Kwok Ping Sun v. The Attorney General

HCA005820/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Power J., in Chambers.

Date of hearing: 26th July, 1985.

Date of delivery of Judgment: 6th August, 1985.

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JUDGMENT

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1. In this matter the Plaintiff on the 7th July 1982 commenced an action against the Attorney General seeking declarations with regard to a piece of land which he owns situated in the New Territories and damages for trespass upon the said land and for loss of the use of part thereof. A Statement of Claim was filed on the 23rd September 1982 and on the 1st December 1982 the Attorney General entered a defence in the action which the Attorney General denied that the Plaintiff was entitled to any of the declarations sought or to any of the damages or other relief claimed. On 26th November 1983 a Summons for Directors was taken out in and an order thereon was made on the 20th December 1983. On 28th June 1984 the Plaintiff entered into an agreement for sale and purchase of the said land with Lintock Company Ltd. (Lintock) Under that agreement the Plaintiff sold the subject land 'together with all the rights, claims, demands, benefit and interest of the Vendor of in and to the said land and the said action and litigation and prosecute proceed with continue and pursue to judgment or conclusion the said action and litigation in compromise settle, withdraw or discontinue the same'. Although the paragraph is not worded grammatically no issue was made that it was intended thereby to transfer the land and the rights, claims, demands, benefit and interest of the Plaintiff in this action to Lintock. The Agreement recited that the Vendor as Plaintiff had 'brought proceedings in the High Court being Action No. 5820 of 1982 against the Attorney General as defendant seeking declaration that the status or class of the said land is a building land or use and damages for trespass and loss of use of a part of the said land measuring about 700 square metres and the litigation in such action is still pending'. The agreement also set out in paragraph 17 that 'the Vendor hereby authorizes and appoints the purchaser, in the Vendor's name to prosecute, proceed with, continue, and pursue to judgment and conclusion the aforesaid High Court Action No. 5820 of 1982 and also to compromise, settle, withdraw or discontinue any such steps and proceeding as the purchaser shall, in his absolute discretion think fit, any time before completion of this Agreement and for all or any of the said purposes to engage and appoint surveyors, solicitors, counsel experts and other agents provided that the purchaser shall be and remained liable and responsible for all the cost and expense and disbursement incurred or to be incurred in connection with all, or any of the said purposes, or account thereof, or in relation thereto howsoever occasion and keep the Vendor fully indemnified from and against the same and any losses or damages and all consequences thereof.

2. In the assignment which was dated 28th June, and which was registered in the Tsuen Wan District Land Office on the 13th July, stated that the Vendor had assigned to the purchaser all of the subject land 'together with the rights, claims, benefit and interest of the Vendor in connection with or arising from the said action'.

3. The Plaintiff now makes application to the Court for an order that Lintock Co. Ltd be added as a Plaintiff in this action and designated as the 2nd Plaintiff. The Plaintiff also seeks to be allowed to amend the writ of summons and Statement of Claim. The application is brought under Order 20 which deals with the amendment of the pleading and Order 15, Rule 6 and Rule 7.

4. It is the contention of Mr. Allman-Brown who appears for the Plaintiff that Rule 6 and Rule 7 of Order 15 so overlap in their application that both can be prayed in aid in this application. He suggested that this overlapping is demonstrated by the fact that Showell v. Winkup (1889) 60 L.T.389 is cited in the notes in the White Book to both Rule 6 and Rule 7. Rule 6 deals with "Mis-joinder and Non-joinder of Parties" and Rule 7 deals with "Change of Parties by Reason of Death, etc." Rule 6 gives the Court power to order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party to cease to be a party. It also gives power to the Court to order to be added any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon or any person between whom and any party to the cause there may exist a question arising out of any relief claimed which in the opinion of the Court, it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

5. Rule 7 allows the Court, if it thinks necessary, in order to ensure that all matters in dispute in the cause may be effectually and completely determined to order, where at any stage of the proceedings the interest of any party is assigned to some other person, that other person be made a party to the cause and the proceedings be carried on as if the other person had been substituted for the first mentioned party.

