Liu Ying Wah and Others v. Great Mace Trading Co and Another
Read the full judgment text of HCA 5290/1979 on BabelCite. This High Court CFI judgment.
1. This action concerns a flat on the 22nd floor of Block 38 of Baguio Villa and car park space No. 164 ("the premises"). The Plaintiffs are the registered owner of the premises which were let to the 1st Defendant under a 6 year lease commencing on 15th June 1979.
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1979, No. 5290 IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Commissioner Litton, Q.C. in Chambers. Date of Judgment: 9th December, 1980. ----------------- JUDGMENT ----------------- 1. This action concerns a flat on the 22nd floor of Block 38 of Baguio Villa and car park space No. 164 ("the premises"). The Plaintiffs are the registered owner of the premises which were let to the 1st Defendant under a 6 year lease commencing on 15th June 1979. 2. On the 29th November 1979 the Plaintiffs started this action in the High Court claiming possession of the premises on the ground that the tenant had unlawfully sublet the premises to another party. There is no dispute that at the time the writ was issued the premises fell outside Part II of the Landlord & Tenant (Consolidation) Ordinance Cap. 7. 3. On 15th February 1980 Ordinance No. 6 of 1980 was enacted, the effect of which was to bring the premises within the scope of Part II. 4. On 21st February 1980 the 1st Defendant entered an unconditional appearance in this action and on the 14th March 1980 a defence was served. No point was taken in the defence regarding the jurisdiction of the High Court to entertain the Plaintiffs' claim. 5. Since then, there have been other interlocutory matters, including an Order made by the Registrar dated 25th July 1980 whereby the 1st Defendant was ordered to make interim payments to the Plaintiffs until further order. No point was taken by the 1st Defendant at the hearing of that application for interim payment that the Registrar lacked jurisdiction. 6. On the 17th September 1980 a Summons for Directions was taken out and on the hearing of that summons on the 9th October 1980 the Registrar ordered that this action be transferred to the Victoria District Court. The Appeal 7. Mr. Sammy Lee on behalf of the Defendants now appeals against the Order for transfer, arguing that the Registrar had no jurisdiction to make the Order and that the only Order the Registrar should have made was to rule that the action be dismissed for want of jurisdiction. He relies on the case of Kong Hao(Hong Kong) Ltd. v. Lau Hung Kwan(1) and in particular on the observations of Mr. Justice Trainor at page 67 following the passage which begins:-
8. Landlord & Tenant (Consolidation) Ordinance. 9. In considering the points raised by Mr. Sammy Lee, the following provisions of the Landlord & Tenant (Consolidation) Ordinance are relevant.
10. The effect of these provisions seems clearly to establish that the jurisdiction to make orders having the effect of terminating tenancies falling within Part II shall lie, and lie only, in the District Court. This accords with what Mr. Justice Trainor said in the Kwong Hao case. Jurisdiction 11. But Mr. Lee argues from this that the Registrar had no jurisdiction even to order transfer on the hearing of a Summons for Directions. I cannot follow this argument. 12. The High Court is a court of unlimited jurisdiction, to the extent that it has an inherent jurisdiction to regulate its own procedures, and it is a strong thing to say that a statute has had the effect of depriving it of jurisdiction in a particular matter. As to the jurisdiction to grant orders for possession of premises falling within Part II of Cap. 7, the statute makes it clear that the High Court has no such jurisdiction. But it does not thereby follow that it lacks jurisdiction in every other respect. 13. Section 40 of the District Court Ordinance states:- 'Where an action or matter commenced in the Supreme Court is within the jurisdiction of the Court ....... the Supreme Court or a judge thereof may, if it or he thinks fit, order the transfer of such action or matter to the Court and thereupon the Court shall have jurisdiction and authority to proceed therein.' 14. Here the action or matter was commenced in the High Court, and properly so commenced, but because of the enactment of Ordinance No. 60 of 1980 the District Court has been empowered to entertain the proceedings. Why should the High Court or a Registrar of the High Court as a procedural matter not order the transfer of the proceedings to the District Court? 15. Kong Hao (Hong Kong) Ltd. v. Lau Hung Kwan(1) was a very different case. The matter had been brought to a hearing and the jurisdiction of the Supreme Court was there invoked to grant an order for possession in favour of the landlords - an order which the Court was not empowered to grant. The very jurisdiction they invoked - the jurisdiction to grant an order for possession of premises falling within Part II of Cap. 7 - was lacking. It is not clear from the Report whether counsel for the landlord, seeing which way the wind was blowing, then asked for an order for transfer to the District Court. From the argument of counsel summarised in the Report, probably not. Whether this was sought or not by counsel for the landlord, I can see the arguments at that stage against a transfer. In so far as some of the language in Mr. Justice Trainor's judgment suggests that he was not merely considering the exercise of a discretion to transfer, but ruled as a matter of law that he had no jurisdiction to order a transfer, it was obiter. Ruling 16. In my judgment the Registrar had a discretion, on the hearing of the Summons for Directions, to order the case to be transferred to the Victoria District Court and properly exercised that discretion. The appeal is therefore dismissed with costs.
Representation: Mr. Sammy Lee (H.A. Hoosenally & Co.) for Defendants. Mr. Arthur Chan of M.K. Lam & Co. for Plaintiffs. (1) (1976) H.K.L.R. 62 |