XCHRX JONES LANG WOOTTON LIMITED v. THE SUN PLASTIC SUPPLIES LIMITED

1993 No. A10878

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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H E A D N O T E

Construction and Arbitration List - Practice Direction - whether court has power to transfer an action pending elsewhere in the High Court to the Construction and Arbitration List - whether consent of the parties is required - conflict between Practice Direction and Order 72 rule 5 of the Rules of the Supreme Court

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JUDGMENT

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1. I had before me on 28th March 1994 a seemingly simple application brought by the Plaintiff to transfer this action to the Construction and Arbitration List. This application was opposed but granted nonetheless. I said I would reduce my reasons into writing in order to point out to practitioners that the Practice Direction for the Construction and Arbitration

List which appears at 8.4 of the Practice Directions contains an error which is in conflict with the Rules of the Supreme Court.

2. The writ was issued in the ordinary list on 10th November 1993. It claimed professional fees by the Plaintiff surveyors of just under $500,000.00.

3. On 8th January 1994, the Defendant filed a defence. The agreement sued upon was denied, but there was an alternative plea to the effect that the drawings prepared by the Plaintiff were unsatisfactory in three pleaded respects.

4. On 21st March 1994, the Plaintiff's solicitors, appreciating that this was no longer a simple debt collecting matter, issued a summons returnable before me on the 28th March 1994 for an order under Order 72 rule 5 that this action be transferred to the Construction and Arbitration List.

5. The Defendant filed an affirmation in opposition which stated, inter alia :

"Although the dispute between the Plaintiff and the Defendant touches upon some sort of construction matters, the issue herein is a simple one, namely whether the Defendant retained the Plaintiff to render consultancy service in respect of the renovation work of the premises for which the Defendant had to pay. Facts are not complicated and the present case just like the other ordinary civil cases could be dealt with in the usual way. The simple fact in issue herein do not justify the transfer of the matter to the Construction and Arbitration List." (sic)

6. Miss Ng of Joseph C.T. Lee & Co. appeared for the Defendant to oppose this application. All she could say was that the case was simple, but she gave no indication as to why she submitted that this action was not one within the category of cases assigned to the Construction and Arbitration List by the Practice Direction which states materially as follows ;

"2. The classes of action within the Construction and Arbitration List shall include those concerning the following matters, namely :-

(a) Civil or mechanical engineering;

(b) Building or other construction work;

(c) Claims by and against engineers, architects, surveyors and other professional persons or bodies specialising in practice related to the construction industry;

(d) Applications under the Arbitration Ordinance, Cap. 341 and Order 73, Rules of the Supreme Court."

7. I have not the slightest doubt that this action comes within the class of cases assigned to the Construction and Arbitration List and no submission to the contrary was made. It may well be that a case within that category of cases may be a simple case, but it is nevertheless within that category and amenable to transfer.

8. During the course of the argument before me, I raised with both solicitors what appeared to me to be a conflict between the Practice Direction on the one hand and Order 72 rule 5 of the Rules of the Supreme Court on the other dealing with transfer from what I might call the ordinary list to the Construction and Arbitration List.

9. The relevant part of the Practice Direction reads as follows :-

"4. (2) The Judge may, of his own motion, or on the application of any party to the action, order -

(a) that an action in the Constriction and Arbitration List be removed therefrom; or, with the consent of the parties.

(b) that an action pending elsewhere in the High Court (other than in another specialist List) be placed in the Construction and Arbitration List." [emphasis added]

10. Thus, para. 4(2) provides that it is only with the consent of the parties that an action pending elsewhere in the High Court can be placed in the Construction and Arbitration List. On the face of it, this seems a somewhat strange restriction because, if an action is obviously within the class of categories defined for the Construction and Arbitration List, it should be in that List and one party should not be able to exercise a power of veto.

11. It is necessary to have regard to the terms of Order 72 rule 5 of the Hong Kong Rules of the Supreme Court. It provides as follows :

"5. (1) At any stage of the proceedings in any action any party thereto may apply by summons to the judge to transfer the action to a particular list."

(3) If, at any stage of the proceedings in any action, it appears to the Court that the action may be one suitable for trial in a particular list and any party wishes the action to be transferred to that list, then the Court may adjourn any hearing so that it can proceed before the judge and be treated by him as a summons to transfer the action to that list."

12. Order 72 rule 5, which is the rule under which this summons to transfer has been taken out, clearly provides power to the Court to transfer an action from the ordinary list into a specialist list provided that an application is made by a party to an action. In this case, a summons was taken out returnable before the Judge in charge of the Construction and Arbitration List, and therefore I had power under the rules to make the order which I did.

13. In my judgment, it is also clear that the Rules of the Supreme Court must prevail over the terms of the Practice Direction where there is a conflict between the two. In those circumstances, I was satisfied that I had power to make the order which I did. It would also be extremely helpful if the Practice Direction were amended so as to bring it in line with the terms of Order 72 rule 5 of the Rules of the Supreme Court. I have no doubt that this matter will be given urgent attention for the avoidance of doubt and confusion.

14. The opposition to this summons was quite ridiculous and no sensible point was made in support of such opposition. Miss Ng made no submission based on the terms of the Practice Direction so she did not come along and find herself misled by it. The terms of Order 72 rule 5 are crystal clear and clearly prevail over the Practice Direction. Her statement to me that she had advised her client that there were no grounds for opposition, but nonetheless appeared without grounds because her client insisted, seemed to me to amount to an abuse of the process of the Court and justified the order for indemnity costs which I made.