RICHIE INTERIORS LTD. v. SANKO TECHNOLOGY LTD.

HCA 4365/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4365 OF 2001

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J U D G M E N T

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1. I have already disposed of Action 4366. The circumstances in Action 4365 are only different from Action 4366 in that at the hearing below, it was alleged that the legal representative appearing on behalf of the 1st Defendant had conceded that the judgment was a regular judgment. Upon hearing the replay of the tape of what happened in the court below, counsel now agree that the concession was indeed made by the legal representative appearing on behalf of the 1st Defendant, if only grudgingly at the invitation of the learned Master.

2. The question then is, does it make any difference in the present case that a concession had been made in the court below given that all other facts of the two actions are practically identical?

3. An appeal from the Master, of course, is a re-hearing of the matter in question. In the case of Charlesworth & ors v. Focusmulti Limited, a case I referred to in my earlier ruling, the point was not spotted by counsel on both sides in two hearings below and indeed it was not spotted until the hearing of the appeal itself. More fundamentally, I cannot see how a concession can confer jurisdiction on the court to enter a default judgment contrary to the provisions of Order 13 Rule 7.

4. Mr Wong for the Plaintiff strongly argued that by making the concession, the legal representative must be taken to have waived any irregularity there might be in the entering of the default judgment.

5. In Charlesworth, it was however pointed out that a premature judgment is a nullity and as such, is outside the operation of Order 2 Rule 1. It is, I think, trite law that while an irregularity can be waived by the parties or rather the party attacking the irregularity, a nullity cannot be waived.

6. In my view, given the very strong language of Order 13 Rule 7, it was not possible for the legal representative of the 1st Defendant to confer jurisdiction on the court to allow the default judgment to stand where plainly it was entered contrary to that rule. I therefore rule that the judgment in the 2nd action should also be set aside for the same reasons which I have given in the previous action.

7. I can see, however, that there is a strong case for the Plaintiff to say that the costs in the court below should not be disturbed. I therefore allow the appeal from the Master with costs without disturbing the order of costs below.

8. What I propose to do is to allow the 1st Defendant to adjourn the hearing of the summons for leave to adduce further evidence sine die with liberty to restore.