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International Textiles Co. v. Ng So Ngor

Read the full judgment text of DCCJ 11609/1991 on BabelCite. This District Court judgment.

1. The Plaintiff came before me for examination of judgment debtor under Order 49B.

Case No.DCCJ 11609/1991
Court
District Court
Date—
Judge—
Case Document
100%Judiciary

DCCJ011609/1991

District Court CJ 11609 of 1991

HEADNOTE

Execution of Judgment - action transferred to District Court for execution - action merges with judgment - Plaintiff have a right to enforce a High Court judgment in that Court.

Plaintiff obtained judgment in High Court for an amount which is within the jurisdiction of this District Court. Application was made for the examination of judgment debtor under Order 49B in the High Court. Action was transferred to the District Court.

Held :

1) An action, in its proper sense, is to continue until judgment has been given;

2) District Court only has power to enforce judgment of another Court if power was conferred by statute.

3) The Plaintiff has "a right to enforce in the High Court any judgment signed or order made in that Court before the transfer" section 44(2) District Court Ordinance;

4) Action transfer back to High Court.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION No. 11609 of 1991

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BETWEEN

INTERNATIONAL TEXTILES COMPANY (a firm)

 Plaintiff

AND

NG SO NGOR

 Defendant

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Coram: H.H. Judge W. Wong in Court

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JUDGMENT

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1. The Plaintiff came before me for examination of judgment debtor under Order 49B.

2. The events leading to the matter being placed before me are as follows :-

1) The Plaintiff commenced an action in the High Court against the Defendant on dishonoured cheque in the sum of $75,000 on 21st May 1990;

2) The Defendant filed a Defence and Counterclaim on the 9th July 1990;

3) The Plaintiff took out a summons under Order 14 Rule 1 and alternatively to strike out parts of the Defence and Counterclaim under Order 18 Rule 19 on the 20th August 1990;

4) On the 10th December 1990 Master J. CHAN ordered, inter alia, that the Defendant be given conditional leave to defend by payment into Court the amount claimed within 14 days failing which the Plaintiff would be at liberty to enter judgment as claimed. There was no order in respect of the Counterclaim;

5) The Defendant failed to make payment into Court;

6) Judgment was entered in favour of the Plaintiff on the 8th January 1991;

7) On the 15th May 1991 the Plaintiff applied ex parte for an order for the judgment debtor to be examined under Order 49B;

8) The following words were marked on the margin of the application in pencil : "Judgment debt does not exceed $120,000 - Proceedings be transferred to District Court?"

9) On top of the pencil marking was a chop and writings in ink.

Before Master : Woolley

Order : Action transferred to District Court

Initial : illegible

Date : 17.5.1991
10) On the 14th June 1991 the Plaintiff's solicitors wrote to the Clerk to Master Woolley contents of which are as follows :-

"Re : High Court Action No. A3268 of 1990

        We refer to your note dated 17th May 1991 and we note the order granted by Master Woolley to the effect that the case is to be transferred to the District Court.

         We believe that Master Woolley made such order in the light of the amount of the judgment sum. We however cannot help wincing at the amount of legal costs and work which would be involved in relation to the transfer. It is our understanding that the High Court has jurisdiction to entertain claims of this size, if litigants are prepared to accept costs on District Court scale. You will note that we commenced the present proceedings in the High Court for good reasons, i.e. so that Order 14 proceedings could be commenced, which we did commence and succeed.

          In the circumstances we should be grateful if you would kindly place this letter before Master Woolley, so that he can consider setting aside his Order and to allow our application for examination of judgment debtor to go ahead. Such would undoubtedly save us time and effort.

We thank you for your assistance."
11) The learned Master's clerk duly endorsed on that letter asking for directions on 20th June 1991;

12) Endorsed on that letters the words "My original order stands."

3. My Brother Judge Downey in District Court Actions Nos. 3626 of 1991 and 3627 of 1991 Diners Club International (H.K.) Limited v. SO Yip-wai and others had dealt with this point fully in his judgment. I agree entirely with the detailed reasons set out in his judgement. The following are the salient points of his judgment :-

1) The Judgment together with costs may exceed the District Court jurisdiction (which does not apply in this case);

2) Cause of action merges in the judgment. Section 40 of District Court Ordinance permits transfer of "action or matter" but arguably is narrower than Section 40 of the County Courts Act 1984 which permits transfer of "the whole or any part" of the proceedings;

3) Enforcement of judgment or order in a Court other than that where it was entered or made can only be done by virtue of some power conferred by statute.

4. In the present case the Plaintiff has already obtained judgment in the High Court. After judgment and upon application by the Plaintiff to begin process of examination the learned Master ordered "Action transferred to District Court". Stroud's Judicial Dictionary cited the following passage from Co. Litt. 289a on "ACTION". "Regularly, an action is said, in its proper sense, to continue until judgment bee given, and after judgment then doth process of execution begin; and, therefore, a release of "all actions", regularly, is no barre of execution, for execution doth beginne when the action doth end." Apart from the Counterclaim which no order has been made the action merged upon judgment. The only action which was transferrable to the District Court was the Counterclaim.

5. It was argued that Section 40 of the District Court Ordinance gave wide power to the High Court to order the transfer. However when Section 40 is read in conjunction with the proviso in Section 44(2) which states, "Provided that the transfer shall not affect any right of appeal in the High Court or to the Court of Appeal from the order directing the transfer, or the right to enforce in the High Court any judgment signed or order made in that Court before the transfer" it is clear that Section 40 conferred the power to transfer the action not the judgment.

6. The Plaintiff has applied to enforce the judgment in the High Court by the ex parte application.  The letter of the 14th June 1991 by the Plaintiff's solicitors to the learned Master's clerk has clearly indicated the Plaintiffs desire to have his right to enforce the judgment in the High Court. Even if I am wrong in saying that action merges with judgment, it remains a fact that the Plaintiff has a right to enforce that judgment in the High Court.

7. In the circumstances I order that this action be transferrd back to the High Court so that the Plaintiff can continue to exercise its right to enforce the judgment there.

8. As there have been quite a number of actions being transferred to the District Court when Plaintiff attempted to execute after judgments have been obtained in High Court, I give leave and encourage the Plaintiff to appeal to the Court of Appeal so that the Court of Appeal can give a decision on this controversy. It is regretted that this action has to go up and down between the High Court and the District Court like a yo yo and considerable costs have been wasted but this matter has to be resolved once and for all.

(Wesley WONG)
District Judge