THE KOWLOON MOTOR BUS CO (1933) LTD. and Another v. WONG KWOK LEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 1
(Civil)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Nazareth, V.-P.:

1. What is asked for in this interlocutory appeal is that:

"(1) the order of His Honour Judge Muttrie be set aside,

(2) the Court give a direction that s.35(3) of the Limitation Ordinance (Cap 347) shall not apply to the Defendant's counterclaim,

(3) the action be proceeded in the District Court with liberty to the Defendant to restore paragraph 1 of the Defendant's Summons dated 22 August in its amended form; and

(4) that the costs of the appeal and below be to the Appellants."

2. The judge's order was first that paragraph 1 of the Defendant's Summons as amended be adjourned sine die with liberty to restore and second that the action be transferred to the High Court under s.39(2) of the District Court Ordinance. With reference to the first paragraph of the order, the summons before him sought a direction under s.30 of the Limitation Ordinance (Cap 347) that the provisions of s.27 of the Ordinance shall not apply to the Defendant's Counterclaim and the Third Party Action.

3. Before the judge on the hearing of the summons, the view was expressed by counsel for the Defendant that he was entitled to maintain his action in pursuance of s.35(3) of the Ordinance. The judge then asked why it was necessary to apply under s.30. I pause here to say that counsel for the Appellants said that he was not prepared to meet an application under s.35.

4. The judge expressed the view that if the words "Defendant's Counterclaim" were deleted from the summons that difficulty would not arise, the Defendant's Counterclaim apparently not being time barred and so not requiring relief under s.30. What happened next was that, counsel on both sides agreed to the amendment which was then made by the judge on that basis and the words "Defendant's Counterclaim" were deleted. That disposed of that matter.

5. What then is left is the judge's reasons for his view. Looking at them, it is plain that he was simply expressing views. The point had been disposed of by the amendment and did not have to be decided. In my view, the judge did not decide the application or effect of s.35(3). Mr Yuen indicated that his concern was that those views might be construed as res judicata. Mr Tracy for the Defendant gave an undertaking that the Defendant would not make such a contention.

6. Upon that that basis what we are left with is the order transferring the action to the High Court under s.39(2). That clearly was the exercise of a discretionary power. It is plain on looking at the pleadings that having regard to the claim for damages to property, i.e. in relation to the car, and in addition to the personal injuries claim, that the total claim could easily exceed the District Court jurisdictional limit of $150,000. Upon that basis it is difficult to see how we could fault the judge's exercise of discretion to transfer the case to the High Court.

7. For myself, I see no reason why we should interfere with that order under which the action would go to the Court of First Instance and be resolved there.

8. I would dismiss the appeal on that basis.

Seagroatt, J.:

9. I agree.

Godfrey, J.A.:

10. I also agree.

Nazareth, V.-P.:

11. The appeal is accordingly dismissed.

12. [Having heard counsel]

13. The Defendant is to have his costs of the motion to dismiss the appeal including those of the abortive hearing before Leong JA. The costs of the appeal are to be costs in the cause of the action. The Defendant's own costs are to be taxed in accordance with the Legal Aid Regulations.