Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
2007 PCLL
Cliff Lui
1.
Plaintiffs
(a)
Plaintiffs may be joined if there is a common question of law or fact or where the
claim arises from the same series of transactions: O.15 r.4(1).
(b)
Plaintiffs must be joined with any people jointly entitled to the claim unless the court
grants leave.
(i)
(ii)
2.
(a)
Defendants
Plaintiff entitle to issue proceedings against only some of all defendants jointly liable
for a claim: O.15 r.4(3).
(i)
Where the claim is in contract, however, the defendant may apply to the
court for the case to be stayed pending joinder of those jointly liable: O.15 r.
4(3). That is a discretionary power and might not be exercised where the
other partner can not be found etc.
B.
Legal Aid
1.
(a)
(b)
Criteria
(i)
$162,300
(ii)
Scope
(i)
(ii)
breach of contract
(iii)
professional negligence
(iv)
(v)
industrial accidents
(vi)
matrimonial cases
(vii)
immigration matters
(viii)
(c)
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(ix)
employees compensation
(x)
(xi)
Rate
Contribution
0-20,000
20,001-40,000
1000
40,001-60,000
2000
60,001-80,000
5%
3,000-4,000
80,001-100,000
10%
8,000-10,000
100,001-120,000
15%
15,000-18,000
120,001-144,000
20%
24,000-28,000
144,001-162,300
25%
36,000-40,575
(ii)
2.
(a)
(b)
(c)
Supplementary Scheme
Criteria
(i)
$162,301 !$450,800
(ii)
(iii)
Scope
(i)
(ii)
(iii)
Professional negligence
(ii)
(iii)
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3.
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(iv)
(v)
If the case is settled before a barrister is instructed for the trial, 6% of the
damages recovered will instead be deducted. In addition, the applicant will
also be required to pay all legal costs expended on his behalf (including costs
which cannot be recovered from the opposite party) out of the damages
recovered. However, the total sum deducted will be reduced by the
application fee and interim contribution already paid.
Application Procedure
(a)
(b)
On the day of interview, the applicant should bring along all documents relating to his
case and his means (for example, bank books, salary slips, rent receipts, mortgage
repayment schedule, salaries tax assessment, proof of Comprehensive Social Security
Assistance (CSSA), etc.).
(c)
During the interview, the applicant will be means tested. He will also be asked to give
a statement concerning his case so that the Department can determine its merits (the
merits test). In most cases both the statement taking and means assessment can be
done on the same day.
(d)
In some cases, it may be necessary to obtain additional information from third parties
such as other government departments or public bodies for the purpose of determining
the merits of his case. Once all the information has been collected, the lawyer in
charge of his case will decide whether legal aid should be granted.
(e)
When the applicant is granted legal aid, he should read all the terms of the offer very
carefully, especially the part concerning the amount of his contribution and the
Director of Legal Aids First Charge. If the terms are acceptable, he must sign and date
the form and return it to the Legal Aid Department within 14 days.
(f)
If he accepts the offer of legal aid, he will be issued with a Legal Aid Certificate which
confirms that he has been granted legal aid.
(g)
Once he has been granted legal aid, he must not talk to the opposite party or their
representative about the case or accept money in settlement of his claim without first
consulting the lawyer assigned to represent him and notifying the Director of Legal
Aid.
~~~
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Cliff Lui
Service of Writ
1.
(a)
(b)
(ii)
Hand or leave copy of writ with him, or throw it down in his presence.
(iii)
If he does not take it, he should tell him what it contains and leave it within
his control as possible.
D must be physically within the jurisdiction at the time the writ was
posted / inserted and must have been within the jurisdiction when he knew of
the writ !Barclays Bank v Hahn 1989 HL.
(ii)
(iii)
Registered post to: usual address or address last known by P. Either is OK.
No best-endeavour checks need to be made !Law Kwok Hung 1999.
(iv)
(v)
Deemed date of service is the 7th day after the sending of the writ by
registered post or insertion through the letterbox. That is unless the contrary
can be shown.
(vi)
(c)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
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Deemed effected at the time in which the writ would have been
delivered in the ordinary course of post: s.8 Interpretation and General
Clauses Ordinance.
Modes
- Personally on any one of the partners;
- Personally on person having control or management of the
partnership business, at principal place of business within
jurisdiction;
Not agent because partnership business cannot be carried out on
Service shall be deemed 7 days after writ is sent to the firm unless the
contrary is shown.
If the plaintiff knows that the partnership has dissolved, he must serve
on every person within jurisdiction sought to be made liable.
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(d)
(e)
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Court an make an order for substituted service if you can show that it is
impracticable to serve a person personally.
(ii)
(iii)
Inquiries;
Leave required both for issuing writ under O.6 and for service under O.11.
(ii)
(iii)
Jurisdiction :: Whether P has a good arguable case that his case falls
within one of the heads listed under O.11 r.1(1)(a)-(p) (facts showing
that case somehow relates to HK).
B.
Default Judgment
1.
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Cliff Lui
with each other. The Privy Council reversed this on the facts only, finding that there
was no inconsistent case between the two.
(a)
(b)
(c)
(ii)
Costs are as per Part I, Schedule 2, O.62, being fixed and very low ~$505.
(ii)
(iii)
(d)
Plaintiff may, after D does not give notice to defend after time and on
producing an affidavit / certificate by his solicitor saying that he is not
claiming under O.88 r.1, enter judgment for possession and costs.
(f)
(e)
Plaintiff may, after D does not give notice to defend after time:
As per above
Plaintiff may, after prescribed time and upon filing statement of claim and
affidavit proving due service of writ on D: Proceed with action as if
defendant had given notice to defend.
(ii)
If something happens such that P does not have to proceed anymore, P may
enter judgment against D for costs. E.g. where D paid money into court after
being served.
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2.
(a)
Entering of Judgment
Proof of service of writ: O.13 r.7
(i)
(b)
3.
(a)
(ii)
(b)
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To get default judgment under O.19, you have to give notice that you are
going to do so to a defendant who has given notice of intention to defend or
defend on counterclaim.
