Wing Fai Construction Co Ltd (in Liquidation) v. Tammer Worth Development Ltd

HCA4484/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

ACTION NO. 4484 OF 2003

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BETWEEN

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Coram : Deputy High Court Judge L Chan in Chambers

Date of Hearing : 9 January 2006

Date of Delivery of Decision : 9 January 2006

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D E C I S I O N

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1.Master Kwan made an order for further and better particulars of the defence on 13 July 2004.  The particulars had, in fact, been filed and served on 12 July 2004 in the form of an Answer the day before the hearing though they had not reached the Master at the time of the hearing.

2.The plaintiff was not satisfied with some of the particulars in the Answer.  It then issued a summons on 27 July 2005, which was more than a year later, for an “unless” order that the defendant do provide sufficient further and better particulars pursuant to Master Kwan’s order of 13 July 2004. 

3.The defendant opposed the summons, saying that the obligation to furnish particulars pursuant to that order had been fully complied with because the order itself stated that it has been complied with.  The defendant requested for the summons to be dismissed.

4.Master S. Kwang, on 22 November 2005, ordered that the plaintiff could proceed with the summons but adjourned the substantive part of the summons to a later date part-heard.  The defendant appealed against this order. 

5.The terms of Master Kwan’s order are as follows:

“

(1)

Within 24 hours, the defendant do provide the further and better particulars as requested in the request annexed to the summons save for 2c(v), 2d(v), 4c(v), 4d(v), 5c(v), 5d(v), 6c(v) and 6d, and the Answer filed on the 12th day of July 2004 stand as the Defendant’s compliance with this order.”

6.The following events led to this order.  The defendant filed its defence on 19 January 2004.  The plaintiff sought further and better particulars of it on 9 March 2004.  The particulars were not supplied and the plaintiff issued a summons for them on 28 April 2004.  The summons was scheduled to be heard on 7 May 2004 but was adjourned to be argued on 13 July 2004.  On 12 July 2004 the defendant filed and served the Answer sought.  However, those particulars had not reached the Master at the hearing on the next day.  At the hearing, the solicitor for the plaintiff insisted on an order to be made for particulars to be provided by the defendant as per the summons of 28 April 2004, and did not accept the Answer served by the defendant on the previous day as proper particulars.  Mr Bennett, who appeared for the plaintiff before Master Kwan, said this:

“Master, if I can clarify.  What we would like today is an order for the giving of the 49 particulars.  To the extent that what’s been served already complies with that, then we will take that as given.  But obviously we’d require an order…”

7.Mr Bennett also reserved his position on whether the Answer supplied could amount to compliance with the order sought. 

8.Mr Ridgeon for the defendant said this to Master Kwan:

“	You haven’t reviewed the answer we’ve given and, in this respect, to give an order after the event of our having given the answers, cannot be a correct process before the court.  Let us suppose the answer had not been given yesterday and we were in a position in court today where Mr Bennett obtained his order.  On his desk, within 14 days or such other time as Master would have ordered, would be produced the very same document that is before you now.
	The next step, should Mr Bennett be so minded as to object or seek further and better particulars, or seek detailed answers, is for him quite simply to take out an additional summons to that effect.  Those are my submissions.”
He repeated his stance later:
“	I would reiterate that, at this moment in time, Mr Bennett has the answers before him.  The next step, if he has a problem with those answers, is to seek to issue a further summons for further and better particulars of the further and better particulars, or detailed further and better particulars such as will satisfy the requirements of the case.”

9.In the end the Master made the order as cited above with wording proffered by Mr Bennett as a matter of courtesy to the court. 

10.Mr Mok this morning submits for the defendant that the wording of the order is clear, that the order itself has been complied with and the plaintiff is not entitled to issue the summons on 27 July 2005.  He further submits that if the plaintiff should find the wording of Master Kwan’s order ambiguous and did not express the Master’s decision clearly, then the plaintiff should apply to the Master for clarification and amendment of the terms of the order.  However, if the plaintiff does not seek amendment of the order, then it is not entitled to issue the summons for an “unless” order. 

11.Mr Mok, however, accepts that if the defendant had not served the Answer on 12 July 2004 but had only done so after 13 July 2004, and the words about the Answer standing as to the defendant’s compliance with the order were not in the order itself, then the plaintiff would be entitled to proceed with its summons of 27 July 2005.  Whether the court would give the order upon this summons, and if so, whether it would be in the form of an “unless” order, are matters for the court.

12.Mr Mok refers me to the case of R v Cripps ex parte Muldoon & Ors [1984] 1 QB 686 at 694 to 696.  That was a local government election case.  The English Court of Appeal decided that if an order has been made in an unambiguous term and has been perfected, the judge making the order could not reconsider it as the judge would have become functus officio.  However, if an unambiguous decision has been expressed ambiguously, either in the reasons for judgment or in a formal order, then the ambiguity could be removed by the slip rule in Order 20 of the Rules of the High Court.  The ratio of that case does not really apply to the present case as that case was decided on the basis that the judgment was clear and it was unambiguously expressed.  However, the reasoning in the case is certainly helpful although it is not a distinctly important decision as it does not contain anything new.

13.It is the plaintiff’s primary position that the terms of Master Kwan’s order were unambiguous as it only stated that the Answer had been given within the time required by the order and it did not say that the Answer was a compliance on the merits.  I agree with him.  If the Answer had been adjudicated to have been a sufficient compliance on the merits, then I do not think the Master would have made the order requiring service of the particulars.  She would simply have allowed the plaintiff to withdraw the summons for particulars and give it costs on the summons.  To make an order for particulars when sufficient particulars have already been given does not tally with the court’s practice. 

14.The part of the order saying that the Answer stood as compliance was just to prevent the plaintiff from arguing later that the defendant had not provided any answer at all.  To say that this phrase in fact provided that the order has been complied with so that the plaintiff cannot complain about insufficiency of the particulars is reading too much into the order.  I do not think the court will say this in an order.  The sufficiency or otherwise of the particulars is only a matter to be adjudicated when it was raised.  In this case it was raised by the plaintiff’s second summons of 27 July 2005, but not in the first summons of 28 April 2004.  There was no such issue before Master Kwan on 13 July 2004. 

15.There are other points raised by Mr Bennett in opposing the appeal, but I do not think it necessary for me to deal with them.  I therefore dismiss the defendant’s appeal.  The summons of 27 July 2005 will resume before Master S. Kwang.

16.I also note that this case may well be within the jurisdiction of the District Court.  After the summons of 27 July 2005 has been concluded, consideration should be given on whether this case should be transferred to the District Court.

Mr R. Bennett of Messrs Tanner De Witt, for the Plaintiff

Mr Johnny Mok, instructed by Messrs Barlow Lyde & Gilbert, for the Defendant