MESSRS BAKER & MCKENZIE v. HENNEX INDUSTRIES LTD AND OTHERS

DCMP 809/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 809 OF 2014

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DECISION

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INTRODUCTION

1. The subject matter of the interpleader proceedings is a disputed sum of $193,800.

2. Subsequent to my judgment handed down on 20 August 2014, (“the Judgment”), the 3^rd and 4^th claimants took out a summons on 25 September 2014 for an order to amend the Judgment pursuant to Order 20 rule 11 of the Rules of District Court, Cap 336H.  The summons has two parts, amendments on (i) arithmetical error; and (ii) costs.

3. Order 20 rule 11 of the Rules of the District Court reads:-

“Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without an appeal.”

1^st Application

4. The 1^st part of the summons concerns an amendment to the release of the disputed sum paid into court to both the 1^st and 2^nd claimants; and the 3^rd and 4^th claimants.  The amendment arises from an error in paragraph 15 of the Judgment, “the 1^st and 2^nd claimants agreed to pay a further sum of $40,000 to the 3^rd and 4^th claimants”.  The sum of $40,000 does not form part of the disputed sum because it was agreed in the direction hearing on 5 May 2014 that such sum be released by the applicant to the 1^st and 2^nd claimants.  

5. The 1^st and 2^nd claimants conceded, and I agree the amendment is premised on a purely arithmetical error.  No prejudice will be caused to either party, an order of amendment should be granted.  I  order paragraph 32(i) and (ii) of the Judgment be amended as:-

(i) Part of the disputed sum of $160,500 paid into court be released to the 1^st and 2^nd claimants; and

(ii) The remaining of the disputed sum of $33,000 paid into court be released to the 3^rd and 4^th claimants forthwith.

2^nd Application

6. The 3^rd and 4^th claimants seek to amend the costs order of the interpleader proceedings in the 2^nd part of the summons.

7. I ordered costs to follow the event in paragraph 27 of the Judgment. The costs order appeared in paragraph 32(iii) and (iv) :-

(i) Costs of the interpleader proceedings to be paid by the 3^rd and 4^th claimants jointly and severally to the 1^st and 2^nd claimants, be summarily assessed at $69,670.

(ii) Costs of the applicant be paid by the 3^rd and 4^th claimants jointly and severally, to the 1^st and 2^nd claimants in sum of $33,884.

8. The 3^rd and 4^th claimants now seek to amend the above-mentioned to:-

(i) There be no order as to costs of the interpleader proceedings between the 1^st and 2^nd claimants and the 3^rd and 4^th claimants; and

(ii) The costs of the applicant in the sum of $33,884 be respectively paid by the 1^st and 2^nd claimants in sum of $16,942 and paid by the 3^rd and 4^th claimants in the sum of $16,942 forthwith.

9. Mr Leung, solicitors for the 3^rd and 4^th claimants submitted, the amendment of costs order falls squarely within the ambit of Order 20 rule 11 of the Rules of District Court.  The reason being, the 3^rd and 4^th claimants are partially successful in the interpleader proceedings only, when the court has ordered costs to follow the event, the proper costs order should be no order as to costs between the parties.  Secondly, the applicant’s costs previously assessed at $33,884 shall be borne equally by both the 1^st and 2^nd claimants; and the 3^rd and 4^th claimants.

10. Mr Leung relied on Man Ping Nam v Man Fong Hang (2007) 10 HKCFR 140.  The plaintiff in that case succeeded in a sum of compensation.  The defendant in that case paid the judgment sum to the plaintiff with interest.  The defendant appealed to the Court of Appeal and the appeal was unanimously allowed.  The Court of Appeal judgment ordered judgment for the plaintiff be set aside, nevertheless, without an express order for repayment of the judgment sum with interest by the plaintiff to the defendant.  The plaintiff refused to repay the monies, the defendant applied for relief to amend the order under “slip rule”.  Riberio PJ ordered the plaintiff to repay the monies to the defendants, with interest.  The following principles are enunciated:-

“10. Even if an Order as drawn up is ambiguous, it is well settled that the court (at all levels) has an inherent or implied discretionary power to clarify the original order if the court’s intention appearing from the body of the judgment is manifest. As Lord Penzance stated in Lawrie v Lees (1881) 7 App Cas 19 at 34-35:

“I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court - to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain.  I think that power is inherent in every Court.”

See also the cases cited in Hong Kong Civil Procedure 2007 at 20/11/1:

“11. In the absence of any prejudice to the other party (in which event discretionary considerations may come into play), it matters not that an application for such clarification is made after the Court’s order has been sealed since it operates to make plain what the Court has in fact already decided.  It does not involve the Court acting when functus officio.” [emphasis added]

11. I am not satisfied the 2^nd part of the summons, to amend of the costs order in paragraphs 32 (iii) and (iv) of the Judgment qualifies clarification of an ambiguous judgment.  The “slip rule” is inapplicable.  It was ordered costs to follow the event.  It is trite law that costs are in the discretion of the court.  The amendment of the 1^st part of the summons, in paragraphs 32(i) and (ii) of the Judgment only relates to correction of figures without disturbing the body of the Judgment, I am of the view that the 3^rd and 4^th claimants’ application to amend the costs orders is in effect asking the court to re-decide or to re-exercise discretion on costs in the interpleader application.  Such application falls outside the ambit of the “slip rule” principle.

Conclusion

12. I grant an order in terms of paragraphs 1.1 and 1.2 of the summons.  Paragraphs 1.3 and 1.4 of the summons be dismissed.

13. The 3^rd and 4^th claimants ask for no order as to costs of this summons.  As the 3^rd and 4^th claimants are unsuccessful in the 2^nd part of the application only, I order the 3^rd and 4^th claimants to pay half of the 1^st and 2^nd claimants’ costs of this summons, to be taxed if not agreed.

14. I thank solicitors for the 1^st – 4^th claimants’ assistance.