(ii)
The time limit is 2 days before entering judgment. It does not have to be
given after default, however !Ho Yuen Tsan v Hop Wing Transportation
1996.
(iii)
(iv)
These requirements are dispensed with if the court had made an order to
extend the time for service of the defence; or if the defendant is not legally
represented and did not state an address at which he can be served.
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C.
!
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1.
Regular Judgment
(a)
Setting aside regular judgment usually occurs on some compassionate ground and is
discretionary.
(b)
Practice requires an affidavit stating that the defendant has a real likelihood that he
would succeed on the facts if the judgment is set aside Park Kit Investment v Cheung
Wan Ping 1999 CA.
(c)
Costs: setting aside regular judgment D pay costs in any event. If the court
considers that P should not have resisted the application, it might order costs to D in
the cause.
2.
(a)
(b)
D.
Irregular Judgment
Court has no discretion and must set it aside, save with respect to terms "Po Kwong
Marble Factory 1996 CA.
(i)
(ii)
Costs: setting aside irregular judgment "P pay costs in any event.
Timeline of proceedings
(a)
(b)
P serves writ
(c)
D files acknowledgment of service within 14 days of being served writ. Including day
of service.
(d)
(e)
D files defence within 14 days of the time limited for giving notice of intention to
defend (as above), or when the full statement of claim is served, whichever is the later.
Usually, the statement of claim is served later.
(f)
P must reply within 14 days of receiving the defence and can submit his defence to any
counterclaim within 14 days of receiving the same.
(g)
~~~
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Cliff Lui
1.
(a)
(b)
Statement of claim already served on defendant, who has replied with A/S: r.1.
(c)
Plaintiff may apply for judgment on grounds that defendant has no defence to part or
whole of the claim sought. See Macmillan Publishers v Thomas Reed Publishers 1993
where court upheld that part of a claim can still use summary judgment if clearly
stated in the summons.
(d)
(ii)
Fraud means that in the narrow Derry v Peek sense !<case name>.
This is because the above claims are subjective and necessitate the use of witnesses.
(iii)
Any specific performance dealing with property and mortgage actions with
under O.86 and O.88.
(e)
Rare for negligence actions and only invoked where liability is absolutely not in issue
or no defence for liability !Wong Tai v Tang Wing Keung 2003. Even conviction is a
matter of weight unsuitable for determination in summary judgment.
(f)
Summary judgment possible for declarations and specific performance if clear case
!Leco Instruments (UK) v Land Pyrometers 1982; Verrall v Great Yarmouth BC 1981.
(i)
(g)
Default judgment against one defendant not a bar against summary judgment against
another where there is joint and several liability (s.5, Civil Liability (Contribution)
Ordinance, Cap. 377).
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(i)
(h)
2.
(a)
Cliff Lui
Joint and several liability can be established vs. multiple defendants it there
are supporting contemporaneous documents despite no signing of an actual
agreement !Asia Television v Mak Chi Kin 2006.
Summary judgment for certain relief must be pleaded or claim will be dismissed
!Chang Man v Ma Shou Yung 2002 where plaintiff wanted to remove the defendant as
administrator of an estate but pleadings only stated that he wanted to revoke the grant
of letters of administration. Court held pleadings had to be amended. Plaintiff cannot
argue by another way to side-step defective pleadings.
Manner in which application under r.1 must be made: O.14 r.2
Supporting Affidavit Requirements:
(i)
(ii)
State belief that there is no defence, save that which relates to quantum.
I verily believe that there is no defence to this action. "
If the plaintiff knows that there might be a defence but states that there is
none, that is an abuse of the court and the SJ may be struck out !M. Pocock
v A.D.A.C. 1952.
(b)
(c)
(iii)
(iv)
(v)
Alternative relief e.g. under O.14A or interim payment under O.29 may be
granted.
(ii)
Interim payment may be granted for actions in damages, debt or other sum.
(iii)
(iv)
Delay
(i)
(ii)
3.
(a)
(b)
(c)
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Delay will not bar otherwise meritorious application !Morrison, Son &
Jones v Yui Wing Construction 1989.
Manner of Defence
D may object to SJ by affirmation: O.14 r.4. The affirmation requires:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Reyes Framework:
(i)
(ii)
If those facts are proved at trial,, could they support a defence as a matter of
law and logic?
(iii)
If those facts are capable of constituting a defence at trial, are any incapable
of belief because of physical impossibility?
(iv)
(v)
Does the plaintiffs claim make sense as a matter of law and fact?
Arguable Defence
(i)
(ii)
(iii)
Shadowy defence: the court should order payment into court as condition
with the leave to defend.
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Cliff Lui
Impecuniosity can be argued, but the defendant must provide frank and
full disclosure that payment is absolutely impossible (not merely
difficult).
- Borrowing from relatives, etc. will be considered Unic v Entus
Developments.
4.
(a)
(b)
5.
Judgment for the plaintiff unless court dismisses action or defendant satisfied
the court: O.14 r.3(1).
(ii)
Court may stay execution of any judgment until after trial of any
counterclaim:
O.14 r.3(2).
(ii)
(iii)
(iv)
Even if defence is shadowy, court should give leave to defend, albeit with
interim payment.
Timeline
(a)
(b)
D acknowledges service and gives notice of intention to defend (else just get default
judgment) (O.14 r.1 above);
(i)
Defence served out of time does not preclude SJ, but there is no further
indulgence after a successful application for a speedy trial.
(c)
Summons before a Master (unless judge is necessary, e.g. for injunctions) or where it
is likely that there will be an appeal against the Masters decision in any event and it
would be more expedient to have the matter heard by a judge: O.32 r.12.
(d)
(e)
If contested, Master will give directions for filing of evidence and will give
estimate of amount of time required for adjourned hearing.
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(ii)
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If not contested, Master can give judgment unless there is a defect in the
plaintiffs case.
(f)
Plaintiff should prove due service of the summons and supporting affidavit in case
defendant does not appear.
(g)
(h)
APPEAL: If order is not granted, plaintiff can adduce new evidence !Asia Television.
