XCHRX GETFIT CO. LTD. v. JOINEX INDUSTRIES LTD.

HCA 4781/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4781 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal from the order of Master Kwan made on 5 December 2001. It is common ground that the order she made orally in court was that the proceedings be stayed until the representation of the Defendant company had been resolved. She made no reference to any time limit for such stay. It is also common ground that the order was made by the Master on her own initiative and not on the application of any party.

2. That order has not been drawn up. O. 42 r. 5(5) Rules of the High Court provides that every order made has to be drawn up by the party initiating the application and if that party fails to draw up the order within 14 days any other party affected by the order may draw it up.

3. Since the order was not made on the application of any party neither party had an obligation to draw it up.

4. The Plaintiff if he wished to appeal against the order had however only 14 days after the order was made in order to appeal against the order (O. 58 r. 1(3)). The rules do not provide that the time for appealing runs from the time the order was drawn up.

5. One of the arguments before the court today is whether it was correct for the Plaintiff to appeal or whether it should rather have made representations to the Master before the order was drawn up that by implication the stay was limited and a term to that effect should be included in order when it was drawn up.

6. In view of the short time limited for appeal under the rule, I consider that the Plaintiff was entitled to take the Master's order at its face value in the way it was expressed in court, which was that it was a stay without time limit - rather than to seek to persuade the Master that terms should be implied into the order before it was drawn up.

7. In the circumstances of the case, I am satisfied that the Master was justified in staying the proceedings, so that advantage could not be taken of the Defendant's apparent disarray - but that that stay should be limited to the time necessary to put the Defendant's house in order.

8. I allow the appeal. I substitute an order that the action be stayed until 5:00 pm on 18 January 2002.