Bernell v. Shaw v. James F. Brown Jr.
Read the full judgment text of HCMP 199/1969 on BabelCite. This High Court CFI judgment.
1. This is an application to set aside an order made by Mr. Commissioner Morley-John in Chambers on 31st October, 1969 on the grounds that it was irregular. The application is made by summons under Order 2 rule 2.
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HCMP000199/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 199 OF 1969 -----------------
----------------- Coram: Briggs J. in Chambers Date of Judgment: 6th October, 1970. ----------------- JUDGMENT ----------------- 1. This is an application to set aside an order made by Mr. Commissioner Morley-John in Chambers on 31st October, 1969 on the grounds that it was irregular. The application is made by summons under Order 2 rule 2. 2. The summons is brought on behalf of the intended defendant in an action. But up to now the intended defendant has not been served either with the writ in the action or with any other papers. However in this judgment I shall refer to him as 'the defendant' for convenience. 3. A statement of claim in the action has been filed and it alleges that $34,825.25 is due and owing to the plaintiff by the defendant. 4. An order for leave to issue the writ of Summons out of the jurisdiction on the defendant was made on October 22nd, 1969. However the writ in question is dated October 31st, 1969. On the same date as leave to issue the writ out of the jurisdiction was granted, i.e. on October 22nd 1969, the Court also ordered the defendant to furnish security by depositing $34,825.25 the sum claimed, in Court within 10 days. In default, it was ordered that the account of the defendant with a named Company be attached. Liberty was given to apply in the event of the defendant attempting to liquidate that account. 5. Before the expiry of the period of 10 days the plaintiff, having grounds to believe that the defendant might remove the money standing in his name in the said account, obtained an order that that account be attached. The order is dated 31st October, 1969 and it is this order which it is sought to set aside by the present summons, on the grounds of irregularity. 6. As I have said, that Summons is brought under Order 2 rule 2. While it is open to a defendant to proceed in this manner it would I think have been a more correct procedure for the defendant to have entered a conditional appearance or an appearance under protest. Such a course is not the equivalent of taking a fresh step after becoming aware of an irregularity, so as to fall foul of Order 2 rule 2(1). 7. Mr. Martin Lee for the defendant complained of three main irregularities. The first is that the application for attachment was made by an exparte summons issued before the date of the writ. The application for attachment was numbered in the Registry as M.P.O.J. 199 of 1969 and it is dated 22nd October, 1969. The writ was numbered 1353 of 1969 and is dated 31st October 1969. As I have already noted leave to issue the writ out of the jurisdiction was granted on 22nd October though the notice of the writ bears the same date and number as the writ itself. That application was, I note, to serve the notice of the writ out of the jurisdiction. It should have been an application to serve the writ itself. In this respect our Rules of Court differ from the corresponding Rules in the White Book. 8. It is clear from the record that the first step in this action was the application to the Court for leave to file a writ out of the jurisdiction. The irregularity complained of is that that proceeding bears a different number from the notice of the writ and the writ itself. This is not in my view an irregularity of such a nature as to render the proceedings a nullity. This is not a ground for setting aside the whole proceedings or even part of them. I will however order that the writ of summons to be served out of the jurisdiction and the writ of summons itself which are both now numbered O.J. 1353 of 1969 be renumbered with the number of the order for service of the writ out of the jurisdiction namely M.P.O.J. 199 of 1969. All further steps in this action must be similarly numbered. 9. The second irregularity of which the defendant complains is that the order of 22nd October 1969 by which the defendant was required to furnish Security was not served on the defendant. Indeed it never has been served up till now. 10. This order was made under the provisions of Order 44A rule 7. This is an order idiosyncratic to Hong Kong. There is nothing similar in the White Book. Rule 7 deals with the interim attachment of property. The rule does not require that there should be service on the defendant. In the present case affidavit evidence clearly shows that the defendant had knowledge that the plaintiff was taking proceedings against him for debt. In my view that is enough for the operation of the order which is clearly designed to attach any property of a defendant which may be found within the jurisdiction of the Court. Such an order does not divest the rights of the defendant thereto, it only prevents the defendant from making use of it or of removing it from the jurisdiction. It as it were, freezes it. And of course upon a defendant satisfying an order made for providing security any order of attachment will be discharged. This somewhat drastic procedure is allowed by the rules and I do not think that there has been any irregularity here. 11. The third irregularity complained of is that Order 44A rule 7(1) has not been strictly complied with. That sub rule reads as follows:-
12. Mr. Martin Lee contended that the words "at the institution of the action" means at the date of the filing of the writ. His argument is that a person cannot make use of rule 7 until and unless an action has been begun. In the present case the Order made under the rule was made 9 days before the date of the filing of the writ. 13. This is an attractive point and at first I was inclined to think that it had merit. But I think it fails because the institution of this particular action - the first step taken by the plaintiff, was to apply to the Court for leave to serve the writ out of the jurisdiction. The second shows that that summons was heard a few minutes before the order was made under Order 44A rule 7. So by the time that that order had been made the action had already been instituted or commenced. 14. I have dealt above with the fact that the writ and the order bear different numbers. A glance at the affidavits filed in support of the application for an order for leave to serve the writ out of the jurisdiction most clearly shows that we are dealing here with only one action. The exact facts which are set out in the statement of claim are set out in those affidavits. 15. It is almost certain that a copy of the intended writ was shown to the Judge at the hearing in Chambers. Mr. Hobson who appeared on behalf of the plaintiff and who conducted the proceedings before me could not remember whether that was the true position: and there is nothing in the Judge's notes to assist us. If the writ has not already been filed by the time an application is made to serve it out of the jurisdiction; this should always be done. If it was not done it could be said to be an irregularity. But in the present case, even if it were not done, in view of the contents of the affidavits and the wording of the statement of claim which was endorsed on the writ it is not such an irregularity so as to entitle the defendant to have the proceedings set aside. 16. Certain other points were raised but do not call for comment. 17. The summons is dismissed. Costs reserved. 18. Certificate for counsel.
6th October, 1970. Representation: Hobson (Deacons) for plaintiff. Martin Lee (Johnson, Stokes & Master) for defendant. Oral judgment of 1st October, 1970 reduced in writing. |