(i)
(j)
If claim is for delivery up of a specific chattel and SJ is for the plaintiff, the court has
power to order the defendant to deliver up the chattel without the option to pay the
equivalent value thereof: O.14 r.9.
6.
(a)
Costs
Common Scenarios
(i)
(ii)
(iii)
(iv)
(b)
Successful plaintiff entitled only to fixed costs in accordance with Part II of the Second
Schedule of Order 62 unless order for taxation of costs is expressly made !Cobalt
Industrial v Kin Sun Electronics 1997. The costs recoverable are very low ~$650.
(c)
In a High Court action where P accepts Ds payment into court under O.22 pursuant to
a statutory construction of O.62 r.10(2), 9(1), the plaintiff is entitled to be taxed on the
High Court scale even if the accepted payment was within the District Court monetary
jurisdiction !Wellegant Development v Fine Telecom 2007.
That will obiter still be the case where the claim and damages sought was trivial, etc.
B.
1.
Court may, upon the application of any party or of its own motion,
determine any question of law or construction of any document
at any time where the matter is suitable for termination without
a full trial; and
such determination will finally determine the entire matter
therein.
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(2)
(3)
(4)
2.
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Executable by a Master.
(a)
(b)
Requirements
(i)
(ii)
The determination of the question of law will determine the entire cause or
matter Shell Hong Kong v Yeung Wai Man Kiu Yip 2003.
Questions of law can be determined without a full trial since the court
is not in any worse position than a trial judge.
(iii)
Parties have been heard as to their position on the question of law or they
consent to such a determination.
(iv)
All relevant facts must be before the court. Especially in a case where
implied terms are involved. The circumstances and background need to
be determined by trial !Ng Chun Kwong v First Star Development
2007.
C.
1.
Generally
(a)
Interim payment means a payment on account of any damages, debt or other sum,
excluding costs, which the defendant may be held liable to pay to the plaintiff.
(b)
It is to help the plaintiff who is suffering from financial difficulties from the time of
application until trial !Yeung Sek Sung v Cheung For Ming 1991.
(c)
Whilst an issue of fact might debar an SJ application, interim payment may still be
granted. That is why where SJ fails, resulting in conditional leave to defend, the
condition is usually interim payment. Where unconditional leave results, no interim
payment should be ordered.
(d)
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2.
(a)
(b)
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Procedure
Application under O.29 r.10
(i)
P may apply any time after service of writ on D, after time for
acknowledgement of service has expired.
(ii)
(iii)
Supporting affidavit:
(iv)
Serve summons, affidavit and supporting documents !10 clear days before
return day.
(v)
(iii)
Obtained order for account and for any amount certified due;
Driver is insured;
Public authority;
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Cliff Lui
1.
(a)
(b)
Requirements
(i)
(ii)
Plaintiff is actually a nominal plaintiff suing for the benefit of some other
person AND there is reason to believe that the nominal plaintiff will be
unable to pay the defendants costs; or
Person who has assigned the fruits of the action may be a nominal
plaintiff !Semler v Murphy 1968.
(iii)
(iv)
(v)
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(ii)
Credible testimony that plaintiff will be unable to pay defendant his costs
if successful in defence.
2.
Application Procedure
(a)
(b)
Any person in the position of defendant to apply only (or plaintiff being
counterclaimed against) in the Court of First Instance: O.23 r.1(3).
(c)
At any time (but delay will be taken into account !Henrik Andersen v Huang Kuang
1997, since costs spent after the point when security should have been ordered will
have been wasted.).
(d)
Summons supported by affidavit stating the above requirements and draft bill of costs.
(e)
Master will then fix the amount and give directions on the mode and time for security
to be given. The proceedings are also usually stayed until security is given !Lam Fei
Hong v Wong Kam Fong 1999.
(f)
D can re-apply many times but there must be a material change in circumstance
between each !Henrik Andersen. There, the material changes were: a significant
prolonging of the case; defence witness exceptionally good .
3.
Amount of Security
(a)
Extend to costs already incurred and future costs !Henrik Andersen v Huang Kuang
1997.
(b)
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(c)
Any amount may be ordered between substantial and nominal as the court things just.
(d)
4.
(a)
5.
Manner of Undertaking
Payment into court (common), solicitors undertaking, bank guarantee.
Default / Dismissal / Appeal of action
(a)
(b)
(c)
B.
(i)
(ii)
(iii)
1.
(a)
Procedure
Pre-action Application: O.44A r.1
(i)
Judge may order prohibition even if the plaintiff has not commenced his
action.
(ii)
Application requires:
(iii)
(b)
Draft writ;
Draft affidavit;
That signed order, together with solicitors undertaking that the sealed
order will be produced the next day, should be served to the
Immigration Department; police and 4 copies to the Bailiff..
Court can make an order stopping a person from leaving HK to help enforce
or secure a civil claim for:
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(ii)
A civil claim shall be given the widest meaning !Bunker Holdings v Asia
Pacific Seafood Management 2005 in which any other act was held to
include committals for contempt.
(iii)
Required documents:
(iv)
Writ;
Affidavit in support;
(c)
(ii)
(iii)
Person is about to leave Hong Kong and will therefore obstruct or delay
the satisfaction of judgment.
Required documents:
Writ;
Affidavit in support;
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2.
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Ex parte nature
(a)
(b)
Court may discharge PO if it was made without such full disclosure !Auto Treasure v
Pyramid International 1992.
3.
(a)
(b)
4.
(i)
(ii)
JC should not keep the order up their sleeve and use it to threaten the JD in
pending negotiations !Auto-Treasure v Pyramid International 1992. JCs
must serve JD personally immediately if he can be found.
(a)
(b)
(c)
(d)
P may serve the Director of Immigration and file with the Registrar a notice to cancel
the order and must do so if the order is no longer required.
5.
(a)
(b)
Under (8), the person shall be brought to court on the day after the arrest and the court
may:
(c)
6.
