CHENG CHEUNG WANG v. LO NOI YUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 1083 OF 1986 & 1236 OF 1986

___________

___________________

___________

JUDGMENT

___________

Power, J.:

1. An originating summons was issued in the High Court on the 11th of October 1984, in which the plaintiff Mr. Cheng Cheung Wang applied, on behalf of himself and 47 co-owners of flats in the Han Palace Building, for orders dissolving the Management Committee, for an account of monies paid to the Management Committee in accordance with the Deed of Mutual Covenant and for appointment of an administrator.

2. This matter has a tortuous history. Interim orders have been made in it in a number of courts. The principal order, with which we are primarily concerned today, was made by Deputy Judge Barnett on the 23rd of November 1984.

3. The hearing of the originating summons had finally came on before District Judge Scriven on the 1st of May of this year and, on the second day of that hearing, it was adjourned after the 6th defendant had become ill.

4. At the time of that adjournment, District Judge Scriven ordered, "on an interim basis", and those words must be emphasized, that the Management Committee be disssolved and that Messrs Collier Petty be appointed administrator of the building for three years with effect from the 23rd of November 1984. I pause here to remark that the District Judge was here doing no more than ensuring that the position, as it had obtained for the previous 18 months, continued thereafter.

5. There seems no doubt that he made this order because a question had arisen as to whether or not the Court making the original interim order had had jurisdiction to do so. It was clear that he had jurisdiction and that he made the order he did to ensure that the status quo and would continue. He further ordered that costs of and occasioned by and thrown away by the adjournment be paid by the 6th defendant to the plaintiff, the 1st defendant, 5th defendant and 7th defendant in any event. He also made an order as to the 6th defendant's address for service. He specifically ordered that there be liberty to apply on notice. Again that part of the order must be underlined and linked to the opening words of the order which were that it was "on an interim basis". He further ordered the Hong Kong Industrial Commercial Bank to disclose details in its possession of the account number of the incorporated owners of the Han Palace. Finally he ordered the 1st - 7th defendants to disclose to the plaintiff, on or before the 9th June, copies of any further accounts.

6. Before us today the 1st - 5th defendants are represented by Mr. Percy, the 6th defendant appears in person and the 7th defendant is represented by Mr. Chu. Mr. Percy and the 6th defendant submit that the order made by the trial Judge at the time of the adjournment was, in effect, a final order and that an appeal to this Court properly lies therefrom.

7. The paucity of the material originally placed before us was such that we cannot help but remark that the parties came ill-prepared to argue their application for leave. Having now considered further material, which was handed up at a very late stage, we find that we are quite unable to accept the contention that an appeal presently lies from the order of the trial Judge. As I have already said, the trial Judge, when he made the order, stated that he was making it on an interim basis and, as part of that order, made a specific provision that there was liberty to apply on notice. Further, he made clear, although it was hardly necessary, what he meant by those words, when, on the 27th of May, he gave reasons for refusing leave to appeal. At that time the said:

"I can understand Mr. Percy's instinctive dislike of an order which, whilst expressed to be an interim measure, does provide for a fixed period of 3 years for the implementation of one of its terms, but there is liberty to apply, and if its other provisions are what the majority of the owners of the building urgently want, and if no immediate or patent injury is inflicted on the minority, then the superficial objection to the order's apparent finality dissolves. "

8. Although the order appointing the administrator was stated to be for 3 years it was not, we are quite satisfied, a final order. It was an interim order made in the course of a trial which had to be adjourned because of the illness of one of the parties. We are satisfied that no appeal can be brought from such an order.

9. Any order appointing an administrator can be canvassed upon appeal when the trial Judge has finally determined the issues. Appeal will also lie, at that time, against the order that the 6th defendant pay the costs of the adjournment. All of these matters can, if the aggrieved party wishes it, be, at the proper time, made the subject of appeal. Leave to appeal is, therefore, refused as regards the 1st-6th defendants.

10. The 7th defendant complains only as to the order which was made requiring it to disclose further accounts. It is suggested that this order was not properly founded and should only have been made if proof had been furnished to the Court that such accounts were in the possession of the party. We see no merit in this argument. We are satisfied that it was perfectly proper for the trial Judge to make such an order. It is after all no more than an order to discover made against a party to an action. Leave will also be refused in the case of the 7th defendant.

11. Mr. Pirie, who appears for the plaintiff, seeks his costs against all defendants. He does so against the 1st - 5th and the 7th defendants upon the basis that, although they were bringing ex parte applications for leave, he was called upon, mainly because of the paucity of material provided by the applicants, to assist the Court in the course of the argument. We are satisfied that this cannot found an application for costs and we make no order as to costs with regard to those defendants.

12. As to the 6th defendant, it appears that a copy of the notice of motion for leave to appeal was left by someone, it was not clear who, with the solicitors for the plaintiff. They then instructed Mr. Pirie who appeared today. The document left with the solicitors was headed "Notice of Motion for Leave to Appeal" and it is made plain in the body of the document that the 6th defendant was asking for leave to appeal. The plaintiffs were not, that being so, required to appear upon what the rules make clear is an ex parte application. Mr. Pirie suggested the practice is that the other party does appear on such applications because the Court sometimes goes on to determine the appeal. That may be so, but in this case, that has not occurred. The application for leave has been dismissed. A party who appears in such circumstances, unless by agreement with the other side, has, in our view, no entitlement to costs. Mr. Pirie has, as he points out, assisted the Court by rising on a number of occasions to provide us with facts which were not in the papers. This does not, however, entitle him to costs of an appearance in an ex parte application to which he was not a party. In the application by the 6th defendant we make no order as to costs.