TAM HO MAN v. WONG KWOK TAI

1985, No. A4736

IN THE HIGH COURT OF JUSTICE

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DECISION

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1. On 22nd April last, I made an order by consent in this action, which has resulted, in a judgment being entered by a further order dated 9th September in the plaintiff's favour against the defendant for $29,492.68. Since that happened, the plaintiff has issued but apparently not served a bankruptcy notice. But its very issue has attraced certain publicity in a certain magazine. The defendant is an accountant, and is acutely concerned about the effect of bankruptcy upon his professional status. He is, no doubt, right when he says that if this plaintiff presses him into bankruptcy, the plaintiff, in the vernacular, will be killing the goose that might lay the golden egg, because he will be depriving him of a means of livelihood and probably depriving him of any prospect of satisfying the judgment. That has prompted this application now by the defendant, which is lodged under 045, r. 11 for an order that the judgment be stayed, for an order that I should, in effect, grant a stay of execution on the judgment upon the basis that certain stated instalments are paid. The question arises whether this court has any jurisdiction to make any such order.

2. The jurisdiction is said to arise and only said to arise under 045 r. 11. 045, r. 11 allows a party to apply for a stay of execution of a judgment or order "on the ground of matters which have occurred since the date of the judgment or order". The matter relied upon, and said to have occurred since the judgment or order is in fact the issue of the bankruptcy notice. Now the footnote in the White Book tells us that this particular rule was taken from the former 042, r. 27 which have put an end to proceedings by audita querela. The scope of the rule is, I believe, indicated by that footnote and the form of the proceedings which were abolished by the predecessor to this rule. Mr. Ching who appears for the applicant, has been kind enough to produce to me Volume 1 of Bouvier's Law Dictionary published in 1897, which has a very interesting note about audita querela. It is described as "a form of action which lies for a defendant to recall or prevent an execution on account of some matter occurring after judgment amounting to a discharge and which could not have been and cannot be taken advantage of otherwise". By way of examples given of where this form of action is open; "it lies where an execution against A has been taken out on a judgment acknowledged by B without authority in A's name; generally, for any matters which work a discharge. occurring after judgment entered, and for matters occurring before judgment which the defendant could not plead through want of notice or through collusion or fault of the plaintiff".

3. All the examples given are matters which go to question the validity of that judgment as against that defendant. They are very far removed from matters which go to the enforcement of that judgment e.g. the giving of a notice in bankruptcy. Those passages in Bouvier certainly have served to confirm my initial impression on. reading the rule. "On the ground of matters which have occurred since the date" refers to matters which go to the validity of the judgment, and which if established before the court, might justify the court in saying that, this is not a judgment which on the material now placed before it, it will allow to be executed upon.

4. In these circumstances, I have no doubt that I have no jurisdiction to make the order sought under 045, r. 11, because this application simply does not come within its term. I have some sympathy with this defendant who may be said to be faced with extinction arising from a judgment debt which he now is unable to meet. But he must deal with that in a different way to this. This application has to be dismissed with costs.