XCHRX WING HANG BANK LTD. v. CRYSTAL JET INTERNATIONAL LTD. AND OTHERS

HCMP 5014/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.5014 OF 1999

____________________

_____________

D E C I S I O N

_____________

1. This is an appeal from a decision of Master Cannon given on 6 January 2000 in which she dismissed the 1st Defendant's application to strike out the Plaintiff's proceedings on the ground that the Plaintiff had no jurisdiction to proceed under Order 88 of Rules of the High Court. Order 88, Rules of the High Court deals with mortgage actions and in the present case, the Plaintiff is a bank, and the 1st Defendant, Crystal Jet International Limited is the mortgagor of certain property which was mortgaged to the bank. The 2nd Defendant is the borrower, and the 3rd and 4th Defendants are guarantors, in the case of 3rd Defendant a corporate guarantor and in case of the 4th Defendants, three individual guarantors.

2. At the hearing before Master Cannon, it was apparently submitted to her that the entire proceedings should be struck out on the basis that there was no jurisdiction to proceed under Order 88 of the Rules of the High Court.

3. And it seems to have been the submission, whether made then or made before me today, that because there were factual disputes apparent on the face of the affidavits filed, therefore somehow the jurisdiction of Order 88 is not applicable.

4. In my view, that is an erroneous supposition. As Mr Yuen, Counsel for the Plaintiff rightly points out, it is open to the Plaintiff to submit that even with the factual disputes which may be apparent on the face of the affidavits, it is open to the Plaintiff to submit that even assuming the facts in favour of the Defendants, the Plaintiff should be entitled to the relief which it seeks. I do not prejudge that matter: that is the matter to be considered when all the affidavits are considered and legal submissions advanced. Master Cannon simply adjourned the hearing of the Plaintiff's application to a date to be fixed before a judge in chambers (that has now been fixed to 6 April) and she also gave further directions as to the filing of further affidavits. No decision was made by her whether the matter ought to be continued as begun by writ or not.

5. In my view, the application to strike out the Originating Summons was misconceived. That was something which carried through to the Notice of Appeal. And as far as Ms Tsui's present application to amend the Notice of Appeal is concerned, it would not be right, in my view, to permit any amendment to effectively assume that the Master had refused to give directions that the matter continue as if begun by writ. The matter simply was not advanced before her; all that was advanced before her was an application to strike out which, in my view, she was quite right to dismiss.

6. Accordingly, the 1st Defendant's appeal is dismissed with costs.