(i)
(ii)
D contravenes the order when he even attempts to leave the jurisdiction, though
catching him may be difficult !Sino Wood Investment v Wong Kam Ying 2006 CFA.
Discharge under O.44A r.4
(a)
(b)
(c)
If the judgment one for money, the court will assess the amount due to the judgment
creditor and may discharge the order or examine the judgment debtor as under O.49B.
(d)
(ii)
(iii)
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The court will discharge the order and give judgment accordingly and order
examination for the remaining parts of the claim as under O.49B.
(e)
7.
(a)
The court may otherwise discharge the Prohibition Order according to such conditions
as it thinks fit.
Compensation to Debtor if Wrongful Order: O.44A r.5
If the court thinks the order was applied for
(i)
on insufficient grounds;
(ii)
Was not caused to lapse by the plaintiff as soon as reasonably possible after
it was no longer required
It may award the debtor reasonable compensation for his loss according to its
jurisdiction.
That will bar the debtor from proceedings against the plaintiff for extra damages.
~~~
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1.
(a)
(ii)
Parties to actions begun by writ must give discovery of any relevant matters
within 14 days pleadings close: O.24 r.2.
(b)
(ii)
(c)
Request from other side to produce for inspection copies of documents referred to in
served documents: O.24 r.10.
(d)
Continuing obligation when new documents come into light !Vernon v Bosley 1997.
(i)
(e)
"
2.
Making Discovery
(a)
(b)
(c)
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1. The Plaintiff has in his possession, custody or power documents relating to the
matter in question in PART 1 of SCHEDULE 1.
2. The Plaintiff objects to producing the documents in PART 2 of SCHEDULE 1
because: [ legal advice or litigation privilege ].
3. The Plaintiff had, but not now, in his possession, custody or power documents
enumerated in SCHEDULE 2.
4. Of those documents in Schedule 2, those numbered [] in that schedule were last
in the Plaintiffs possession, custody or power on [] and the remainder on [].
They have been [] and are now in the possession of [].
5. No one has or ever had, in his possession, custody or power, any document
relating to the matter in question other than those enumerated in the above
Schedules.
(d)
(e)
(f)
Where discovery is made pursuant to a court order, the disclosing party might be asked
to verify its list of documents by affidavit (e.g. previous default).
(i)
3.
Inspecting Documents
(a)
List of Documents may contain a Notice to Inspect, stating a time and place where
the other party can inspect the documents: O.24 r.9.
(b)
(c)
If a party fails to produce documents for inspection or provide copies, the counterparty
may request inspection under O.24 r.11.
(d)
4.
(i)
Onus on requested party to show that the documents are not: (i) relevant; (ii)
within his possession, custody or power; or (iii)
(ii)
Onus will be on requesting party to show that the order is necessary for
disposing fairly of the matter or for saving costs: O.24 r.13.
(a)
(ii)
Documents that might enable the other party to advance his own case
or damage the counterpartys case; and
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(b)
(iii)
Issue must be one determined by pleadings !Pauls Model Art GMBH & Co.
KG v U.T. 2005.
(iv)
(v)
(ii)
(iii)
Legal right to call for the document or control over the entity or individual
holding it !Sun Yuet Tai v British American Tobacco 1999 CA. These are
questions of fact.
(c)
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Privilege:
(i)
(ii)
Can be waived.
(iii)
Grounds
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Litigation privilege
- Communication between client and third party
- When litigation was reasonably in prospect and
- Dominant purpose (intention of author or person under whose
direction, whether particular or general it was brought into
existence) was to obtain legal advice / assist in litigation !
Waugh v British Railways 1980 HL.
Guinness Peat: where intention was derived from the person
(iv)
(v)
5.
Usually not an issue because both sides will have had seen it.
(a)
(b)
Used where: (i) no list; (ii) list clearly inadequate, where order will be for
service of a further and better list of documents by some specified date.
(ii)
(iii)
Order may require defaulting party to verify the better list by affidavit.
(iv)
(ii)
Applicant files affidavit in support and must believe that the documents in
question:
Exist;
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(c)
(d)
(a)
(iv)
Applicant also has to satisfy court that it is necessary for disposing fairly of
the matter or for saving costs.
(v)
Applicant should seek an order for the other side to state on affidavit whether
it has or ever had in his custody, possession or power, the documents in
question.
Extreme cases of default, e.g. fair trial no longer possible !Pang Po King v
Celestial Securities 2002.
(ii)
Contempt is possible.
(ii)
(b)
(iii)
(i)
6.
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Documents exist;
(ii)
During proceedings, on application under s.42, HCO, any party can compel
anyone likely to have or to have had in his possession, custody or power,
relevant documents, to disclose whether he has them and to produce them to
the requesting partys lawyers or experts.
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(iii)
(iv)
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7.
Pre-action Discovery
(a)
(b)
(c)
Will soon change under Civil Justice Reforms, extending pre-action discovery to all cases. Applicant will
have to show: (i) that he is a likely future party; (ii) that the requestee is a likely future party; (iii) that
documents sought are in possession, etc.; (iv) that documents are directly relevant to likely issues to be
raised.
1
Direct relevance is if evidence will likely be relied upon or is adverse to either partys case. The wide Peruvian
Guano test will not apply.
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8.
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(a)
Litigants impliedly undertake not to use info obtained for any collateral purpose other
than those necessary for the conduct of the action !Anex Elextrical v Kingsland
International 1998; Shun Kai Finance v Japan Leasing 2000 CA.
(b)
(c)
Breach !contempt.
(d)
9.
(i)
(ii)
(iii)
(a)
(b)
Scope includes both documents that support and go against the clients case.
(c)
(d)
(e)
(f)
(g)
Implied undertaking.
(h)
Solicitor duties:
(i)
(ii)
Ensure opponents list is complete and any claims of privilege are proper.
(iii)
B.
Interrogatories
1.
General
(a)
(b)
Serve written questions to other party about facts within other partys knowledge and
which are relevant.
(c)
(d)
Obtain admissions on precise points, narrow issues, reduce costs, and encourage
settlement.
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2.
