LILY FENN & PARTNERS (A FIRM) v. NG WAI HIN, JACKY t/a JACKY NG& CO

DCCJ4077/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4077 OF 2009

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BETWEEN

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D E C I S I O N

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1.  The question for me to decide today in relation to the summons taken out by the Defendant for leave to execute against two partners of the Plaintiff firm is, now that the Plaintiff has paid the sum of $50,000 which had earlier been ordered to be the costs of the previous hearing for the Order 14 application, whether the Defendant should have taken out the summons for leave to execute in relation to that sum against the individual partners of the plaintiff’s firm, namely Dr Fenn and a Mr Tse.

2.  Dr Fenn, who appears on behalf of the firm today, submits that the action taken by the Defendant was aggressive and totally unnecessary because the Plaintiff partnership has ample assets in Hong Kong which the Defendant must have known about; and it was totally unnecessary and out of proportion to the amount being claimed, for the Defendant to apply for leave to issue execution against the partners personally.

3.  She also submits that the Defendant was not entitled to issue the summons to ask for leave under Order 81 rule 5(4) because there were other ways of execution, namely under rule 5(1) and rule 5(2), and in relation to rule 5(2), Dr Fenn is a partner of the firm who has admitted in the pleading of the case that she is a partner of the firm so that under rule 5(2), effectively (since Dr Fenn has admitted that she is a partner of the firm) the Defendant can go straight to execution against her.

4.  Whether that is something that Dr Fenn would have liked or not is a matter of conjecture for me so I will not go into that, but Mr Ko for the Defendant submits that it is not necessary for the Defendant to exhaust the other modes of execution under Order 81 rule 5 before the Defendant can apply under rule 5(4) for leave to execute the judgment or the order against an individual partner, and with that, I agree. The only question is that it would be, and it is correct to say that it was, unnecessary for the Defendant to include Dr Fenn in the summons because in fact the Defendant would not have needed leave from the court to execute against Dr Fenn personally because she had already admitted in the pleading that she was and is a partner of the firm. However, that would not have affected the legality and validity of the summons nor, at the end of the day, the quantum involved when one talks about the costs of the summons and the application.

5.  My ruling in relation to the effect of Order 81 rule 5 is that before a party can apply under rule 5(4) he does not need to exhaust the remedy or mode of execution available to him under rule 5, for example, rule 5(1), and therefore the Defendant was entitled to issue the present summons.

6.  For that reason, I will give costs to the Defendant, to be taxed if not agreed, in any event. So it is costs in any event.