Yip Lai Ping Portia v. Dah Sing Finance Ltd

HCA015838/1999

HCA 15838/99

Headnote

Practice and Procedure. Appeal from Master. Application for an order under O.14A RHC for determination of questions of law. Applicant submitted that if the questions be answered in the negative, the matter will then proceed to trial. Held, it is essential that before the court entertains an application under O.14A the determination of the question, whichever way it is decided, should finally dispose (subject only to a possible appeal) of the cause or claim without a full trial. That was not the position in this case. Application refused. Appeal dismissed.

HCA 15838/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15838 OF 1999

Coram: Hon. Sakhrani J in Chambers

Date of Hearing: 31 May 2000

Date of Judgment: 31 May 2000

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J U D G M E N T

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1. The Plaintiff was the hirer of a motor vehicle which was a Mercedes Benz S320L with the registration no. or mark DG 1708 ("the said mark"). The defendant, as the owner of the vehicle, let the vehicle to the Plaintiff under a hire purchase agreement dated 1 November 1997 made with the Defendant. The Defendant provides vehicle financing.

2. The said mark was on or about 12 June 1996 assigned by the Commissioner for Transport for use with the vehicle. On or about 30 October 1997, the Plaintiff was registered as the owner of the vehicle bearing the said mark. Since about June 1999 the Plaintiff defaulted in her hire purchase payments and the hire purchase agreement was terminated by the Defendant on 8 July 1999. The vehicle was repossessed by the Defendant on 13 July 1999 and sold by the Defendant on 5 August 1999 for $403,000 to Hung Wai Motors Holding Ltd.

3. By para. 8 of the Statement of Claim, the Plaintiff alleges that wrongfully and without the consent of the Plaintiff, the Defendant, its agents or its employees transferred the said mark to Hung Wai Holding Ltd. by forging the signature of the Plaintiff for the transfer in the notice of transfer of registered ownership and alleges that the Defendant has wrongfully converted the said mark to its own use. By reason thereof, the Plaintiff alleges that it has suffered loss and damage and claims damages.

4. The Defendant took out a summons under O.14A r.1 RHC dated 8 January 2000 as well as for summary judgment under O.14 RHC on its counterclaim against the Plaintiff for outstanding amounts due to the Defendant under the hire purchase agreement. The counterclaim is for the sum of $70,006.57 and interest on $64,534.09 @ 3% p.m. from 9 July 1999 to date of judgment and thereafter @ judgment rate until payment.

5. The Defendant's said summons came before Master H C Wong on 20 March 2000. She gave the Plaintiff conditional leave to defend the counterclaim by payment into court of $70,006.57 within 21 days. She made no order on the rest of the Defendant's summons although it must be implicit that she dismissed the rest of the summons and in effect dismissed the application under O.14A.

6. The Plaintiff has not complied with the condition of payment in ordered. That being so, the Defendant has taken out a summons before me dated 23 May 2000 seeking an order that it be at liberty to enter final judgment for the sum of $70,006.57 together with interest on $64,534.09 @ the rate of 3% p.m. from 9 July 1999 to date of judgment and thereafter @ judgment rate until payment. The Plaintiff does not oppose the making of this order. I am satisfied that the Defendant is entitled to an order in terms of para. (1) of its summons dated 23 May 2000 and I make an order in those terms.

7. The appeal before me relates to the rest of the Defendant's application by its summons dated 8 January 2000. The Defendant asks for the determination under O.14A RHC of the following questions of law :

"1. on a true construction of the Hire Purchase Agreement dated 1 November 1997 and made between the Defendant and the Plaintiff and in the events which are admitted or alleged by the Plaintiff to have happened, whether the Defendant was entitled to transfer ownership of the Mercedes Benz saloon motor car model S320 bearing registration mark DG 1708 to Hung Wai Motors Holding Limited on or about 5 August 1999.

2. on a true construction of Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374, in particular regulation 16 thereof, and in the events which are admitted or alleged by the Plaintiff to have happened, whether on or about 5 August 1999 the Defendant transferred to Hung Wai Motors Holding Limited ownership and registered ownership of the said motor car and did not transfer registration mark DG 1708;

and that if the said questions be answered in the affirmative for an order that the Plaintiff's claim for loss and damage arising out of the Defendant's act in selling the said motor car be dismissed. "

8. The problem with the application is that if, however, the questions be answered in the negative, Mr Merry, counsel for the Defendant, submitted that the position is that the matter will then proceed to trial. I turn to the provisions of O.14A, r.1. Under O.14A, r.1 the court may determine any questions of law or construction of any document where it appears to the court that :

"（a） such question is suitable for determination without a full trial of the action; and

（b） such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein."

