGMENT

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1. This is an appeal on a point of law from a decision of the Small Claims Tribunal. The plaintiff brought two claims against the defendant. Both are dated December 1st, 1976. In claim No. 457 of 1976 the claim was for the sum of $1,800 for "transport cowhide charges". The plaintiff claimed to have transported a cargo of cowhides from a ship to the defendant's leather factory. The second claim, No. 458 of 1976 was also for the sum of $1,800. This was again for "transport cowhide charges" and relates to the same transaction as the first claim. The Adjudicator consolidated the two claims and gave judgment to the plaintiff for $2,360.60.

2. The reason for this was that the plaintiff admitted, when giving evidence, that the true position was that the transport charges were to be $2,360.60 if paid immediately delivery of the goods was made. And that he, the plaintiff, had added extra charges raising the amount payable to $3,600 because of the delay in the settlement of the claim.

3. At no time during the trial did the plaintiff seek to amend his claim to one for the true sum. He could not succeed on his original consolidated claim because it exceeds the jurisdiction of the Small Claims Tribunal which is limited to $3,000.

4. Both claims related to a single transaction. It may be that the plaintiff brought two separate claims in order to bring himself within the jurisdiction of the Tribunal. This is specifically forbidden by section 8 of the Small Claims Tribunal Ordinance. The plaintiff's claim must therefore fail.

5. Mr. Pirie, who appeared for the appellant, also took the point that there was an invoice and receipt signed by the respondent which, on their face, proved payment of the charges. The respondent's answer to this was that it was his invariable custom to issue an invoice and a signed receipt to a customer who would pay at a later date. It is unnecessary to come to a decision on this point.

6. The respondent is adamant that the appellant still owes him $2,360.6 and it is still open to him to bring a claim for that amount if he so wishes.

7. Be that as it may, this appeal must be allowed for want of jurisdiction. A sum of $2,360.6 has been paid into court. This must be paid out to the appellant. There will be no order for costs.

Representation:

Pirie (Hon & Co.) for appellant

Respondent in person

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 27 March 1979

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JUDGMENT

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Huggins, J.A.

This is yet another case showing the injustice likely to result from a well-intentioned interference with the normal judicial process. The parties, being disentitled to professional representation before the tribunal, failed to draw the attention of the adjudicator to his lack of jurisdiction. As a result they have been occasioned delay, inconvenience and expense in coming to this court.

The matter arose like this. The Respondent filed two claims for the price of the carriage of goods. Each claim was for $1,800, but it was apparent (and before us the Respondent has admitted) that both related to the same contract of carriage. The claims were consolidated and one judgment entered for $2,360.60. The Respondent had, however, never purported to limit his total claim and it was contrary to s. 8 of the Small Claims Tribunal Ordinance for him to split his claim for the purpose of bringing the sum claimed in each of the separate proceedings within the jurisdiction of the tribunal. The short answer to this appeal, therefore, is that the tribunal had no jurisdiction to hear the claims. The appeal must be allowed and the award set aside.

As the Respondent may now lodge a fresh claim in the tribunal, I do not think it would be right to leave the matter there. The learned adjudicator found that the order placed with the Respondent for the carriage of the goods originated from a third party "with the consent and knowledge of [the Appellant]". It was common ground that the Appellant had bought the goods from the third party and that, as between himself and the third party, the Appellant was to take delivery alongside the importing vessel and was liable to pay any charges for subsequent transportation. It does not follow that the third party was necessarily authorized to arrange transportation on behalf of the Appellant, so as to give the carrier a right of action against the Appellant.

27th March 1979.

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 27 March 1979

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JUDGMENT

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Pickering, J.A.:

I agree that this appeal must be allowed for want of jurisdiction since the claim was patently a split claim and as such flew in the face of the provisions of section 8 of the Small Claims Tribunal Ordinance. Since the Respondent still maintains that the Appellant owes him $2,360.60 it is open to the Respondent to bring a fresh action for that sum at his discretion. In the meantime however the sum of $2,360.60 paid into court must be returned. I would make no order as to costs.

Representation:

Pirie (Hon & Co.) for the Appellant.

Respondent in person.