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(a)
Relevant
(b)
Necessary either: (i) for fair disposal of matter; or (ii) for saving costs.
3.
(a)
(b)
Procedure
High Court
(i)
(ii)
(iii)
(iv)
(v)
Response within stated time limit unless servee applies to court: O.26 r.2(2),
3(2).
(vi)
District Court
(i)
4.
Objection
(a)
Application to set aside / vary interrogatories must be made within 14 days of service:
O.26 r.3(2).
(b)
(c)
5.
(i)
(ii)
(iii)
(a)
(b)
Apply to court for order compelling other side to answer on affidavit or oral
examination: O.26 r.5(2).
(c)
(d)
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Introduction
1.
(a)
(b)
Only judges can grant injunctions: O.32 r.11(1)(d) unless the parties agree otherwise.
(c)
(d)
2.
(i)
(ii)
Held: Court has no power to make orders against persons outside its
territorial jurisdiction unless authorised by statute. The only way here was
overseas service of documents, which does not include injunctions. The
respondent was not brought before the court by any valid means.
Classification
Interim Order
~ 2 days effect.
3.
(a)
B.
Permanent Injunction
Example
An (ex parte / inter partes) interlocutory prohibitory injunction requiring the
defendant to stop placing any thing, inclusive of the defendants vehicle with
registration number AA 1234, on or at the plaintiffs car park space at 123 University
Road, Flat A, car park space 1.
Permanent injunctions
(a)
Discretionary relief. Court may still refuse the plaintiff an injunction as its relief and
be left with damages and or other relief as its only remedy.
(b)
Matters that may affect the Courts discretion in whether to grant an injunction,
permanent or interlocutory, include:
(i)
Page 1 of 10
(ii)
~estoppel where the plaintiff knows that the act is being done, is aware
of the legal rights involved yet gives the respondent the idea that he
would not do anything Armstrong v Sheppard & Short 1959.
Laches.
(v)
Where there is evidence that the plaintiff have been protecting their
secrets by deplorable means and hence do not come with clean hands
to the court to protect those secrets Hubbard v Vosper 1972.
Acquiescence.
(iv)
(iii)
C.
Interlocutory Injunctions
1.
Introduction
(a)
(b)
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Interlocutory proceedings:
(i)
No trial of merits
(ii)
(iii)
No full pleadings
(iv)
Page 2 of 10
2.
(a)
(b)
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Law
O.29 r.1
(i)
Injunctions do not have to be pleaded and may be made by any party at any
time.
(ii)
(iii)
Application before writ not allowed unless case is urgent. If issue before
writ, writ must be immediately issued.
(ii)
Damages inadequate remedy for applicant !Fellowes & Son v Fisher 1976
where it was held that injunction should not be granted if there is only
financial loss even if it is not capable of precise calculation.
(iii)
(iv)
(v)
(vi)
Undertaking as to damages.
PD.[]
Allows court to grant injunction without going into the merits of the
case !Wah Nam Holdings v Excel Noble Development 2000. If an
injunction is ex parte, material non-disclosure of applicants financials
may render injunction nugatory.
Evidence that P has the means to support his undertaking may be vital
to the case where all other factors are finely balanced and where
substantial damages may be ordered !Andy Lau v Hang Seng Bank
2000.
Only occurs if all else appears equal since the court is only looking at
affidavit evidence !Entec Pollution Control v Abacus Mouldings 1992
CA; or
If the grant / refusal of injunction will dispose of the action Zheng Lie
Lie v Prosperfield Ventures No.1 2003; or
- Subject of injunction was also subject of LPP;
- In this matter the trial of this matter will not occur and that for
all intents and purposes my determination as to whether this
Page 3 of 10
Cliff Lui
injunction should continue will have the effect of deciding the issue.
If I continue the injunction, the defendants will not be able to use
the document. If I refuse to grant the injunction, the plaintiffs will
be deprived of their plea of privilege.
(c)
Where there is (i) no real dispute as to the facts; (ii) there is agreement
to hear the application as a trial to the action; and (iii) to make the final
order !The Incorporated Owners of Viking Garden v Golden Brains
1991.
(ii)
(iii)
(iv)
Page 4 of 10
(d)
3.
(a)
Cliff Lui
Mandatory Injunctions!
(i)
(ii)
Strong prima facie case required TKI v New Happy 1995 CA.
(iii)
Person with equitable interest may apply for interlocutory injunction but cannot obtain
final order until he joins the legal owners !Takmay Industrial v Wah Sang Industrial
1979.
(c)
(d)
4.
(a)
(i)
Writ
(ii)
Summons
(iii)
Affidavit in support
(iv)
(v)
(ii)
(iii)
(iv)
Material facts are all material matters necessary to enable the judge to
properly exercise his discretion.
(v)
(vi)
(b)
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(b)
Cliff Lui
(c)
D.
(a)
(c)
(i)
Issue of a writ;
(ii)
Affidavit in support;
(iii)
Skeleton argument;
(iv)
Draft order;
(v)
Consequential Matters
Duration of injunction
(ii)
(c)
Required Documents:
(i)
(b)
(b)
inter partes :
ex partes:
Costs
(i)
(ii)
(iii)
(iv)
E.
1.
General
Cliff Lui
(a)
S.21L, HCO and s.52B, DCO: restrain any party from removing from the jurisdiction
any asset located within the courts jurisdiction.
(b)
Seizure of assets preserves them for the JC but does not give them preference over any
particular creditor! The Mareva 1980 CA.
(c)
Mareva should not prevent D from carrying on business as usual and should not
impede him in his defence Derby & Co. V Weldon 1989.
2.
Procedure
(a)
Any time ex parte application due to need for speed and secrecy.
(b)
Affidavit requirements:
(i)
Good arguable case, cf. serious issue to be tried !Nicekind Holdings v Yim
Wai Ning 2000.
(ii)
Court has jurisdiction (sums and main basis of action within HK).
(iii)
(iv)
(c)
(v)
Balance of convenience.
