Chan Kung Kee v. Wen Xiaoling

HCA 1635/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1635 OF 2010

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D E C I S I O N

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1.On 27 February 2015, I gave judgment on the claim in the sum of $3 million with interest at judgment rate from the date of judgment to the date of payment. I dismissed also the counterclaim.

2.The plaintiff now seeks interest on the sum from the date of writ, ie 3 November 2010, until 26 February, the date before judgment, pursuant to section 48 of the High Court Ordinance and the slip rule under Order 20, rule 11.

3.This court has power to amend its order under the slip rule even after judgment.  This power arises where the omission to grant interest arose by a slip on the part of counsel or a party to the action: Man Ping Nam v Man Fong Hang (No 2) (2007) 10 HKCFAR 140.  However, the error or omission must be an error in expressing the manifest intention of the court.  A party cannot use the slip rule to insert into the original order a provision which was not there, not because of any slip in expressing the court’s intention but because it was not originally asked for: Bank of China v Jian Sing Bank Limited, HCCL 82/1999, 14 April 2000, Stone J. 

4.Even though the requirements of the slip rule are satisfied and the court is not precluded from making an order under it by any res judicata in the narrow or extended sense, there is nevertheless a discretion in the court to refuse an order under the slip rule if something has intervened which would render it inexpedient or inequitable to do so: Tak Ming Company v Yee Sang Metal Supplies Company [1973] 1 WLR 300 at paragraph 306F to G.

5.Considering the above legal principles, the question to ask is what would I have done had the matter of interest been brought to my mind.  I would no doubt have awarded interest from the date of writ.  It was clear that, prior to the writ, the plaintiff had demanded for return of the sum on two occasions but to no avail.  The institution of the action was justified.  I have rejected the defence and held against the defendant on almost all issues.  I see no reason why the plaintiff should not get interest from the date of writ as opposed to getting it from the date of judgment to represent his loss of being kept out of the money which should have been paid to him: Lam Rogerio Sou Fung v Tan Soon Gin George, CACV 85/2011, 17 January 2012, at paragraph 19.

6.Pre-judgment interest was claimed for in paragraph 17 and item (3) of the prayer for relief of the amended statement of claim.  It was not reiterated by counsel at the trial.  That was understandable because the court’s attention then was directed towards the question of liability and quantum.  However, the plaintiff has not delayed in taking out the present summons.  Nothing has intervened to render it inexpedient or inequitable for the court to award interest and Mr Poon, counsel for the defendant, has been unable to point to any prejudice to the defendant.

7.I consider it appropriate to order interest to run from the date of writ to the date before judgment at 5% per annum, which was the prime rate, and thereafter from the date of judgment at judgment rate until the date of payment.  The order shall be so amended accordingly.

8.In view of this decision, it is not necessary to deal with the application to extend the time for lodging an appeal by the plaintiff.

Mr Kestrel Lam, instructed by C.O. Chan & Co., for the plaintiff in the original action and the defendants in the counterclaim

Mr Billy Poon, instructed by Augustine C Y Tong & Co, for the defendant in the original action and the plaintiff in the counterclaim