Pico International (HK) Ltd v. Palace Dreams Ltd

DCCJ507/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 507 OF 2007

----------------------

----------------------

Before:    H H Judge Mimmie Chan in Chambers (Open to the public)

Date of Hearing: 2 May 2008

Date of Decision:   2 May 2008

----------------------

D E C I S I O N

----------------------

1.This is an appeal against the Order of Master Lee made on 4 March 2008 when he dismissed the application of the Plaintiff made under Order 20 rule 11 of the Rules of the District Court to amend the order of Master C P Pang made on 10 October 2007 by deleting the reference to Order 49B and replacing it with Order 48, and further granted the application made by Mr Loo and Miss Yung to set aside the order of Master Pang on 10 October 2007 for the examination of Mr Loo and Miss Yung as directors of the Defendant Judgment Debtor.

2.Being an appeal, I deal with the matter as a rehearing of the applications which led to the Order of Master Lee under appeal.  Despite the persuasive arguments made on behalf of the Plaintiff, after reading the affirmations filed, I am not satisfied on the facts of this case that the Order of Master Pang can be amended under Order 20 rule 11.

3.It is clear that Order 20 rule 11 only applies in cases where there is a clerical mistake in an order or an error arising from an accidental slip or omission, or if there is some ambiguity in expression in an unambiguous decision.

4.Rule 11 is the exception or counterpart to rule 8(2) of Order 20, under which the court has no power to amend or to correct any defect or error in any judgment or order.  Apart from Order 20 rule 11, the court of course has the inherent jurisdiction and power to vary its own orders so as to carry out its own meaning and to make its meaning plain.

5.I do not accept, as counsel for the Plaintiff suggests, that it is the manifest intention of the court in this case to make an order under Order 48, and that the reference to Order 49B and the other mistakes such as references to Mr Loo and Miss Yung being examined as to “his or her assets, liabilities,” etc. are purely mechanical errors.

6.In paragraph 13 of the affirmation of Miss Kwan filed in support of the ex parte application, she specifically asked for an order under Order 49B rule 1 for an order that Mr Loo and Miss Yung be examined and to produce documents.  Although she referred in paragraph 12 to the examination of Mr Loo and Miss Yung as directors of the Judgment Debtor company on questions whether debts are owing to the company and whether the company is able to satisfy the judgment debt (using language used in Order 48), the order which was made by Master Pang on Miss Kwan’s application clearly and expressly referred to Order 49B.  I would note that whatever may have been the language used in paragraphs 12 and 13 of Miss Kwan’s affirmation, the draft order submitted by the Plaintiff’s solicitors to the court in relation to the ex parte application referred specifically again to Order 49B and to the language used in Order 49B, i.e. that Mr Loo and Miss Yung be examined as to his/her assets, liabilities, income, expenditure and the disposal of his/her assets or income.  The Master granted the Order so sought on its terms.

7.In all the circumstances, Master Pang obviously meant on 10 October to pronounce an order pursuant to the Plaintiff’s application, and on its terms as sought, and the Plaintiff’s application was clearly expressed in paragraph 13 of Miss Kwan’s affirmation and in the draft order submitted to be an application under Order 49B

8.Chu J recognised in the case of Poon Ting Chau v Wong Kwok Chi and others HCMP 5314/2002 & HCA 2903/2004, 20 October 2006 that it is within a Master’s discretion whether to make an order for examination and, if so, under which provision of the rules.  It seems clear to me that Master Pang intended and decided to make the order for examination under Order 49B in view of the draft order submitted.  I do not therefore regard the error in the order in its reference to Order 49B as an error in expressing the manifest intention of the court, or a mechanical error made by the registry or the office of the court, of the type referred to in the judgment in Man Ping Nam v Man Fong Hang [2007] 1 HKLRD 763.

9.In considering further the question of whether it was the Plaintiff’s slip or error to have referred to Order 49B when they had intended to refer and rely on the other order (Order 48), it is relevant how the Plaintiff’s solicitors themselves acted on the Order granted.  In this regard, I pay heed to the fact that the Plaintiff’s solicitors evidently treated the Order made on 10 October as one made under Order 49B, as they referred to application for a warrant of arrest in their letter to Mr Loo, and the power of arrest to secure the attendance of a judgment debtor for examination is only inherent in Order 49B, but not Order 48.

10.Since the slip rule does not apply to the Order in this case, the other matters referred to by the Plaintiff are not relevant.  For the same reason that the intention of the court is clear in granting the Plaintiff’s application expressed to be made under Order 49B, I am not satisfied that this is a case where the court should exercise its inherent power to correct its own order to make its obvious intention plain.

11.If there is indeed evidence of the Defendant company dissipating its assets to avoid payment under the judgment debt, or evidence of its directors assisting in such dissipation, the Plaintiff obviously has options and alternative remedies to prevent such dissipation.  It was open to the Plaintiff at any time after, and indeed before, judgment was entered on 25 August 2007 to apply for injunctive relief against the Defendant and to serve notice of such order on the directors.  As the Plaintiff accepts, it was also open to it at any time after 10 October 2007 to apply for the appropriate order under Order 48 for examination of its directors.  For reasons not quite clear to me, the Plaintiff chose instead to spend time and costs from October 2007 until now on these applications to the court.

12.Since counsel for the Plaintiff accepts that if the amendment is not allowed, the Order of 10 October ought to be set aside, I need not deal with that application.

13.As I do not allow the amendment sought under Order 20 Rule 11, the present appeal is dismissed with costs including certificate for counsel.

Miss Selina Lau, instructed by Ip Kwan & Co., for the Plaintiff

Mr Michael Chai, instructed by Messrs Alfred Lam, Keung & Ko, for the Defendant