XCHRX PANG WAI SHING v. THE CAPITA CORPORATION HONG KONG LTD.

1998 No. A9626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

____________

____________

______________

J U D G M E N T

______________

1. The 2nd Defendant appeals against Master Cannon's decision on 30 December 1998 giving the Plaintiff leave to enter judgment against him with costs on an indemnity basis.

2. Looking at the papers had left me with the impression that the Plaintiff was saying that this appeal should go to the Court of Appeal because it is covered by either item (HK)(a) of O.58, r.2 or item (HK)(c) thereof. But at the hearing Mr YEUNG, for the Plaintiff, informed me that he is only saying that this appeal should go to the Court of Appeal because it is covered under item (HK)(c).

3. That item covers judgments, orders or decisions (other than interlocutory ones) of a Master given or made on the hearing or determination of an application under O.84A, r.3. But what the Master did, which was to give judgment against the 2nd Defendant with costs on an indemnity basis, could not be under O.84A, r.3. That rule applies where there has been a failure to give notice of intention to defend or failure to file a defence; and the 2nd Defendant has filed a defence.

4. Accordingly I have to entertain the appeal. Entertaining it, I ask myself what jurisdiction the Master had to give judgment against the 2nd Defendant, upon a summons under O.84A, r.3 when that rule does not apply to the 2nd Defendant's situation, he having filed a defence. I am unable to see that she had any jurisdiction to do that. So I feel obliged to allow the appeal so as to set aside the judgment which she gave against the 2nd Defendant.

5. There was another way for the Plaintiff to proceed. But the 2nd Defendant being in person and the Plaintiff being represented, it is not for me to say anything which might indicate how the Plaintiff can yet proceed. I confine myself to the matter immediately at hand. Doing so, I will, as I indicated, simply allow the appeal and set aside the judgment which the Master gave on 30 December 1998.

6. As to what the Master did, I add this. It does not appear to me that the Master was, as Mr YEUNG contends, trying the action under rule 3(5) of Order 84A. No trial appears to have taken place; and no notice of trial which a party, especially one in person, would need seems to have been given. Indeed, the Master's formal Judgment as drawn up says on its face that "leave to enter judgment" against the 2nd Defendant was given. The jurisdiction to do that does not arise where, as here, a defence has been filed. So the appeal is, as I have already said, allowed.

7. The question of costs remains.

[Submissions on costs]

8. I award the 2nd Defendant (Appellant) the costs of this appeal and the costs of the application below against the Plaintiff (Respondent).