Huang Ping, Owen v. Burswood Ltd and Another

DCCJ5239/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5239 OF 2008

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

Date of Hearing: 9 September 2009

Date of Decision:   9 September 2009

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D E C I S I O N

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1.This is the plaintiff’s appeal against the decision of Master Lai made on the 5th and 19 August 2009, the order being that the plaintiff’s interlocutory application for entering judgment against the 1st defendant be adjourned sine die.

2.On 19 August 2009, Master Lai ordered that the hearing relating to the two plaintiff’s summonses application dated 7 July 2009 and 24 July 2009 and the defendants’ summons application dated 10 July 2009 be adjourned sine die, pending the result of the hearing of the summons of the defendants’ summonses application dated 21 January 2009 and 3 March 2009.  The present application was heard before me on 2 September this year and adjourned to today.  Before this court resumed its hearing today, Deputy Judge Tsui handed down his decision on the summonses dealt with by him. 

3.On 27 March, 9th, 14th, 16th April 2009, the plaintiff just now submitted that Deputy Judge Tsui had no power to deal with the hearing before me.  That cannot be true.  He dealt with the decisions on the summonses before him, as on the dates I just mentioned.  That is quite clear from the decision he handed down; he did not deal with whether the orders made by Master Lai on 19 August are correct or not insofar as the adjournment is concerned. 

4.On 21 January hearing, by the summons dated 21 January this year, the defendant sought the following orders:-

1)   An order declaring that the writ of summons of the present action has not been duly served on the defendants.  Alternatively, that service of the writ of summons and all subsequent proceedings be set aside.

2)   An order declaring that the court has no jurisdiction over the defendants in respect of the subject matter of the claim or the relief or remedy in the present action.

3)   This action be dismissed.

This summons was taken out pursuant to Order 12 rule 8 of the Rules of the District Court.

5.The summons taken out by the plaintiff for judgment against the defendants were made pursuant to Order 13 of the Rules of the District Court.  The plaintiff argued that the hearing of the Order 13 application should be made first.  That hearing was not preconditioned by any other application; so he was prejudiced because the Master adjourned this case waiting for the determination of the summons by Deputy Judge Tsui. 

6.I do not know exactly the reasons for the adjournment of the summonses referred to in the order of Master Lai.  It is management decision.  I do not accept that the rights of the plaintiff under Order 12 were deprived for the reasons referred to by the plaintiff in his submissions.  The decision made by Master cannot be faulted.  It is simple and clear that even if the plaintiff’s application under Order 13 is heard first and judgment be entered, still it is liable to be set aside if it turns out that the relevant writ of summons were not validly served or were not served on the defendants.  So if the plaintiff’s Order 13 summons was heard first and judgment entered and it subsequently turned out that the writs of the summons were not served on the defendants, then the judgment would be liable to be set aside.  So, it would have taken time and it would have required the parties to spend unnecessary expenses on hearing the summons if the result would be changed subsequently.  It is clear that if the summons pursuant to Order 13 was adjourned and if it turned out that there would be evidence in favour of the plaintiff insofar as the service of the writ of summons was concerned, then still  he is entitled to enter judgment against the defendants.  I cannot see how he would be prejudiced.

7.It turns out that Deputy Judge Tsui made the decision to the effect that the writ of summons has not been duly served on the 1st and 2nd defendants.  Now, if Master Lai did not adjourn the hearing of the Order 13 summons application and if judgment was entered in favour of the plaintiff, no doubt the matter does not end there.  If the defendant pursued to take steps to set aside the judgment, then I cannot see any reason they cannot succeed, and so the hearing of the Order 13 summons is purely a waste of time.  I cannot see why the plaintiff cannot wait until the judgment of Deputy Judge Tsui is handed down so that everything is clear and then he should consider whether to proceed with the Order 13 summons. 

8.The decision to adjourn the hearing of the summonses is clearly correct.  There is no merit whatsoever in the plaintiff’s application to appeal against the Master’s decision.  I therefore dismiss this application to appeal against that decision.

(Submissions on costs)

9.Costs of this application be paid by the plaintiff to the defendants, to be taxed, if not agreed.

Representation:

Plaintiff, in person, present

Mr Michael Darowshi, instructed by Messrs Lovells, for both Defendants