Bruce James Stinson v. Gu Ming Gao

HCA 2352/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2352 OF 2012
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D E C I S I O N

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1.This the Defendant’s application to vary or correct my order made on 2 April 2014. This application is made under Order 20, rule 11 of the Rules of the High Court. The rule provides that:

“Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without an appeal.

2.The Plaintiff filed his written submissions in opposition last week and submitted that I have no jurisdiction under this rule to entertain the application because the application is a wholesale replacement of the inspection mechanism provided in the Master’s order which I upheld in my decision of 2 April.

3.The Defendant filed his written submissions yesterday and maintained that the application is a meritorious one.

4.This morning Ms Tam, SC for the first time referred to Order 24, rule 17 and submitted that I have jurisdiction to accede to the application by varying my order of 2 April with a new one which she submitted this morning.  Order 24, rule 17 provides:

“Any order made under this Order (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in connection with which the original order was made.”

5.Ms Tam also submitted that this rule is within the scope of my inherent jurisdiction and she also referred to Order 1A of the Rules of the High Court on the parties’ duties to cooperate with one another. However, I would also refer to Order 1A, rule 2(b) which provides that:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

6.I have already set out the background to the action in my decision given on 2 April and I am not going to repeat it here. The Plaintiff applied under Order 24, rule 10 of the Rules of the High Court for discovery of the mathematical model that the Defendant has pleaded in paragraph 8 of the Defence and Counterclaim.  The Plaintiff also applied under Order 24, rule 7 for discovery of the Defendant’s betting records. 

7.Master de Souza ordered in terms of the application.  The Defendant then appealed.  I dismissed the appeal on 2 April. I varied the Master’s order to include all versions of the model.  I also limited the discovery of betting records up to the date when the Defendant delivers up the model in terms of my order.

8.The order suggested by Ms Tam this morning is a wholesale replacement of my order as it imposes stringent conditions on the custody of and access to the copies of the model to be kept by the solicitors for the parties.  I cannot accede to this draft order because it is outside the scope of Order 20 rule 11.  Nor can I accede to the application under Order 24 rule 17, because if the Defendant was minded to rely on this rule, it should have made it plain to the Plaintiff.  The application on the basis of this rule should have been a fresh one.  I also do not accept the submission that my inherent jurisdiction would include the force and effect of this rule.

9.On these grounds, I dismiss the application, but without prejudice to the Defendant making a fresh application by relying on Order 24, rule 17.

10.Costs be to the Plaintiff.

Mr Dominic Pun, instructed by Lily Fenn & Partners, for the plaintiff

Ms Winnie Tam, SC, and Mr Jason Yu, instructed by Baker & McKenzie, for the defendant