Blooming Textiles Ltd v. Hock Finance Holdings Ltd

HCA011558/1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

_______

Coram: Hon. Clough, J.

Date: 1 DEC 1983

__________

JUDGMENT

__________

1. On the 7th November 1983 I dismissed an appeal by the Plaintiff in respect of certain awards of costs to the 17th Claimant contained in an order made by Master Hansen on the 7th July 1983 at the conclusion of protracted interpleader proceedings under Order 17. These are my reasons for my decision.

2. The Master having made his order on the 7th July purported to give leave to appeal against his order to the Plaintiff on the 12th July 1983 when both parties were represented by junior counsel. The Plaintiff's notice of appeal is dated the 13th July 1983 and contains particulars of the awards of costs which are the subject of the appeal and of the relief sought by the Plaintiff if the appeal should be successful.

3. The Plaintiff who was represented by Mr. Desmond Keane, QC, invoked Order 58 rule 1 for the competence of this appeal before the judge in chambers. Mr. Henry Litton, QC, appearing for the 17th Claimant did not initially take any point on jurisdiction and he made it clear to the court from the outset that his clients had not challenged the jurisdiction it any time prior to the hearing of the appeal. However after I had raised the question whether a judge in chambers had jurisdiction to hear this appeal Mr. Litton formally objected to the jurisdiction.

(3)    In the case of an appeal in interpleader or garnishee proceedings the time within which notice of appeal must be served shall be the same as in the case of an appeal from an interlocutory order."

4. Order 58 is clearly derived from the corresponding Order in the English Rules of the Supreme Court. No difficulty of interpretation arises in relation to rules 1 and 2 of the English Order because rule 1(1) of the English Order begins With the words "Except as provided by rule 2". Moreover the mutual exclusivity of rules 1 and 2 is emphasised by the headings to the two rules. Rule 1 is preceded by a heading "Appeals from certain decisions of Masters, etc. to judge in chambers" whereas rule 2 is preceded by the heading "Appeals from certain decisions of Masters, etc. to Court of Appeal".

5. By contrast, although the heading to rule 2 in the Hong Kong Order follows the English wording, the heading preceding rule 1 is "Appeals from decision of the Registrar" and is quite general.

6. I accept that if the local rules 1 and 2 are read literally the result is to produce a concurrent right of` appeal in interpleader matters enabling the aggrieved litigant to elect whether to appeal to a judge in chambers under rule I or direct to the Court of Appeal under rule 2. I find it impossible to believe that the Rules Committee when exercising its powers under section 54(2)(b) of the Supreme Court Ordinance (Cap. 4) could have intended to depart from the English practice at the time and to create an entirely novel concurrent right of appeal. Indeed the novelty of such a notion is emphasised by the fact that, so far as I am aware, it has never before been suggested that, for example, when there has been an assessment of damages under Order 37 a party can elect to appeal from the assessment initially to a judge in chambers under rule 1 and thereafter to the Court of Appeal under section 14(1) of the Supreme Court Ordinance.

7. If rules 1 and 2 had been made at the same time the argument for a literal interpretation producing concurrent rights of appeal might be more persuasive, but the historical background of these rules seems to be that rule 2 was a subsequent innovation introduced by L. N. 99/73 (and subsequently replaced by L. N. 51/76) as a deliberate measure designed to follow the English practice as then provided in the concurrent right of appeal to the judge in chambers or to the court of Appeal. In my judgment the present practice in Hong Kong is fully covered by rules 1 and 2 of Order 58 and there is no need to look beyond them.

8. Having concluded that I did not have jurisdiction to entertain this appeal I considered it was my duty to put an end to the proceedings. I was urged by Mr. Keane to make no order but I accepted Mr. Litton's argument that there was in fact an appeal before me and that it was my duty, having arrived at the decision that there was no jurisdiction, to dismiss it. There being no rule providing for a transfer of an appeal in a situation of this kind I concluded that the proper course was to dismiss the appeal as being incompetent. A similar course was evidently adopted by the English Court of Appeal in Westminster Bank Ltd. v Edwards (supra) although the order was subsequently reversed by the House of Lords on the merits: see P. 536 per Lord Wright as to the terms of the order made by the Court of Appeal.

9. Having heard argument on the question of costs I concluded that this was a situation where my discretion was exercisable under Order 62 rule 3(3) and that the failure of the 17th Claimant to take the jurisdiction point before the hearing was not a sufficient circumstances to prevent the order for costs following the event. I add that my decision would have been the same if I had been exercising my discretion under Order 62 rule 3(2) because I considered that the Plaintiff, having been brought to court on the appeal by the 17th Claimant, should have its costs of the abortive appeal notwithstanding the fact that it did not take the jurisdiction point until it was raised by the court.

Representation:

Mr. D. Keane, QC, with Mr. R.K. Sujanani instructed by Hesssrs Poon & Sum for the Plaintiff

Mr. Henry Litton, QC, with Mr. Westley Wong instructed by Messrs Tsang, Chau & Shuen for the 17th Claimant