Read the full judgment text of CACV 000173/1999 on BabelCite. This Court of Appeal judgment was delivered on 12 October 1999 before Mayo JA, Keith JA.
Civil procedure – interlocutory appeal – striking out statement of claim – preliminary issues – Order 18 rule 19, Rules of the High Court, Cap. 4 – Order 15 rule 5(1) – Order 33 rule 3 – remittal of summons – exercise of discretion – eighteen plaintiffs are owners of eleven ground floor flats in one of the defendant's developments – claim that gardens adjoining their flats should be exclusive to their flats – alleged representations made at the time of purchase including newspaper advertisements, display of a model at the sales office, and oral representations regarding exclusive use of gardens annexed to podium flats – representations also alleged that gardens would be included in the building plan for the flat but not in the title deed – when Assignments and Deeds of Mutual Covenant were prepared, the gardens were included in the common areas of the development as a whole – defendant applied by summons to strike out plaintiffs' statement of claim under Order 18 rule 19 or alternatively under Order 15 rule 5(1) to have the causes of action prosecuted separately – Deputy Judge Z. E. Li, contrary to the wishes of all parties, made an order that there should be a trial of four preliminary issues framed by him – whether judge's order for preliminary issues was appropriate – held no, the order was set aside for three reasons – first, it was premature because no defence had yet been filed and the issues had not been framed – second, the issues would necessarily have been determined on hypothetical facts as the nature of the representations depended on what facts were proved – third, the order would not have achieved its intended purpose of rendering a subsequent trial unnecessary because the defendant did not allege that the pleaded representations could not amount to actionable representations in law – whether the Court of Appeal should decide the issues itself or remit to Court of First Instance – held the matter should be remitted to a judge other than Deputy Judge Li – following Mohamed Yaqub Khan v. AG [1987] HKLR 250 and Ch'ng Poh v. Cheng Yeung & Co. [1998] 3 HKC 643, where the court below has not exercised its discretion at all, it is appropriate to remit so that the judge may make his own decision and give his reasons – defendant entitled to have its applications dealt with in the usual manner including a built-in right of appeal – appeal allowed – summons remitted to Court of First Instance to be heard by a different judge on a date to be fixed – no order as to costs of the appeal – no order as to costs for the hearing below save for the costs of preparing for the summons, which are to be costs in the cause of the summons.
Legal issues: Propriety of judge below's order for trial of preliminary issues · Remittal of summons to Court of First Instance or adjudication by Court of Appeal
Outcome: Appeal allowed; the deputy judge's order for trial of four preliminary issues set aside; the defendant's summons remitted to the Court of First Instance to be heard by a judge other than Deputy Judge Li on a date to be fixed.