GREAT PERPRECT INVESTMENT LTD v. LEUNG YAT WAH AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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DECISION

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1. On the 5th June, notices of motion issued by the plaintiff to strike out the defendants'defence and counterclaim in these actions came before me.

2. I was surprised that the applications had been made by motion and not by summons before a master so I enquired from Mr Fung, counsel for the plaintiff, why this course had been adopted. Mr Fung responded by citing a passage in the Whitebook under the commentary at 18/19/2 which provides that an application to strike out in the Chancery Division is made by summons or by motion. I pointed out to Mr Fung that there are no divisions of the High Court in Hong Kong so that his citation was inapplicable. Nevertheless he persisted in his applications on the grounds that as they were now before the court they should proceed.

3. An application to strike out a pleading is normally heard by way of summons before a master under the powers conferred by Order. 32, rule 11 of the Rules of the Supreme Court which provides : -

4. However, it was apparent that the plaintiff, by filing a notice of motion was seeking to bypass the master, for by so doing he is not only likely to obtain an earlier hearing date than before a master but he would also be able to avoid an appeal from a master to a judge. Under these circumstances, the plaintiff will necessarily gain an unfair advantage over other litigants whilst if such a practice is to be given general approval, jurisdiction that has been properly accorded to a master under 0.32 could once again become the exclusive prerogative of the judge.

5. Further if a master considers that a matter should be heard by a judge, he can make a referral under 0.32, r.12 which provides : -

"12. The Registrar and any master may refer to a judge any matter which he thinks should properly be decided by a judge, and the judge may either dispose of the matter or refer it back to the Registrar or to any master, with such directions as he thinks fit."

6. The appropriate procedure in this case, therefore, was for the plaintiff to issue a summons before a master. The tactic of issuing a motion, which can of course only be heard in open court, precludes jurisdiction be exercised by a master.

7. Having indicated my views to the parties, Mr Chang, counsel for the defendants, sought dismissal of the motions which I granted with costs.