Shing Top Trading Co (A Firm) v. Kuk Hing Wah t/a Star Sea Trading Centre (A Firm)

HCA014907/1983

Practice and Procedure

An appeal lies without leave from the Master to the High Court Judge on a question of costs.

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing: 3rd May, 1984.

Date of Delivery of Judgment: 14th May, 1984.

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JUDGMENT

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1. This is an appeal from the Master on a question of costs. Counsel for the plaintiff, whose appeal it is, sought my leave which he said was necessary by virtue of section 14(3)(e) of the Supreme Court Ordinance. I gave leave. The application was unnecessary as was my order. Section 14, like section 18 of the English 1981 Supreme Court Act which replaces section 31 of the 1925 Judicature Act, is concerned with appeals to the Court of Appeal. Section 14(1) of the Supreme Court Ordinance provides:-

"Subject to subsection (3), an appeal shall lie as of right to the Court of Appeal from every judgment or order of the High Court in any civil cause or matter."

By subsection (3):-

"No appeal shall lie"

Then are set out six circumstances including:-

I cannot read the section as biting upon appeals other than from the High Court to the Court of Appeal unless it be in those cases where appeal lies directly to the Court of Appeal from a Master or Registrar. Section 18 of the English Act is even clearer in its terms being introduced by the words "no appeal shall lie to the court of Appeal". In that, it differs from its precursor, section 31 of the 1925 Judicature Act which simply begins "no appeal shall lie". I was referred to a decision of the English court of Appeal in Purcell v. F.C. Trigell Ltd. & another, ⁽¹⁾ which is clear authority firstly for the proposition that "Court" in this context includes a Master exercising the powers of the High Court Judge in chambers and secondly, that under section 31(1)(h) of the 1925 Act, leave was necessary to appeal to the judge from a decision of the Master on costs. The second of those two propositions would not seem to hold good any longer in England by reason of the different wording of the 1981 Act and, in my judgment, it never did in Hong Kong. In my judgment, the question is disposed of by Order 58 rule 1 which provides :-

Even if it were not so, section 14(3)(e), unlike the corresponding provision in the English Act, does not restrict the giving of leave to the judge or court which made the order. Here, I am perfectly satisfied that there is sufficient reason for leave to be given if required as will appear from what follows in this judgment and were it is necessary to do so, I should allow my earlier, and as I now find, otiose order to stand.

2. The stringent conditions laid down by the Court of Appeal in Scherer & another v. count Instruments Limited,⁽²⁾ for a court exercising appellate jurisdiction to interfere with the exercise of a discretion on costs, only arise where leave is required and has not been obtained. They have no application in the present case.

3. The circumstances of the present case are these. The plaintiff has two actions running against the defendant. In the first, High Court Action No. 9818/83, the plaintiff sues for the sum of 110,000 being the amount of a dishonoured cheque drawn by the defendant upon the Hong Kong and Shanghai Bank with the plaintiff as payee. The defence is that the cheque was in payment for a consignment of frozen prawns which were bad, so that there has been a total failure of consideration, or alternatively that the cheque was issued as a result of the undue influence of a third party. The plaintiff went for summary judgment in that action.  Conditional leave to defend was given on terms that the defendant paid the full amount of the claim into court which the defendant did on 11th October 1983. The second action, 14907/83, in which the writ was issued on 9th December 1983 is a claim for the same $110,000, in effect being the price of the frozen prawns. On 24th January 1984, the defendant, who up to this time had been advised by a friend with some slight legal experience, applied to strike out the plaintiff's fresh cause of action as being an abuse of the process of the court. The summons was dismissed. On 1st February 1984, judgment in the second action was entered in default of defence. On 6th March 1984, the bailiff levied execution. On 10th March 1984, the defendant, by this time represented, applied to set aside judgment; which application was heard on 21st March 1984 and allowed. Put shortly, the defendant's case before the Master was that there being some duplication of proceedings he had not appreciated that it was necessary for him to put in a defence to the second action. No appeal lies against the Master's order setting aside judgment; only against the order of the Master requiring the plaintiff to bear the costs of the application.

(1) [1971] Q.B. 358 (C.A.)

(2) Fleet street Patent Law Reports [1977] 569

4. I am told that the intention may be to consolidate the two actions. Even so, the issuing of a second writ does seem a curious and expensive way of going about things. It may be a course which the plaintiff will have to justify at some stage and, win or lose, to bear the costs thrown away. I am not concerned with that. The costs of the application to set aside were incurred only because the defendant was in default of pleading. It is not possible to raise as an excuse the fact that there has been some duplication of proceedings because the application to strike out was dismissed and that decision never appealed. Nor is there any evidence before me to suggest that the defendant was in some way misled by the plaintiff as to the necessity of filing a defence. At worst, the plaintiff's solicitors can be accused of some lack of courtesy in not informing the defendant, then unrepresented, of their intention to apply for judgment. Prior to the hearing before the Master, the plaintiff was not asked to consent to an order, nor was any offer made to pay the costs thrown away as a result of judgment having been entered. The plaintiff was entitled to attend and be represented on the hearing. In my judgment, this appeal should be allowed and the costs of the application to set aside judgment will be the plaintiff's in any event. I make an order nisi for the costs of this appeal and the costs thrown away to be the plaintiff's to be made absolute in 14 days failing application.

5. This judgment has been delivered down in open court with the consent of both parties.

Representation:

Sammy Lee (Leonard K.L. Heung & Co. ) for plaintiff.

Thomas Lai (Liu, Chan & Lam) for defendant.