6. Mr. Strawbridge for the Defendant submits that Rule 6 has no application at all as there has been in the present case no mis-joinder or non-joinder or parties. He says further that there is presently no matter in dispute between the Plaintiff and the Defendant the determination of which would be assisted by joining the Lintock. Mr. Strawbridge also advanced an argument which relied upon the running of the limitation period. I saw no merit in that argument and do not intend to canvass it further. I am unable to find any real argument against Mr. Strawbridge's contention with regard to  Rule 6. If Rule 6(2) (b) were to apply the Court would have to be satisfied that the presence of Lintock before the Court was necessary to ensure that all matters in dispute in the cause could be completely determined. How can this possibly be so? All of the rights in the land and in the action have been transferred by the Plaintiff to Lintock. The Plaintiff no longer has any interest to pursue. There is no matter in dispute between the Plaintiff and the Defendant.

7. Can Rule 6(2)(b)(ii) be said to apply? For it to apply there must exist an issue arising out of a claim between Lintock and either the Plaintiff or the Defendant which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. There is no issue between Lintock and the Plaintiff. It is true that there may be one between Lintock and the Defendant but it cannot be said that it would be just and convenient to determine that issue as well as that between the parties as there is no longer any issue between the parties. I am satisfied that Rule 6 has no application.

8. I turn to Rule 7. This rule has application to any action where a party assigns to some other person his interest in the cause. If this has been done, the Court, if it thinks necessary in order to ensure that all matters in dispute are determined, may order the other person to be made a party and the proceedings to be carried on 'as if he had been substituted for the first mentioned party'. This rule would have clear application to the present case if the Plaintiff was asking that Lintock be substituted for him. That, however, is not the application. What the Plaintiff is asking is that Lintock be added as a 2nd Plaintiff. I am satisfied that such an application cannot be made under Rule 7. As far as the present matter is concerned I see no overlapping between Rule 6 and Rule 7. Rule 6 has no application and Rule 7 cannot be used to obtain the relief presently being sought.

9. Before ruling upon matter I feel that I should make reference to two of the arguments raised by Mr. Allman-Brown. He suggests that the reference to Showell v. Winkup under both Rule 6 and Rule 7 was a clear indication that the two rules overlapped in their application. It is true that Showell v. Winkup is cited under both rules but the facts of that matter clearly bring it under Rule 6. The Court treated the Plaintiff therein as though he were a trustee and gave leave to add the party who was to benefit from the trust as a Co-plaintiff. The decision is cited to show that where you have an assignment of an interest which creats a trust it is not appropriate, despite the fact that there has been an assignment, to substitute the assignee for the Plaintiff under Rule 7. The correct course is to add him as a 2nd Plaintiff under Rule 6.

10. Mr. Allman-Brown also sought to argue that because clause 17 of the Agreement for Sale and Purchase "authorizes and appoints (Lintock) in the Vendor's name to prosecute, proceed with, continue and pursue to judgment and conclusion" the pending action this indicates an intention on the part of the parties that the Plaintiff should remain a party to the action and that the Court, having regard to this intention, should allow the Plaintiff to remain as a party while joining the Lintock as 2nd Plaintiff. I cannot accede to this argument. Once the Plaintiff transferred his interest in the action he no longer had any action to pursue. The fact that the parties may have thought that the action could continue to be pursued in the Plaintiff's name is of no consequence. They were clearly wrong in taking this view and their taking it cannot be given any weight by the Court in the determination of this application. Indeed, Clause 17 may well have been placed in the Agreement for sale and purchase for a useful and proper purpose i.e. to allow Lintock should the Plaintiff have gone to Canada and remained there, as we are told it was likely he would, to approach the Court in the Plaintiff's name to obtain an order for substitution under Rule 7.

11. However that may be I am quite satisfied that the Plaintiff cannot succeed in his application to have Lintock joined as a 2nd Plaintiff and that this application must be dismissed.

12. Mr. Strawbridge, however, does not  oppose my making of an order substituting Lintock for the present Plaintiff subject of course to the question of costs. I order:

Representation:

Mr. Allman-Brown (John Ip & Co.) for Plaintiff.

Mr. Strawbridge (Crown Solicitor) for Defendant.