Chartered Finance (HK) Ltd v. Lee Seong and Another
Read the full judgment text of DCCJ 10124/1974 on BabelCite. This District Court judgment was delivered on 29 August 1975.
1. Both these actions arise out of hire-purchase agreements. One is brought against the hirer of the motor vehicle to which the agreement relates and the other against a guarantor as well as the hirer. In each the claim is for money but in each case it is a claim which is neither a claim for unliquidated damages nor a claim limited to the amount of instalments due and unpaid. If the actions had been brought in the Supreme Court there would be no doubt that judgment in default could only be enter
|
DCCJ010124/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 8670 OF 1974 -----------------
----------------- ACTION NO. 10124 OF 1974 -----------------
Coram: E.C. Barnes, D.J. Date of Judgment: 29 August 1975. ----------------- RULING ----------------- 1. Both these actions arise out of hire-purchase agreements. One is brought against the hirer of the motor vehicle to which the agreement relates and the other against a guarantor as well as the hirer. In each the claim is for money but in each case it is a claim which is neither a claim for unliquidated damages nor a claim limited to the amount of instalments due and unpaid. If the actions had been brought in the Supreme Court there would be no doubt that judgment in default could only be entered by leave of the Court under 0.84 R.3 RSC. But the solicitor for both plaintiffs has argued that 0.84 R.3 does not apply in the District Court and that he is entitled by virtue of the provisions in Rule 22 of the District Court Civil Procedure (General) Rules to have judgment entered without applying for leave. 2. Rule 9 of the District Court Civil Procedure (General) Rules provides as follows:-
3. There is no provision in rules of Supreme Court to the effect that 0.84 is not to apply in the District Court and 0.84 is not listed in the schedule referred to in Rule 9(2) District Court Civil Procedure Rules. But the argument is that since the R.S.C. apply subject to the District Court Ordinance and District Court Civil Procedure Rule and the overall aim of those provisions is to provide a simplified form of procedure modelled on that of the County Court in England the intent of the provisions is to eschew sophisticated procedures such as that set out in 0.84 RSC. 4. My attention has been drawn to O. 10 R. 2 of the County Court Rules and to a comment by Judge Liu in his ruling in Wayfoong Finance Limited v. Tommy Ng Sung Hei (V.C.J.5774/74) that in "like cases in the English County Court the plaintiff may simply enter judgment in default of defence". That provision applies however only in respect of default actions and by O. 6 R. 2 it is provided that a default action is not available where the debt or liquidated demand sought to be recovered is more than the amount of instalments due and unpaid under a hire-purchase agreement. An action brought on such a claim in the County Court must be an ordinary action. In any event, Judge Liu makes it quite clear that he considers that "O. 84 R. 3 RSC is made applicable to the District Court" and he points out how, even if a plaintiff commenced a default action on such a claim, he would have to amend and continue as an ordinary action. 5. Consequently, to hold that O. 84 RSC applies to the District Court does not have the effect of introducing into the District Court a procedure more complex than that available in the County Court. 6. The overall intent of O. 84 RSC is to provide the Court with a means of supervising claims for the payment of debt or liquidated demands arising out of hire-purchase agreements to ensure that judgment is not entered in respect of an unrecoverable sum of money. The aim is to put the Court on its guard and provide a means of preliminary investigation to ascertain whether or not the amount claimed, or part of it, may be a penalty. If it is clear that no part of the claim is a penalty the Court will grant leave to enter judgment. But if there are reasonable grounds, or there is a fair arguable case, for holding that the sum claimed may be a penalty leave will be refused and the Court will try the action. (The Supreme Court Practice 1973, sixth cumulative supplement, para. 84/1-3/8). 7. If O. 84 applied only in the Supreme Court the old result would follow that supervision over such claims would be restricted simply to those large enough to exercise the jurisdiction of the Supreme Court. Yet it is clearly the intent of O. 84 to ensure that judgment is not entered in respect of an unenforceable claim. It is not the magnitude of the claim to which odium attaches but its penal nature. There is therefore sound reason for holding that there is just as much need for O. 84 in the District Court as in the Supreme Court. Consequently, it seems to me that there would need to be a clear-cut indication in the District Court Ordinance or District Court Civil Procedure Rule that O. 84 was not to apply before I would be prepared to rule that it did not. Since I can find no such indication I rule that O. 84 does apply. 8. In each of these cases since the plaintiff has sued for a stipulated sum as a debt or liquidated demand and not for damages for breach of contract he cannot escape the operation of the Order. (The Annual Practice 1973, para. 84/1-3/4).
Certified true copy:-
Representation: |