(vi)
(vii)
(viii)
Precluding factors:
(i)
(ii)
Material non-disclosure;
(iii)
(iv)
(v)
Delay
(d)
Amount frozen equal to prima facie justifiable claim !Z v A-Z and AA-LL 1982.
(e)
Other ancillary orders possible include discovery, delivery up of assets, etc. !CBC
United Kingdom v Lambert 1983.
(i)
Page 8 of 10
(f)
(g)
Cliff Lui
Service:
(i)
On defendant; and
(ii)
Third parties holdings defendants assets, incl. banks. Notice must also be
given to notify them of the details and their right to vary the order in as
much detail as possible Guinness Peat Aviation 1992.
3.
(a)
Effect
Takes effect when pronounced on each of the defendants assets it covers and everyone
with knowledge of it must do what the reasonably can to preserve them otherwise they
will be in contempt, especially if they assist in dissipation.
F.
1.
General
(a)
Court has inherent jurisdiction to require the defendant to permit the plaintiff to enter
the premises and remove and detain items pursuant to orders.
(b)
The defendant must grant permission. The plaintiff cannot force their way in.
(c)
2.
(a)
(b)
(i)
Search and detention of any property, but with inter partes and with notice to
the defendant.
(ii)
Not a good alternative. Anton Piller is an ex parte mandatory order with risk
of being found in contempt if defendant refuses.
Law
Affidavit requirements Ng Chun Fai v Tamco Electrical and Electronics 1993:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Undertaking as to damages.
AP Order may be applied for multiple times, e.g. once for hard copies and once for
soft copies of documents !Centaline Property Agency v HK Property Services 2005.
Page 9 of 10
(c)
3.
Since the plaintiff may apply ex parte, defendant may discharge order by urgent
application with notice to the plaintiff. Ex parte discharge may also be possible
!Hallmark Cards v Image Arts 1977.
Draft Order (PD 11.2)
(a)
(b)
(c)
(d)
(e)
4.
(a)
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(i)
(ii)
(iii)
(iv)
(v)
No material should be taken unless clearly covered by the terms of the order;
(vi)
5.
(a)
Costs
To be reserved.
~~~
Page 10 of 10
Cliff Lui
Procedure
1.
Lay Negotiation
(a)
(b)
(ii)
subject to contract
(b)
3.
Lawyer Negotiation
Authority
(i)
(ii)
Ostensible !lawyers have ostensible authority that binds their clients even if
they might not have actual authority!!Waugh v Clifford & Son 1982 CA.
Lawyers should get the actual authority of clients before conducting negotiations to
avoid being sued.
Without-Prejudice Letters
(a)
These letters contain settlement negotiations, and to encourage settlement between the
parties, are generally inadmissible as evidence. If they do not contain any bona-fide
intention to settle, they are liable to be disclosed.
(b)
4.
(a)
(i)
(ii)
Fraud, misrepresentation and other vitiating factors alleged. Court will study
them to ascertain their effect.
(iii)
Estoppel.
(iv)
(v)
(ii)
(b)
Cliff Lui
(ii)
(iii)
(iv)
(v)
If settlement made before trial, apply to the Master; else if settlement made
after trial, apply to the Judge or Master.
(c)
If approval is not granted, Master must give directions for appropriate next step.
Appeal is possible to a Judge in chambers.
(d)
(e)
(f)
(i)
(ii)
(iii)
If settlement after writ and if time permits, court approval should be sought
by interlocutory summons in the specified form.
(iv)
(v)
(ii)
(iii)
Court will not release money even if subject to a first charge by the DLA
until all costs have been quantified. This is to ensure that the claimants
money is not held without interest and to enable the court to ascertain what
the real sum for the benefit of the claimant is.
Costs
(i)
(ii)
If a solicitor does not expect he can get his costs from the defendants, he can
charge against a plaintiffs awarded damages, costs and disbursements, he
must produce for approval at the hearing a statement of the maximum
amount of such costs and disbursements and must justify them.
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Cliff Lui
(ii)
(iii)
Of course, after the case, the solicitor ceases to act and the courts
powers over the next friend are limited.
Committee owes a legal duty to the Court to account for the affairs and
properties administered.
Use of Monies Received !Re YCK 2004, also see settleemnt sum, below.
(iv)
Costs
(h)
(ii)
Applications for future payments out of the fund have to be made to the
Registrar.
(iii)
Plaintiff minor gets full access to the funds upon reaching 18 years.
Page 3 of 8
B.
Cliff Lui
1.
(a)
(b)
The fact of payment-in must not be disclosed to the court until the issue of quantum
and liability have been decided !O.22 r.7(1).
(c)
(i)
(ii)
In a split trial, where costs are being decided for the issue of liability,
payment-in may be mentioned, but not the amount !O.22 r.7(2).
In any action for debt or damages, D may at any time pay into court a sum
of money in satisfaction of a cause of action claimed by the plaintiff.
(d)
(ii)
On making any payment into court under this rule, and on increasing any
such payment already made, D must give notice in Form No.!23 in Appendix
A to all parties; and P must, within 3 days after receiving the notice, send
the defendant a written acknowledgment of its receipt.
(iii)
Acceptance Procedure
(i)
(ii)
(e)
If the action includes claims for e.g. equitable relief, those should be
abandoned if P wants automatic rights to his costs under O.62 r.10(2).
This is because acceptance of payment-in only extinguishes the debt
and damages claims.
Effect of Acceptance:
(i)
(ii)
Costs
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Cliff Lui
(f)
Effect of Non-acceptance
(i)
"
"
(ii)
2.
Need to include the interest on the principal sum up to the date of payment in
determining whether the payment exceeds the award !O.22 r.1(8).
(a)
Calderbank offers are promises to pay the counterparty with costs consequences if the
parties go to trial.
(b)
They are made without prejudice save as to costs but the nature of the letter will be
considered in its entirety !The National Commercial Bank Ltd. 2000.
(c)
(d)
Costs
(i)
CBO shall be taken into account when questions as to costs arise !O.62 r.
