LIM BOON KICK and Another v. KELVIN LIM KOK SAI and Another

IN THE COURT OF APPEAL

1995, No. 97
(Civil)

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J U D G M E N T

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Litton, V.-P.:

1. What we have before us is an urgent interlocutory appeal.

2. The defendants in the action appeal against an order made by Deputy Judge Le Pichon this morning whereby she dismissed a summons taken out by the defendants under Order 32 rule 6 of the Rules of the Supreme Court to vary an ex parte order made by Rogers J on 27 March 1995. She did so without hearing the merits, on the ground she had no jurisdiction to "vary" Rogers J's order.

3. An ex parte order by its nature is provisional. Rogers J only heard one side, that is to say, the plaintiff, and plainly did not and could not have intended to make any definitive order. Order 32 rule 6 enables a High Court Judge to set aside any order made ex parte. It must follow that if that jurisdiction were exercised, the court could make another order in place of the one discharged, to do justice between the parties as he or she sees fit at that time. Deputy Judge Le Pichon said she did not have jurisdiction to entertain what was sought in the defendant's summons. Plainly, she erred in that regard.

4. The matter is obviously urgent. There are two orders made ex parte by Rogers J which are mandatory in nature. One such order requires the 1st Defendant to deliver to Mr Hill as Receiver the certificates in respect of 145,000 shares in the 2nd Defendant company, together with instruments of transfer and bought and sold notes. The other requires the 1st Defendant to execute all documents and do all things necessary for the purpose of effecting the transfer of 145,000 shares into the name of the Receiver. We have been told that the first order has been executed, that is to say the scripts have been delivered over to the Receiver but the second order has not yet been complied with.

5. Mr Poon on behalf of the plaintiffs undertakes to desist from contempt or other proceedings to enforce compliance with the second order until the proper disposal of the defendant's summons: an undertaking in my view very properly given.

6. In my judgment, the deputy judge has plainly erred. The point which was taken before her seems highly technical in nature. It is true that O32 r6 does not refer to any power to vary, but the High Court pursuant to s27L of the Supreme Court has interlocutory powers to grant an injunction or appoint a receiver in all cases where it appears to the High Court to be "just or convenient" to do so; plainly, in this exercise of her interlocutory jurisdiction, the deputy judge could have made an order in the terms set out in the summons, if upon a consideration of all the material it was right to do so. The "amended order" annexed to the summons was simply a convenient way of indicating the defendants' position at that interlocutory stage.

7. In my judgment, the appeal should be allowed and this matter be remitted to the High Court with a direction from us that the defendants' application under O32 r6 be heard as soon as practicable, counsel having indicated that half-a-day would be necessary to dispose of the matter. I would make an order in those terms.

Godfrey, J.A.:

8. I agree. I would hold that the jurisdiction of the court to set aside an order made ex parte enables the court to set aside the order in part, i.e., to vary it. When the matter comes before the court inter partes, a party may ask the court to substitute for the original order any other order that it may seem to the court just and convenient to make. Order 32 rule 6 does not trammel the jurisdiction of the court. It is purely a procedural rule. The fact that it refers to an order made ex parte being "set aside", and does not add the words "or vary", seems to me to make no difference whatever. The point before us is purely technical.

Mayo, J.A.:

9. I agree and have nothing to add.

Litton, V.-P.:

10. The appeal is allowed. The order for costs would be as follows:

(1) That the costs of this appeal be to the defendants in any event.

(2) That the order for costs made by Deputy Judge Le Pichon be discharged and in place thereof there be an order that the costs of today's hearing before her be reserved to the judge who hears the summons.