Yim Bo Ying v. Chung Iu Warm
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CACV000016/1983
BETWEEN
------- Coram: Sir Alan Huggins, V.-P., Leonard, V.P. & Barker, J.A. Date: 13th December 1983 ___________ JUDGMENT ___________ Sir Alan Huggins, V.-P.: 1. This is an appeal by the Defendant in an action in the District Court. The claim was for possession of the premises described in the Particulars of Claim on the ground that a licence had been terminated. The Defendant raised a counterclaim alleging that the Plaintiff held the premises as trustee for the Defendant. 2. The action came on for trial and the learned District Judge gave an oral judgment in favour of the Defendant both on the claim and on the counterclaim. He then adjourned in order to consider the terms of the order which should be drawn up and entered. While he was considering this matter, it suddenly appeared to him that he had proceeded with the counterclaim without jurisdiction. This was by reason of s.37(1)(b) of the District Court Ordinance. It is to be noted that he referred to the value of the estate or fund, the subject of the alleged trust, as being "in excess of $10,000". That figure in the statute had in fact been increased to $40,000 from $20,000 in 1981. He came back into court and said that he thought that he ought not to enter the judgment which he had pronounced and that the matter should be transferred to the High Court for a new trial under s.38 of the Ordinance. When he came to record his reasons for the decision at which he finally arrived, he came further to the conclusion that his order for transfer to the High Court was in error and he gave leave to appeal to this court against that order. 3. The position, as I understand it, is this. Section 39 of the District Court Ordinance deals with cases where the claim is beyond the jurisdiction of the court. In the present case there was no question of the claim's being beyond the jurisdiction of the court. Section 38 deals with cases where a counterclaim is on the face of it beyond the jurisdiction of the court. Sub-section (1) provides that the parties may, within such time as may be prescribed by the Rules of the Supreme Court, apply to the High Court or to a judge of that court for the transfer of the proceedings. (In passing, I observe that the Rules of the Supreme Court have never apparently prescribed any time.) The sub-section (2) provides that, where the parties have not applied for a transfer, the judge may at any time of his own motion report the facts and circumstances to the Registrar of the Supreme Court, who is then required to place the report before the High Court or a judge thereof. This also was not done in the present case. The learned judge did not refer to s.38(4), which is in these terms:
As I see it, in the present case there was no application and there was no report made under this section. The fact that the time was not prescribed appears, therefore, to be irrelevant. In those circumstances I think that the learned judge did have jurisdiction to hear the matter as in fact he did and that it was wrong for him therefore to set aside the judgment which he had made. I would therefore allow this appeal and restore the judgment which he pronounced. I would remit the case to him to enter that judgment, and the proceedings can continue from there. The judge will under the Ordinance be required to state his reasons. The Plaintiff, if so advised, will be able to take proceedings to set on foot an appeal against that decision. Leonard, V.-P.: 4. I agree. Barker, J.A. : 5. I also agree. 13th December 1983. |