George Y C Mok & Co. (A Firm) v. Tang Kwong Ming and Another

HCMP007175A/1999

HCMP 7175/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 7175 OF 1999

____________

____________

Coram: Hon Yuen J in Chambers

Date of Hearing: 10 January 2001

Date of Decision: 10 January 2001

_______________

D E C I S I O N

_______________

1. There is an application before me under Order 45 r.6 of the Rules of the High Court for an order that the Applicant do, pursuant to the Order made by Deputy Judge Chu (as she then was) on 21 July 2000 as amended on 26 July 2000, pay to the 1st Claimant, through the 1st Claimant's solicitors, the balance of the funds apportioned under the Common Accounts in the sum of HK$254,355.70 within 14 days from the date of the Order.

2. The history of the matter, very briefly, is that the Applicant is a solicitor who was the stakeholder of an amount which was in dispute between the 1st Claimant and the 2nd Claimant. He took out interpleader proceedings.

3. At first, the 1st Claimant objected to the interpleader proceedings because he alleged that the 1st Applicant was in collusion with the 2nd Claimant. However, by July 2000, that matter had been dealt with, with the 1st Claimant withdrawing the allegation of collusion.

4. On 21 July 2000, the matter came on before Deputy Judge Chu (as she then was), and she made an Order in the following terms: that amongst other things, after various deductions which were referred to in paras. 1, 2 and 3 of the Order, the balance of the money kept in the Common Accounts together with interest accrued thereon up to 26 May 2000, be apportioned to the 1st and 2nd Claimants with the sum of $4.5 million odd to the 2nd Claimant and a sum of $8.6 million odd to the 1st Claimant. Para. 5 of that Order then reads that subject only to the aforesaid deductions, the money in the Common Accounts as apportioned aforesaid be paid to the respective solicitors for the Claimants within 7 days from the date thereof.

5. It would appear from the Reasons for Decision that were given by the learned judge on 26 July 2000 that on 21 July, counsel for the Applicant had asked for 14 days to effect payment out to the Claimants on the ground that the Applicant needed time to set off against the money apportioned to the 1st Claimant fees allegedly due from the 1st Claimant to the Applicant in respect of other matters. Counsel for the 1st Claimant raised objection to such set-off.

6. The learned judge indicated that she had reservations as to the legal basis or propriety of the Applicant applying any set-off or lien against a fund stakeheld by it and which formed the subject matter of interpleader summons. Accordingly, she therefore ordered that the Applicant should pay out the net balance of the fund to the Claimants within 7 days.

7. Apparently, on 26 July before the Order was perfected, the parties appeared before the judge again for two purposes. The first was a variation of the Order by reason of an arithmetical error, and the second reason was to enable the Applicant to renew the matter of set-off and solicitor's lien. That was resisted by the 1st Claimant.

8. In her Reasons for Decision, the judge did indicate that she thought she was functus. I pause there to note that she might not have been functus because the Order had not yet been perfected. However, it is clear from the Reasons for Decision that the judge considered that she had already dealt with the issue of the claim of lien on the first occasion, i.e. on 21 July, and on 26 July 2000, she reiterated the reasons for her rejection of the claim for a set-off.

9. I will not repeat here the judge's reasons which are set out extensively in her Reasons for Decision dated 26 July 2000. It seems to me that if the Applicant took the view that he was entitled to a lien and therefore a set-off that he should appeal the deputy judge's order of 21 July 2000. He has not done so. The upshot of it is that the Applicant has today not paid to the 1st Claimant an amount which is his claim of fees.

10. The present summons is made under Order 45 r.6 of the Rules of the High Court which permits a court, notwithstanding that an order requiring a person to do an act specifies a time within which the act is to be done, to make an order requiring the act to be done within another time, being such time after service of that order as may be specified or such other time as may be specified therein.

11. Therefore, it is clear that I have jurisdiction to make the present order as it were extending the time for payment to a period within 14 days from today.

12. I am prepared to make such an order as it seems to me that the matter is res judicata, the learned judge having on both 21 and 26 July ruled on the issue that the 1st Claimant should not be subject to this lien which is claimed by the Applicant. As I have said, if the Applicant takes the view that the judge was wrong, then he should appeal from that order.

13. Accordingly, I would grant an order in terms of para. 1 of the summons of 15 December 2000 in the manner indicated earlier.

14. As for para.2, there seems to be a dispute between the parties as to whether the cheque representing the interest accrued had or had not been delivered to the 1st Claimant. It seems to me that the most expeditious and time efficient way of dealing with the matter is for me to order that the Applicant do deliver to the 1st Claimant's solicitors by 5.00 p.m. tomorrow a cheque for the interest accrued under the Common Accounts after 26 May 2000 and up to the closure of the Common Accounts (and of course the Applicant can therefore cancel the cheque the existence or the location of which is disputed by the parties).

15. I will now hear the parties as to costs.

Representation:

Mr Bernard Mak, instructed by Anthony M F Ko & Co., for the 1st Claimant

Mr Clifford Smith and Mr Richard Leung, instructed by George Y C Mok & Co., for the Applicant