LI CHING CHOI v. TACT STRONG INDUSTRIAL LTD

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J U D G M E N T

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Cons, V.-P.:

1. This is an appeal against the decision of Penlington J.A., sitting as an additional judge of the High Court by which he upheld an order of Master Jennings directing specific performance of an agreement dated 21st February 1987 for the sale and purchase of a flat in Heng Fa Chuen, then in the course of construction on behalf of the Mass Transit Railway Corporation.

2. The conduct of the parties in relation to the later execution of that agreement, and of subsequent litigation, exhibits some quite curious features. However, it is not necessary to recite them at the moment, because there is a technical point which, if decided one way, will dispose immediately of this appeal. At the commencement of the hearing, we therefore asked counsel to address us on that one point first.

3. The Statement of Claim, as it presently stands, contains two claims: 1. to Forfeit the deposit paid under the agreement for purchase and sale, and 2. for a declaration that the Vendor is no longer bound by the agreement. It is an action which comes squarely within the terms of Order 86; and is thereby excluded from the terms of Order 14 by reason of Order 14 rule 1(3).

4. The Defence to the Statement of Claim includes a Counterclaim for specific performance of the agreement.

5. On he 5th May this year, the Purchaser filed an application for summary judgment upon the Counterclaim. The marginal note referred to Order 86, which provides that -

"1.     (1) In any action begun by writ indorsed with a claim -

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the plaintiff may on the ground that the defendant has no defence to the action, apply to the Court for judgment."

6. The purchaser of course, is not a plaintiff. He is a defendant. The question then is whether in that circumstance he is entitled to summary judgment under the Order.

7. Mr. Eddis, who appears for the Purchaser, suggests that he ought to be treated as a plaintiff, that the procedure for bringing counterclaims, which was intrduced by the Judicature Act of 1873, was designed to equate a defendant with a plaintiff and to obviate, inter alia, the need to bring separate proceedings in order to obtain summary judgment, a course which the defendant could in any event have adopted in the present instance.

8. For may part I do not see that we are concerned with what the rule ought to be. That is a matter for the Rules Committee which may well, as a result of our decision, look into the situation. We are concerned to see what the rule is at the moment. To my mind it is quite clear that Order 86 does not give any right to a defendant to apply for summary judgment on a counterclaim. That follows from its  plain words.

9. My view is confirmed by reference to Order 14, where, because in England it originally did not include counterclaims, it was found necessary to introduce what is now rule 5. The terms of the English rules, both as to Orders 14 and 86, were adopted here in 1967 when the changeover was made from the Code of Civil Procedure to Rules of the Supreme Court.

10. My view is further reinforced by the footnote to be found in 37 Halsbury's Laws of England, 4th Edition para. 420 where the learned editor expresses his view that Order 86 is not available on a counterclaim.

11. For these reasons, and with every respect to the judge below, I think he incorrectly held that the procedure was available. I would therefore allow the appeal and set aside the judgment entered below.

Kempster, J.A.:

12. I agree with the order proposed and with the reasons given by my Lord.

Clough, J.A.:

13. I also agree.