KOU MEI JUAN t/a MEI FOOK JADE & JEWELLERY CO v. THE INCORPORATED OWNERS OF PAK CHEUNG BUILDING (BLOCKS C & D) TUNG CHOI STREET AND ANOTEHR

BETWEEN:-

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JUDGMENT

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1. This is an appeal by the plaintiff from a decision of Master Crawshaw given on the 8th January 1985 when he struck out the statement of claim.

2. By the statement of claim the plaintiff avers that on the 1st December 1982 the 1st defendant let to her premises known as the exterior side door space of the ground floor of 30 Tung Choi Street with the right to the use of a structure affixed to the side wall for business purposes for a term of 16 years from the 1st December 1982 at a rent of $800 inclusive of rates. She alleged that there was an implied term of quiet enjoyment. The claim made in this action is one for damages for loss of profit at the rate of $5,000 per month for 14 years for breach of the implied term of quiet enjoyment.

3. However, the pleading in this action is substantially the same as in a previous action instituted by the plaintiff in the Kowloon District Court under No. 11217/83 against the 1st defendant. The only material difference is that the claim in the District Court was for refund of rent amounting to $6,400. The action in the District Court was dismissed by Judge Leong on the 1st November 1983 and an application for a review was dismissed on the 25th November 1983.

4. The plaintiff appeared in person before me and contends that the present action is entirely different from that issued in the District Court. She also seeks an adjournment of the hearing of the appeal so that she can obtain a transcript of the proceedings in the District Court. Permission I am told has been given by the District Judge to inspect the file, but not to take the notes. The application for an adjournment was opposed by Mr. Wong who appeared for the defendants.

5. Mr. Wong cited Reichel v. Magrath (1889) XIV A.C. 655 where Lord Halsbury L.C. at p. 668 said:-

        "My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the vicarage is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.

        I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.".

He also referred to Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. (1975) A.C. 581 with regard to the 2nd defendant who was not a party to the District Court action where it was held that it is an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.

6. It is quite clear upon a perusal of the pleading in this action and that in the District Court that the plaintiff is attempting to litigate the same cause of action with a different prayer for relief. The present action is res judicata and therefore an abuse of the process of the Court. The application for an adjournment is refused, and the appeal is dismissed with costs.