XCHRX CHOY BING WING t/a BING CHOY & ASSOCIATES v. THE HONG KONG & SHANGHAI HOTELS LTD.

1992, No. Con 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. The parties have been involved in litigation over a contract concerning the Peninsula Hotel extension for some years. This culminated in the Court of Appeal ordering that the matter be referred to a Master to assess what was reasonable sum to be paid by the defendant to the plaintiff for services rendered by the plaintiff to the defendant. This assessment was carried out by Master Jennings over two days in February and March 1997. On 5 May 1997, Master Jennings handed down his written assessment. He concluded his judgment by saying - "I will hear the parties on the question of interest and costs on a date to be fixed." Thereafter, Master Jennings retired, and he has left Hong Kong.

2. The hearing regarding interest and costs was commenced before Master Cannon on 29 July 1997. Neither party then challenged the appropriateness of these matters being determined by Master Cannon, but the Master raised this, and directed that the parties address her on "a Master's jurisdiction to hear a part heard assessment". Master Cannon decided that the "principle is that once seized of an assessment, it is incumbent on the Master or Judge to deal with all the issues in the case". She concluded "that I do not have jurisdiction to adjudicate on the issue of costs and interest in the case". Master Cannon thought that the matter should be taken on appeal "on the basis that Master Jennings omitted to make a decision on al the issues in the case of which he was seized."

3. The defendant has appealed against this decision.

4. Before me, Mr Natali wanted me to decide the matter afresh, and deal also with the matter of interest and costs. However, Mr Choy told me that he was not prepared to deal with the substantive issues because he had understood that the only matter to be argued before me was the matter of jurisdiction. This, in view of the contents of the notice of appeal, is understandable. A layman would not know that such an appeal as this proceeds as a re-hearing. Very fairly, Mr Natali conceded that, at this stage, I should deal only with the issue of jurisdiction.

5. Before me, Mr Choy has continued his stance that Master Cannon did not have jurisdiction to decide the matters of interest and costs. He says that the whole proceedings relating to the assessment should be commenced afresh before another Master. He is frank about why he wants this. He hopes that a fresh assessment will yield a result more favourable to him.

6. The jurisdiction given to Masters under Order 32, rule 11 and elsewhere is given to any Master. It is not a personal jurisdiction. Any Master had jurisdiction to make the assessment and to decide the matters of interest and costs. Obviously, where a jurisdiction has been exercised by a Master by making a decision, that jurisdiction is exhausted, and another Master cannot make another decision in relation to the exercise of the same jurisdiction while that decision stands. So, in relation to this matter, no other Master may make an assessment while Master Jennings decision stands. There is no reason to set aside that decision. The time for appealing against it has long expired. Before jurisdiction is exercised by making a decision, any Master may exercise that jurisdiction. Clearly, there are restrictions on the way that jurisdiction may be exercised. For example, where a Master has heard evidence and argument, but has not rendered a decision, it would not be proper for another Master to step in and give the decision without hearing that evidence and argument. But that is not because he does not have jurisdiction to do so; it is because he would be rendering a decision without giving the parties a proper hearing. In this matter, Master Jennings has not discharged the jurisdiction to decide the matters of interest and costs. It follows that any Master has jurisdiction to hear the parties on these matters and decide them.

7. Accordingly, the appeal succeeds. The parties should now appear before a Master to obtain a decision on the matters of interest and costs.

8. As to costs before me and Master Cannon, I am inclined to think it would not be fair to the plaintiff to order him to pay these costs. He did not initiate this point. He simply went along with the Master. I make an order nisi that there be no order as to costs.