Lily Hui v. Leung Pak Wai and Others

HCA006472/1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Ryan, J. in Chambers

Date of hearing: 26th January 1996

Date of Judgment: 26th January 1996

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JUDGMENT

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1. The plaintiff issued a writ against the four defendants. The 1st defendant took out a summons to strike out both parts of the Statement of Claim which relate to the 1st defendant. The summons stated the grounds for striking out to be first, that the Statement of Claim showed no cause of action, and secondly, under the inherent jurisdiction of the court to strike out.

2. The summons came before Master Woolley who, because of time constraints, was only able to part-hear the matter. His note state:-

"Application for appeal dismissed in so far as it relates to striking out on the ground of no reasonable cause of action."

3. He then adjourned the summons part-heard to a date to be fixed and gave costs of that day to the plaintiff.

4. The 1st defendant did not apply to have the hearing of the summons restored. Instead an order was sealed stating, inter alia, that "the application on the part of the 1st defendant by way of summons dated 29th November 1995 be dismissed in so far as it relates to the striking out on the ground of no reasonable cause of action". The 1st defendant then proceeded to file a Notice of Appeal "against the decision and the order of Master Woolley given on 8th December 1995 refusing to order that paragraphs 9,10,12 and 13 of the Statement of Claim in so far as they are allegations against the 1st defendant herein be struck out and dismissed on the ground that it disclosed no reasonable cause of action."

5. Mr Daniel Wan for the plaintiff argued as a preliminary point that there is no decision or order against which an appeal may lie and that the appeal is misconceived.

6. The question of what is an order was considered in Kwok Man Chan & Ors v. Hang Tat Heating System Consultant Co. Ltd. & Anr [1992] HKCLR 261. Fuad VP had this to say at p.264:-

"The word 'order' is not defined in the Supreme Court Ordinance, nor is it defined in the Rules of the Supreme court. I accept that it has a very wide meaning, but it cannot be that every decision taken or ruling made by a judge in the course of a trial can be raised to the status of an order. The fact that the parties have agreed to the drawing up and filing of a document headed 'order' does not take the matter any further."

7. The order sought by the 1st defendant's summons was to strike out part of the Statement of Claim which related to the 1st defendant. That matter has not yet been resolved. There has been no final decision by Master Woolley to allow or to dismiss the summons. Until he does that, there is no "order" in respect of the subject-matter of the summons and there is no "order" from which to appeal.

8. The appeal is struck out as being incompetent.

Representation:

Mr Daniel Wan, inst'd by M/s Yolanda Fan & Co., for Plaintiff

Ms Teresa Cheng, inst'd by M/s Alan Lam & Norris Yang, for 1st Defendant