Young's Engineering Co. Ltd. v. Hang Sing Constrution Co. Ltd.

CACV000154A/1984

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date of hearing: 25th January 1985

Date of delivery: 25th January 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Plaintiffs in this action applied for summary judgment. An order for summary judgment was made and there was an appeal. In the mean time execution had been levied by way of garnishee proceedings and the money was paid. On the appeal we granted unconditional leave to defend. We then ordered that the money paid should be repaid. There was a further claim for interest on the money which had been in the possession of the Plaintiff under the order appealed from.

2. We today are concerned with the claim for interest and with an application for the order for the payment of costs in the garnishee proceedings to be set aside. This raises an interesting point whether there is jurisdiction in this court to order the payment of interest on a sum of money which has been ordered to be repaid on appeal.

3. The suggestion is, first, that there is a statutory power and, secondly, that there is an equitable jurisdiction. In my judgment there is no jurisdiction on either count. Clearly s.48 of the Supreme Court Ordinance is not applicable. All that can be said is that it was fair that we should order that the sum of money should be repaid and that it is also fair that the Plaintiffs should not have the benefit of the use of the Defendant's money without paying interest. That may well be so, but the equitable jurisdiction is not synonymous with the doing of what the court may think is fair and reasonable. We have been shown no equitable jurisdiction which covers the award of interest, and I therefore would dismiss the application for the payment of interest. Equally it seems to me that the costs of the garnishee proceedings would not have been incurred had the money been paid without the necessity for garnishee proceedings resulting from the Defendant's failure to pay. Although it is in a sense hard that the Defendants should have to pay these costs, I do not think that we ought to order that the order be set aside.

Cons, J.A.:

4. I agree with my Lord and ,would not make the order for interest or the order for setting aside the earlier for costs that have been asked for.

Fuad, J,A.:

5. I also agree.

25th January 1985

Representation:

Anthony Rogers, Q.C. & J. Pinto for Appellant.

Barry Barlow for Respondent.