DINERS CLUB INTERNATIONAL (HONG KONG) LTD v. WILSON CHEUNG WING YIM AND ANOTHER

DCCJ005760/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

 

ACTION NO. 5760 OF 1980

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BETWEEN	DINERS CLUB INTERNATIONAL (HONG KONG) LIMITED	Plaintiff
	and
	WILSON CHEUNG WING YIM	1st Defendant
	SEAWISE AGENCY LIMITED	2nd Defendant

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Coram: H.H. Judge Jones

Date of Judgment: 2 December 1981

 

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DECISION

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          On the 21st January 1981 the plaintiff's application for summary judgment under Rule 27(1)(b) of the District Court Civil Procedure (General) Rules that the defendant had failed to disclose any reasonable ground of defence was dismissed. The plaintiff seeks a review of that decision under Section 53(1) of the District Court Ordinance, and for an order for judgment under Rule 27(2) of the District Court Civil Procedure (General) Rules.

          The plaintiff's claim is for the sum of $8,399.69 in respect of credit card facilities granted to the first defendant for which the first and second defendants are jointly and severally liable. By his defence the first defendant denies liability on the grounds that the undertaking to pay was only given by the second defendant. No defence has been filed by the second defendant. Rule 27(1) provides:-

          Where -

          (b) the defendant, in the opinion of the Court, fails, by himself or by his Counsel, solicitor or other representative to disclose any reasonable ground of defence; .....

          the Court may pronounce such judgment against him and in such terms as it shall think fit ..............

          (2) Whenever, in the opinion of the Court, the issues are sufficiently established for the immediate determination of the cause, the Court may pronounce judgment forthwith in such terms as it shall think fit.

          Mr. Cust who appeared on behalf of the plaintiff concedes that a reasonable ground of defence has been disclosed in the pleading. However, he argues that by virtue of Rule 51 he is entitled to adduce evidence in support of his application. In so doing he draws a distinction between the provisions of order 18 rule 19(2) of the Rules of the Supreme Court where no evidence is admissible on an application to strike out a pleading when no reasonable cause of defence is shown and the District Court rules which make no reference to striking out a pleading. Nevertheless that is the practical effect of the application for if the defence does not disclose any reasonable ground of defence it will be struck out. Judgment cannot be entered otherwise.

          Although Rule 27 does not include the word pleading a defence is normally filed when a defendant disputes liability. Rule 9 of the District Court rules invokes the application of the Rules of the Supreme Court to the District Court subject to the provisions of the District Court Ordinance and rules. In my opinion the provisions of Rule 27 are akin to order 18 rule 19. The application of order 18 rule 19 is not excluded by the schedule to the District Court rules.

          Accordingly I am satisfied that the plaintiff is not entitled to adduce evidence in support of the application. The application is an attempt to introduce an order 14 procedure into the District Court where it does not apply. It is significant that the recent report of the Working Party on the District Court Rules recommended that an order 14 procedure should not be introduced into the District Court. If the plaintiff contends that there is no defence the action should have been instituted in the High Court where advantage could be taken of Order 14 proceedings. See 14/7/6 page 157 Volume 1 Supreme Court Practice 1979.

          Both summonses are dismissed with costs to the first defendant on the Upper Scale. Certified fit for Counsel.

 

 

	Sd.
	( B.L. Jones )
	District Judge

 

Representation: