Gte Directories (HK) Ltd v. Ng Ping Lun and Others
Read the full judgment text of DCCJ 8216/1986 on BabelCite. This District Court judgment.
3. I asked Mr. Kelly, who appeared for the plaintiff, why this application was not made to the Registrar pursuant to Rule 22 of the District Court Civil Procedure (General) Rules. He told me that applications of this nature had in the past been refused by the Registrar. I do not regard that as an acceptable answer. The rules provide for such application to be made to the Registrar. If the application is made to the Registrar and he declines to enter judgment, the plaintiff must take it from ther
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District Court - Application to enter judgment should be made to registrar and not directly to the judge. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 8216 OF 1986 _____________ BETWEEN
_______________ Coram: His Honour Judge D'Almada Remedios in Chambers. Date: 13th day of August, 1986. REASONS FOR DECISION 1. In this Action the plaintiff claims a liquidated sum with interest and a contractual claim for costs on a solicitors and own client basis.2. I am now met with an application for leave to enter judgment in default of defence. The 3rd defendant appeared and stated that he does not admit the amount claimed and that he is opposing this application. 3. I asked Mr. Kelly, who appeared for the plaintiff, why this application was not made to the Registrar pursuant to Rule 22 of the District Court Civil Procedure (General) Rules. He told me that applications of this nature had in the past been refused by the Registrar. I do not regard that as an acceptable answer. The rules provide for such application to be made to the Registrar. If the application is made to the Registrar and he declines to enter judgment, the plaintiff must take it from there. If an attempt is made (as in this case) to side step the procedure laid down - a step which I would regard as being irregular - then even if such an application can be entertained by a judge, the application may well be refused if the judge is not disposed to encourage non-compliance with the rules. 4. If the plaintiff's claim is for an unliquidated demand and no defence is filed the application should also be made to the Registrar: Rule 22(6). 5. I enquired of Mr. Kelly whether the application for judgment is on a mixed claim. He indicated to me that it is his case that the plaintiff's claim is a mixed claim. I am inclined to agree with him. The claim is for a liquidated sum for advertisement charges coupled with a claim under a contract for costs on a solicitor and own client basis which claim is for an amount left to be determined or assessed. In my view, one must distinguish a claim for costs, on whatever basis, where the judge has a discretion whether to award it or not. Such a claim for costs has never been treated as an unliquidated demand. However, a contractual claim for costs is, in essence, a claim for an unliquidated sum under a contract which, in the case before me, one party is to pay to the other on breach. In substance, it is a claim in the nature of damages, or for an unquantified sum of money to be paid, pursuant to a contract relied upon by the plaintiff. The character of such a claim does not change simply because it is described as "costs". I therefore regard the claim before me as a mixed claim. If Mr. Kelly is right that the plaintiff's claim if a mixed claim it has been held that I have no jurisdiction to enter a default judgment: United Merchants Finance Ltd. v. Ngai Chor Yin (Civil Appeal Nos. 127 and 174 of 1984) . 6. In short, therefore, if the claim is not a mixed claim the application should have been made to the Registrar under Rule 22. If it is mixed claim I have no jurisdiction to entertain a default judgment. For these reasons, I dismiss the plaintiff's application with costs for the defendant.
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