Behrens Ng Mo Chee Cindy Another v. Credit World Ltd.
Read the full judgment text of CACV 173/1999 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.
Cites 1 case
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CACV000173/1999 CACV 173/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 173 OF 1999 (ON APPEAL FROM HCA 4404 OF 1999)
------------------------------------------------------ Coram: Hon. Mayo, and Keith, JJ.A. in Court Date of hearing: 12 October 1999 Date of delivery of judgment: 12 October 1999 ---------------------- J U D G M E N T ---------------------- Mayo, J.A.: 1. This is an interlocutory appeal against an order made by Deputy Judge Z. E. Li. 2. He was hearing an application for the Plaintiffs' statement of claim to be struck out pursuant to Order 18 rule 19 of the Rules of the High Court, Cap. 4. Order 15 rule 5(1) was alternatively being invoked as it is the Defendant's contention that the Plaintiffs' respective causes of action should be prosecuted separately. 3. Put very simply the claim being made by the eighteen Plaintiffs who are respectively the owners of eleven ground floor flats in one of the Defendant's developments is that gardens adjoining their flats should be exclusive to their flats. They all claimed that representations to this effect were made when they purchased their flats and that when the Assignments and Deeds of Mutual Covenant were prepared the gardens were included in the common areas of the development as a whole. 4. Instead of making a determination of the issues raised by the Defendant's summons the Judge contrary to the wishes of all parties to the litigation made an order that there should be a trial of four preliminary issues which were framed by him. These issues were:
5. One matter upon which counsel on both sides are unanimous is that they do not wish to follow the path ordered by the Judge. They both give different reasons. It does not seem to me to be a profitable exercise to weigh and consider the submissions which have been advanced if it is universally accepted that there should not be a trial of preliminary issues as ordered by the Judge. 6. While it is commendable that Judges should take an initiative in case management there clearly has to be a limit to which this can obtain. 7. Perhaps the most compelling factor to be weighed in the present case is that the issues in the litigation have not yet been framed as no defence has yet been filed. Clearly the framing of preliminary issues must be premature. It has to also be said that there would appear to be no assurance whatever that the main issues between the parties would be resolved by the preliminary issues which are framed by the Judge. 8. What is required at the present time is that there must be an adjudication on the issues raised in the summons which was before the Judge. 9. The question which then arises is whether we should as prayed for in the Notice of Appeal remit the summons back to a Judge of the Court of First Instance or as is prayed for in the Respondent's Notice ourselves adjudicate upon the issues. 10. We heard helpful submissions from both Mr. Wong for the Defendant and Mr. Yau for the Plaintiffs. 11. Mr. Wong referred us to the cases of Mohamed Yaqub Khan v. AG [1987] HKLR 250 and Ch'ng Poh v. Cheng Yeung & Co. [1998] 3 HKC 643 where similar questions had arisen for consideration. In particular we were referred to two passages in Mohamed Yaqub Khan from the judgment of Cons, V.-P. at p.252:
and then he went on to say:
12. This approach to the matter was also followed by Nazareth, V.-P., at p.649 of Ch'ng Poh v. Cheng Yeung & Co.:
13. The main point raised by Mr. Yau in response to this was that delay will occur if we decline to resolve the matter. In my view the Defendant is entitled to have its applications dealt with in the usual manner including a built in right to appeal if the order which is eventually made is contrary to its wishes. I consider that the summons should be remitted to a Judge of the Court of First Instance for hearing. It should be listed before some Judge other than Deputy Judge Li. We will hear the parties on costs. Keith, J.A.: 14. I agree that this appeal should be allowed, and that the judge's order, presumably made under Ord. 33 r. 3, that various "preliminary issues be framed for hearing" be set aside. I preface my remarks by complimenting the judge for wishing to find the most cost-efficient way for the differences between the parties to be resolved. However, in my view, the judge's order was an inappropriate one for three reasons apart from its prematurity. 15. First, the issues framed by the judge focus on whether the Defendant's acts relied upon by the Plaintiffs in the Amended Statement of Claim did indeed amount to the representations alleged. However, if those acts are disputed by the Defendant, they will have to be proved. The judge thought that the preliminary issues could be determined on the assumption that the acts relied on would be proved. However, since the nature of the representations alleged, particularly the oral representations, depend so much on what facts are in fact proved, it was in my opinion inappropriate for the judge to order the determination of preliminary issues on what would necessarily have been hypothetical facts. 16. Secondly, the issues framed by the judge also focus on "the remedy or relief" which the representations warranted. In his judgment, the judge said that this was intended to elicit a finding as to whether the Plaintiffs should be entitled to rescission of the sale and purchase agreements and the assignments, or whether they should be left with their claim for damages. The difficulty with that approach is that the nature of the Plaintiffs' remedy is dependent not merely on the nature of the representations, but also on facts which are relevant to the individual Plaintiffs - for example, the degree of importance which they attach to the podium gardens, and the extent to which they might have lost the right to rescind by affirming the agreements or making restitution impossible or creating rights in third parties. 17. Thirdly, the judge's order was only capable of achieving the purpose which it was intended to achieve if it rendered a subsequent trial of the action either unnecessary or less complex. The only way it would have done that is if, on the facts pleaded by the Plaintiffs, the representations relied on could not have amounted to actionable representations in law. That is not alleged by the Defendant. Otherwise, the Defendant would have sought to have the Amended Statement of Claim struck out as disclosing no reasonable cause of action. 18. In view of the course which the judge took, he did not consider what orders should be made on the issues raised in the Defendant's summons. I can see the force of the argument of Mr. Albert Yau for the Plaintiffs that we should decide these issues here and now. True, the parties would be denied one tier of appeal if we decided the issues ourselves, but the other side of the coin is that the parties get the benefit of the issues being addressed for the first time by a court of greater authority. This court has all the material on which to decide these issues, and remitting the summons to be heard in the Court of First Instance would involve a delay for a month or so and additional costs. However, the fact remains that this was a case in which the issues raised by the summons have not been considered at all at first instance, and I do not feel so strongly on the issue that I should dissent from the clear view expressed by Mayo, J.A. I therefore agree with him that the summons should be remitted to the Court of First Instance, to be heard by a judge other than Deputy Judge Li, on a date to be fixed. Mayo, J.A.: 19. No order for costs on the appeal. Also no order for costs for the hearing below save for the costs of preparing for the summons. These costs will be costs in the cause of the summons.
Representation: Mr. Albert Yau Kai-cheong instructed by M/S Benny Kong & Co. for Plaintiffs Mr. Wong Yan-lung instructed by M/S Woo, Kwan, Lee & Lo for Defendant |
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