5(d).
if
CBO > award (and P ought reasonably have accepted the proposal)
then
"
"
(ii)
The court has a discretion !Luk Kwan Hung Nelson v Victory Mark
Investment 2004 where it was suggested that the proper question is
whether the offeree ought reasonably have accepted the proposal.
Cliff Lui
and because it was reasonable for P to refuse it. There, the costs of the action
had not been dealt with in the CBO. Advice: better to include costs on the
appropriate scale, interest, taxation fees together with the principal.
(a)
Open Offers
(i)
Choy Bing Wing 1998 ! the only way in which D can protect his position
is by means of an open, as distinct from a without prejudice offer.
C.
Settlement by Agreement
1.
(a)
2.
(a)
(b)
(c)
(ii)
(ii)
(iii)
(ii)
(iii)
Procedure
(i)
Within O.42 r.5A !no leave required, order need only be deposited with the
registrar.
(ii)
Outside O.42 r.5A (BB p.531-2) !take out Consent Summons for leave.
Page 6 of 8
3.
(a)
Example
Green v Rozen 1955
(i)
(ii)
(iii)
(iv)
(v)
(b)
Cliff Lui
Order: give judgment for total amount agreed to be paid with a stay of
execution so long as instalments are paid in accordance with the terms
agreed.
Order: and the plaintiff and defendant having agreed to the terms
set forth in the schedule hereto, it is ordered that all further proceedings
be stayed except for the purpose of carrying such terms into effect.
Liberty to apply as to carrying such terms into effect.
Terms:
Order: consent order staying all further proceedings in the action on the
terms agreed on counsels briefs.
Akin to discontinuance.
Terms:
Order: none.
Assignment FE
(i)
(ii)
Page 7 of 8
D.
(a)
(b)
(c)
(a)
Potential Claims
(i)
To be safe, settlement terms should preclude the plaintiff from suing another
in the same matter, because if P does so, that other person might seek a
contribution from you under s.3(3) of the Civil Liability (Contribution)
Ordinance.
(ii)
Alternatively, you can have P indemnify you for any contribution claims that
might be launched against you.
Costs
(i)
E.
Cliff Lui
Court Notification
If case has been set down for trial, if settlement is likely or occurs, the Court Registry
should be informed !O.34 r.8(2), (3), PD 18.1 section B memorandum.
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Cliff Lui
Introduction
1.
(a)
Judgment effective when pronounced. Reasons may be given later: O.42 r.3(3).
(b)
(c)
Court may order immediate execution when giving judgment: O.45 r.14.
2.
(a)
3.
Service of Judgment
Service not necessary for enforcement unless:
(i)
order mandatory; or
(ii)
Limitation Periods
(a)
Action taken on judgment: 12 years: s.4(4), Limitation Ordinance. (Does not apply to
enforcement by execution National Westminster Bank v Powney 1990). Interest on
judgment debt cannot be recovered after 6 years.
(b)
(ii)
In HK, because fresh action may be taken for judgment within 12 years,
courts might just grant leave to avoid wasting time.
B.
Methods of Enforcement
1.
(a)
2.
(a)
(ii)
Garnishee proceedings;
(iii)
Charging order;
(iv)
Appointment of receiver;
(v)
Appointment of receiver;
(ii)
Page 1 of 12
3.
(a)
4.
Cliff Lui
Writ of possession;
(ii)
(a)
O.45 r.4(1) where judgment does not give defendant option to substitute goods with
value:
(b)
O.45 r.4(2) judgment may provide option to discharge by paying assessed value of
goods:
5.
(a)
(i)
(ii)
Writ of sequestration.
C.
1.
(a)
Power under:
(i)
(ii)
(b)
Establish real risk that judgment debtor will dispose of assets to avoid execution
!Steward Chartering v C&O Managements 1980. No need to establish merits.
(c)
2.
(a)
(b)
(c)
s.21B(1), HCO;
(ii)
s.52E(1), DCO.
Court may only make prohibition orders for the following judgments (s.21B(1)
HCO):
(i)
(ii)
(iii)
(ii)
(iii)
(d)
Cliff Lui
(ii)
The above do not apply strictly to (b)(iii), but common law requires that purpose of s.
21B to be satisfied, i.e. that prohibition would not be granted unless judgment would
be impeded for want of a prohibition order !AVCO Financial Services (Asia) v Topma
Electronics 1999 CA.
(e)
(f)
Procedure
(i)
(ii)
(iii)
(iv)
Order subject to discretionary conditions, e.g. that order shall cease to have
effect when JD satisfied judgment: s.21B(4)(b), HCO.
(v)
(g)
(h)
Director of Immigration;
Commissioner of Police;
(ii)
(iii)
Duration:
Effect
(i)
(ii)
Discharge
(i)
(ii)
Page 3 of 12
D.
Oral Examination
1.
Introduction
Cliff Lui
(a)
Generally to question about debts owing to the company and what assets the person
has to satisfy judgment.
(b)
(c)
2.
Comparison
Order 48 (corporate)
Order 49B
3.
Procedure
(a)
(b)
Sealed copy of order with penal notice and appointment time served on JD.
(c)
Initial hearing (call-over): standard directions for disclosure of documents etc. and date
fixed for examination.
(d)
Page 4 of 12
4.
(a)
(b)
Scope
O.48 r.1(1) (corporate), cross examination of the most severe kind !Republic of
Costa Rica v Stromsbrg 1880 CA.
(i)
(ii)
(iii)
JC may not examine JD simply to get material for future litigation against
others or against JD in an unrelated matter !Bloomsbury.
(iv)
Books relating to the above and belonging to the JD only may be pursued for
discovery Chung Fai Engineering (a firm) v Maxwell Engineering 2001.
5.
(a)
Imprisonment
(ii)
E.
"
(b)
Cliff Lui
Under O.49B r.1B(1), the court may order the imprisonment of the debtor for
3 months if satisfied either that the JD (not company officers under O.48
!Hua Chiao Commercial Bank v Alpha Plus International Development
2001):
Had disposed of its assets with a view to avoid the judgment debt; or
Payment by Instalments
(i)
Under O.49B r.1B(2), the court may order the JD to satisfy judgment by
instalments if it can.
