SKINK LTD AND ANOTHER v. COMTOWELL LTD AND ANOTHER

1994, No. 74
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. On 28 March 1994, Kaplan, J. dismissed an application for summary judgment made by Skink Limited, a company in liquidation ("Skink") in an action brought by Skink, as plaintiff, against two defendants, Comtowell Limited ("Comtowell") and Malcolm Basil Maydwell ("Mr. Maydwell"). The judge made an order giving Comtowell and Mr. Maydwell their costs of that application. Skink appealed to this court; but on 21 October 1994 this court dismissed its appeal and made an order giving Comtowell and Mr. Maydwell their costs of the appeal. Skink, and the Official Receiver (who has for some reason since been joined as a plaintiff in the action) now ask this court to amend the two orders to which I have referred. They say that the orders for costs should have been made in favour of Comtowell only (against whom alone the application for summary judgment had been made) not in favour of Comtowell and Mr. Maydwell: and they say that we have jurisdiction, under Order 20 rule 11 of the Rules of the High Court, or in our inherent jurisdiction, to put the matter right. We have to decide if we do have any such jurisdiction, and if so, whether we should exercise it.

Background

2. This may, for present purposes, be very shortly stated. The action in which Skink launched its unsuccessful application for summary judgment is an action on which, essentially, it seeks to set aside dispositions of two properties made by Skink in favour of Comtowell. Skink's case is that these dispositions were made fraudulently by Mr. Maydwell with intent to defraud Skink's creditors. Skink's summons for summary judgment was addressed to Messrs. Wilkinson & Grist, Solicitors, as solicitors for Comtowell. Skink's Notice of Appeal to this court was addressed to the same solicitors as solicitors for both Comtowell and Mr. Maydwell.

Jurisdiction

3. The court has an inherent power to vary its own orders so as to carry out its own meaning and to make that meaning plain; and an express power (under Order 20 rule 11 of the Rules of the High Court) to correct any error in any order resulting from an accidental slip or omission. But these powers extend only to the correction of errors in expressing the court's intention. The court has no power to correct mistakes of its own; even where it is satisfied that it has indeed made such a mistake.

The case for Skink

4. Skink argues that the orders as to costs made by Kaplan, J. and of this court ought to have made a distinction between Comtowell and Mr. Maydwell, and it was only by inadvertence that it failed to ask the court to do so. Those orders should have been made in favour of Comtowell only; alternatively, Comtowell and Mr. Maydwell should be treated as if they had severed their defences and therefore each of them should have had the benefit of a separate order for costs.

Conclusion

5. I doubt whether we do have jurisdiction to direct amendment of the two costs orders in question. The errors made, if any, do not seem to me to be errors in the expression of the court's intention. The errors, if any, are fundamental errors. But I have no doubt that we should, at this stage of these proceedings, decline to exercise any such jurisdiction anyway. The facts are that Comtowell and Mr. Maydwell attended both hearings but did not take up any separate stance either before Kaplan, J. or this court. They have incurred and claimed only one set of costs. Skink has been ordered to bear those costs. Its only legitimate concern is to ensure that it gets a proper receipt for the costs it has to pay. If it obtains, whether from Messrs. Wilkinson & Grist or otherwise, a receipt for the payment, being a receipt given on behalf of Comtowell and Mr. Maydwell, it will have obtained a good discharge for the payment. What Comtowell and Mr. Maydwell do with the money is no concern of Skink; at any rate, as far as the present proceedings are concerned. Our refusal of this present application for amendment will not leave Skink a penny worse off; save as to the costs of the application. Whatever the technical merit of the point (and I can see that if the point had been taken timeously, Kaplan, J., and this court, might have decided that any order for costs against Skink ought to be made in favour of Comtowell alone) I am of the opinion that we ought not now to entertain it. I would dismiss the present application (on which Comtowell did not appear), with costs; to be precise, as to the costs of the application I would order as follows :

"IT IS ORDERED that the costs of Malcolm Basil Maydwell of this application be taxed (if not agreed) and paid by the plaintiffs to the said Malcolm Basil Maydwell."

Leong, J.A. :

6. I agree.

Power, V.-P. :

7. I also agree.