Chui Chi Tang v. Edico Development Ltd

DCCJ3239/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3239 OF 2005

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BETWEEN

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Coram : H H Judge H C Wong in Chambers (Open to public)

Date of Hearing : 29 March 2006

Date of Delivery of Decision : 29 March 2006

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D E C I S I O N

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1.The applicant applies for a review of my decision to dismiss the 1st defendant’s summons to strike out the statement of claim of 9 September 2005.  The hearing took place on 22 December 2005.

2.At today’s hearing, Miss Mak, representing the 1st defendant, submitted that this court has an inherent jurisdiction to review itself after hearing full arguments by both sides in the application to strike out on 22 December 2005.  She relies on Order 42 rule 1 and Practice Note 42/1/3.  She supported her submission referring to the case of The Queen v Bloomsbury Marylebone County Court ex parte Villerwest Ltd [1976] 1 All ER 97.  Mr Law, counsel for the plaintiff, submitted that this court has no such jurisdiction and that in his research no supporting authorities to review a civil decision in Hong Kong could be found.  

3.The Practice Notes in 42/1/3 states the following:

“A judgment takes effect from the time when the judge pronounces it rather than the date upon which it was drawn up and entered.  But it is within the powers of a judge to alter his judgment at any time before it is entered and perfected.”

4.What the Practice Notes refer to is in cases generally where there may be clerical or typing errors or mathematical calculation errors, or slips of some kind that an alteration is deemed necessary before the judgment or order is perfected or sealed.  It is not meant for cases where there has been a full hearing in the presence of both parties where, as in this case, the 1st defendant made vigorous representations on facts and in law, after which a decision was delivered.

5.It is not for a case such as this one that, the 1st defendant, after his summons was dismissed, should ask for a second bite of the cherry to re-argue the application before the same judge. The English Court of Appeal decision relied on by Miss Mak, The Queen v Bloomsbury & Marylebone County Court ex parte Villerwest Ltd.  was a decision on the issue of whether the county court in England has jurisdiction to enlarge time for the party to comply with an order of the county court made in the party’s absence.   It is not a relevant authority on the issue if the court has the jurisdiction to review its own decision.  That decision was only a decision to enlarge the time for compliance of an order made in the absence of the complying party.

6.If an order was made by this court in the absence of the 1st defendant, the District Court Rules provide that the absent party can subsequently apply to set aside the order or judgment entered in default.  There is also jurisdiction in the Rule of the District Court to allow enlargement of time under Order 3 rule 5.

7.At today’s hearing neither Miss Mak nor Mr Law were able to produce an authority in the Hong Kong High Court or the District Court that there is jurisdiction for a Hong Kong civil court to review its own decision and allow a de novo hearing of the same summons that was heard three months before.  The 1st defendant should be advised to appeal should it be unhappy with my decision on 22 December 2005 rather than waste the court’s time and the client’s money on an application such as this one which is doomed to fail for the lack of jurisdiction.  The 1st defendant’s application is therefore dismissed with costs against the 1st defendant with certificate for counsel.

Mr Dennis Law, instructed by Messrs D S Cheung & Co., for the Plaintiff

Ms Claire Mak of Messrs Wong, Hui & Co., for the Defendant