(ii)
Writs of Execution
Writs of Fieri Facias; writs for possession; writs of delivery and sequestration.
1.
(a)
Writ requires bailiff to seize goods, chattels and other property sufficient to
satisfy judgment together with interest and execution costs. Property liable to
be attached and sold include (s.21D(1), HCO):
Page 5 of 12
(b)
(a)
(iii)
If debtor fails to make payment, goods will be sold by public auction. Any
surplus will go back to the JD.
Procedure
(i)
(ii)
Filing fee
2.
Land, goods, money, cheques, bills of exchange, notes, shares in nonprivate companies, all property
(i)
(d)
(ii)
(iii)
(c)
Cliff Lui
(ii)
(iii)
(iv)
(b)
Another 4 days had elapsed from that time, i.e. a total of 7 days
minimum.
Execution
(i)
(ii)
3.
Cliff Lui
Bailiff executes and has duty to deliver complete and vacant possession to
JC.
For abandoned premises, bailiff may execute on first visit provided that JC
had signed pro-forma indemnity undertaking !Law Soc Circular 06-599
(PA).
4.
(a)
(b)
(c)
Procedure
(i)
(ii)
(iii)
(iv)
(ii)
Mens Rea
(i)
Not necessary to prove intention to disobey order Kao Lee & Yip v Donald
Koo 2006 CA. P only needs to prove beyond reasonable doubt that:
(ii)
(d)
Bona fides in reliance on legal advice not defence!!Kao, Lee & Yip.
Page 7 of 12
(ii)
Aiding and abetting contempt possible but more difficult to prove !Nicolas
Pappadis v Chan Shing Sheung 1989; Excel Noble Development v Nam Wah
Group 2001.
(iii)
Officers not absolutely liable, and are only liable for acts that they could
reasonably take or prevent Excel Noble.
(iv)
(e)
Cliff Lui
Officer to be fully aware of terms of order with which co. must comply;
Punishment
(ii)
Personal service on JD. Not strict, service may still be effective if the
judgment was one that restrained the JD from doing something and the JD
was present when the order was made; or if he was notified of the terms of
the order by telephone, telegram, etc.: O.45 r.7(6), If other service is made,
then the JD should also be notified of the consequences of failing to comply
!Citybase Property Management v Kam 2003.
Court can dispense with personal service !O.45 r.7(7), as well as the
penal notice if there were some factors that indicated that the
contemptor had knowledge !Excel Noble.
No evidence that director was unaware of the documents which were
placed in his letterbox.
(f)
Apply to judge by motion for leave: O.45 r.5(1)(b) and O.46 r.5(1).
(ii)
Notice of motion must state the grounds of the application together with a
copy of the supporting affidavit: O.46 r.5(2).
(iii)
(iv)
(v)
(vi)
Page 8 of 12
(g)
5.
Cliff Lui
Procedure, Committal:
(i)
(ii)
(iii)
Leave granted, order for committal made by motion to a judge. The notice
of motion, accompanied by the earlier statement and affidavit in support
must be served personally on the JD but such requirement may be dispensed
with: O.52 r.3.
(iv)
6.
(a)
Court orders a third person garnishee to pay the JC using a debt that it owes to the JD.
E.g. bank deposits (subject to set-off) are actually debts owed to the depositor.
(b)
(ii)
(iii)
(c)
(d)
(e)
Debt does not include any transfer of monies that justice demands to
be returned !Chung Fai Engineering v Maxwell 2003.
Bank debts
(i)
(ii)
Foreign Debts
(i)
Foreign debts are usually not made the subject of a garnishee order.
(ii)
That is because the foreign garnishee might not be absolved of its liability
towards the foreign plaintiff where global organisations are concerned.
(iii)
So a court might still make the order if it can be shown that the garnishee
would be discharged of its liability to the JD. However, there is yet to be
such a case !Societ Eram Shipping v Campagnie Intenatioanle de
Navigation 2003 HL.
(ii)
(iii)
Overdrafts subject to set-off and money paid in after order, per above
Page 9 of 12
(f)
Cliff Lui
Procedure
(i)
File affidavit together with draft order at the Registry. Place with a
Master who will determine whether he will grant a garnishee order nisi
and specify a time and place for further consideration of the matter and
attaching the debt specified in the order.
(ii)
Inter partes hearing for court to see whether to make order absolute.
(iii)
JC gets equitable charge over the attached property over third parties.
7.
Cliff Lui
(a)
The court can put a charge on specified property to enforce the payment of money
under a judgment: s.20(1), HCO; s.52A, DCO.
(b)
(c)
(i)
(ii)
Application Procedure
(i)
(d)
(e)
(ii)
Master will grant order nisi if satisfied that there is sufficient cause for the
order. Time and date will be specified for the inter partes hearing and a
charge will be imposed on the specified property until that date.
(iii)
Service
(i)
(ii)
(iii)
(ii)
(iii)
(iv)
Secures judgment debt and interest payable !Ezekiel v Orakpo 1977 CA.
(v)
~ equitable charge so JC may enforce the order by applying to the court for
sale of the charged property or by appointing a receiver.
(vi)
Page 11 of 12
(f)
A stop notice can be issued under O.50 r.11. This requires 14 days prior
notice to the JC that the charged shares are to be dealt with. In the
meantime, the JC can apply for a stop order under O.50 r.15 to prohibit
any transfer.
Enforcement by Sale
(i)
8.
Cliff Lui
The JC may apply for an order for the sale of the charged property by
separate proceedings under O.88.
(a)
This is an equitable remedy that is useful when a body has substantial future income
which needs to be properly managed by a receiver.
(b)
Very costly!
(c)
Law
(i)
(ii)
A receiver may be appointed for a debt which is due to the JD in the future
!Soinco SACI v Novokuznetsk Aluminium Plant 1997; Karaha Bodas
Company 2004.
(d)
(e)
The Receiver
(i)
(ii)
(iii)
Receiver must submit accounts to any parties at any time as the court directs:
O.30 r.5(1).
~~~
Page 12 of 12