9. I note that under (b) above the consideration is that such determination will finally determine the entire cause or claim and not may finally determine. The court has a discretion to determine such a question where it appears to the court that (a) and (b) above are satisfied.

10. In view of the fact that the determination of the questions, if they are answered in the negative, will not finally dispose of the claim without a full trial, I am of the view that it is not appropriate for the court to deal with the matter under O.14A.

11. I would observe also that by marginal note 14A/2/10 in the 1999 White Book. It is stated :

"Upon making its determination of the question of law or construction, the Court may dismiss the action or make such order or judgment as it thinks just (r. 1(2):cf. O.33, r. 7). In this way, the action will be finally disposed of without a full trial and the judgment or order will have the same force and effect as the judgment or order after a full trial of the action."

12. In my view, it is essential that before the court entertains an application under O.14A, the determination of the question, whichever way it is decided, should finally dispose (subject only to a possible appeal) of the cause or claim without a full trial. That is not the position in this case.

13. Also, the position here is that the Defendant is prepared to assume the facts as pleaded by the Plaintiff as true for the purposes of the application. But the facts are very much in dispute and if the determination goes against the Defendant, all the disputed facts will be challenged at trial. The court is being asked to determine the case not on the basis of facts which are admitted by the Defendant but on assumed facts which are assumed only for the purpose of this application. That is not the same as admitted facts.

14. I refer to what I said in my judgment in Action no. 1208 of 1998 in Hondon Development Limited and another and Powerise Investments Limited and other dated 13 November 1998 at page 3 :

"Normally, the position is straightforward where facts are undisputed and a point of law needs consideration. It can be dealt with summarily as on the facts as admitted, the matter will finally determine the right of the parties, and in the ordinary case there is no need for a trial. Here, however, the 1st Defendant does not admit the facts. As 1 have set out what is stated in the summons, the issue that the court is asked to determine is on the basis of assumed facts, not admitted facts. That is not the same thing. If the court deals with the application under O. 14A as sought by the 1st Defendant, then if the issue is determined against the 1st Defendant, the 1st Defendant is not bound by the assumed facts but will be able to go to trial and challenge all the assumed facts. I note that r. 1 (1)(b) of O. 14A states that such determination "will finally determine", not "may finally determine". As I have said, if the matter goes against the 1st Defendant, the 1st Defendant will have an opportunity to challenge all the facts at trial. That is not, in my view, a final determination on the claim for rescission.

I was referred to Salaman v. Warner & others [1891]1 Q.B. 734 where it was held that a final order is one made where whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. In Salaman v. Warner & others, the court was considering the period of time for an appeal and the distinction between an interlocutory order and a final order, but I think the principle is the same. In my view, if the decision whichever way it is given will, if it stands, finally dispose of the matter in the dispute, in this case the claim for rescission, then I think it will finally determine that claim. That is not the position in this case."

15. In my judgment, it is not appropriate to deal with the matter on an O.14A application and the Master was right to dismiss the O.14A application as she must have done.

16. Furthermore, there are disputes of fact between the parties which have to be resolved at trial before there can be a determination of the questions of law raised. In support of the application the Defendant has relied on the affirmation of Hung Chun Yu of the Defendant. However, it contains hearsay matters that are not admissible in O.14A applications. O.14A applications are not interlocutory proceedings and the deponent may depose only to such facts as he is able of his own knowledge to prove (14A/2/8 White Book).

17. Here, there are disputed facts which include, inter alia :

（1） whether the Defendant forged the Plaintiff's signature on the notice of transfer of ownership to Hung Wai Motors Holding Ltd.;

（2） whether the Plaintiff made known to the Defendant her request before the sale of the vehicle by the Defendant to Hung Wai Motors Holding Ltd. that she wished to retain the said mark.

These disputed facts can only be resolved at trial.

18. As I have found that it is not appropriate to deal with the matter in an O.14A application and the matter will, therefore, have to proceed to trial, I do not think it is necessary or even desirable that I should express a view on the submissions made by counsel on the construction of the Road Traffic (Registration & Licensing and Vehicles) Regulations, Cap. 374. It is sufficient for me to say that the appeal is dismissed.

Representation:

Miss Barbara Wong inst'd by M/s Benson Li & Co. for Plaintiff

Mr Malcolm Merry inst'd by M/s K.B. Chau & Co. for Defendant