M.K. Lam & Co (A Firm) v. Hong Kong Telephone Co Ltd
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CACV000156/1980
----------------- Coram: Huggins and Cons, JJ.A. and Penlington, J. Date of Judgment: 5 December 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This is an appeal against an order of Mr. Registrar Chism in Garnishee Proceedings. There are three relevant parts to the order. In the first it was ordered and declared that as between the garnishees and the judgment creditor the garnishees had established a lien in the sum of $30,000. Secondly, it was ordered that the garnishees pay into court the whole sum that they held, including the amount which was covered by the lien. Thirdly, it was ordered that the costs of the application be reserved. 2. The garnishees are a firm of solicitors who were formerly acting on behalf of the judgment debtor. They received various sums from or on behalf of the judgment debtor and they had instructions out of that money to pay various amounts which were debts due by the judgment debtor to third parties. They did in fact pay some small amounts out of the moneys that they received. They also conducted some proceedings on behalf of the judgment debtor for which they prepared a bill of costs in the sum of $35,000, out of which $5,000 was credited as paid. That left their claim to a lien on the balance of the moneys held in the client's account in the sum of $30,000. 3. The main dispute before the learned Registrar was whether or not the garnishees had a lien. He held that they had, as indicated by the first part of the order, and, in my judgment, although that has never been attacked on the appeal, he was clearly right. 4. The cause of the appeal is, of course, that the garnishees have been ordered to pay the whole sum into court and it is contended by Mr. Rogers on behalf of the garnishees that by that order the garnishees are in fact deprived of their possessory lien, because you cannot retain property, under such a lien, of which you have parted with possession. We are told that the proceedings before the Registrar were of a somewhat informal nature and that the matter of the payment into court was the result of an indication that the judgment debtor might be going to institute bankruptcy proceedings and, as we understand it, the anxiety of the Registrar was to ensure that the trustee in bankruptcy should not be in any way prejudiced as a result of the order that was being made. However, even bearing that possibility in mind, in my view he has inadvertently prejudiced the garnishees and it was not right that the garnishees should be deprived of the lien which they had. I would. therefore, make an order in the terms which are sought by the Notice of Appeal. 5. We are, however, asked to make a further order. This relates to the costs before the learned Registrar. It has apparently been agreed that, although the Commissioner of Inland Revenue is not represented before us and the judgment creditor is also not represented before us today, counsel who has appeared for the Appellants should seek an order that all the parties' costs of the application, including the appointment before Mr. Registrar Chism, should be taxed and be deductible from the moneys in court. For my part, I think that the Appellants are entitled to the costs but that the other parties should not, at this stage, receive their costs. I would order, accordingly, that the Appellants have their costs but that the order of the learned Registrar reserving the costs of the other parties should stand. Cons, J.A.: 6. I agree that the appeal should be allowed and that the orders asked for should be made and with the order as to costs proposed by my Lord. Penlington, J.: 7. I also agree. 5th December 1980. |