Seminar One Overview and Pre-commencement Considerations

7/24/2019 Seminar One Overview and Pre-commencement Considerations

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3LLB 20 15 -2016

CIVIL PROCEDURE (CODE 3097)

Seminar One: Oerie! an" Pre-C#mmen$emen%

C#n&i"era%i#n&

Da%e: 20 'anar 2016Le$%rer: Eri$ *+ C,en

OB'EC*IVES

To provide students with an overview of civil procedure and civillitigation practice, and of the matters to be considered before litigationis commenced.

To help students acquire an overall picture of the civil litigation process

PREP.R.*IO/ BEORE CL.SS

Read the Course Outlines and this Seminar Outline.

Consider the Exercises in this Seminar Outline and attempt to answerthe questions raised.

OU*LI/E

. C#r&e Oerie! an" Ee$%a%i#n

See the Course Outlines

B Pr#4em S#in .r#a$,

1 , i& %,e &i %# e r#4em reean% an" im#r%an%8

roblem solving is at the centre of what law!ers do.

Competence for law!ers is the abilit! to solve legal problemssatisfactoril! for clients in a lawful and ethical wa!.

2 ,a% "# # nee"8

"n order to solve a variet! of problems, need to acquire and develop#

1


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n#!e"e$legal and non%legal& substantive, transactional andprocedural'

Si&$core and specialised'& and

.%%i%"e&$professionalism, dedication, self%motivation'.

3 *!# 4a&i$ %e& # ea r#4em in:

$(' la!ing out con)ict and $*' bloc+ing con)ict

; Pain O% C#n


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> S%ae 1: Pr#4em an" #a "e?ni%i#n

7hat are the client8s goals ob9ectives problems:

7hat does the client want need:

7hat are the obstacles con)ict problems

-OTE# client8s goals ob9ectives problems ma! change overtime.

9 S%ae 2: a$% ine&%ia%i#n

;ave to get some facts 0rst to facilitate identi0cation of legalissues.

>

Evaluating options# quantif! outcomes, evaluate client8s ris+pro0le>>

Other $non%law' factors should not be overloo+ed# includingpeace of mind, cost in time and mone! needed>

Choosing the best option# $(' client%centred# explain ris+s andbene0ts of various options and let the client decide& $*' law!er%centred# recommend an option for client to adopt

12 S%ae 5: Pannin an" imemen%a%i#n

Some planning normall! done at Stage 5 to facilitate decision%ma+ing


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13 C#n&i"er 4e#re $a&& ,#! # ma a %,i& r#$e&&m#"e # ea r#4em in %# ,an"e %,e ##!inin&%r$%i#n

Eer$i&e 1

?ou receive instructions b! fax from @oe Chan, the managing director ofAing Aong To!s


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advance a claim or defence in a cost$eective manner, appropriate tothe needs of their clients and the case at hand.%

% per the ;onourable


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under%resourced litigant. "t is too uncertain# the diIcult! offorecasting what litigation will cost and how long it will last inducesthe fear of the un+nown& and it is incomprehensible to man!litigants. bove all it is too fragmented in the wa! it is organisedsince there is no%one with clear overall responsibilit! for the

administration of civil 9ustice& and too adversarial as cases are runb! the parties, not b! the courts and the rules of court, all toooften, are ignored b! the parties and not enforced b! the court.F

"n 2ebruar! *DDD, the Chief @ustice set up a 7or+ing art! on Civil@ustice Reform to review the civil rules and procedures and torecommend changes with a view to ensuring and improving accessto 9ustice at reasonable costs and speed. The 7or+ing art!published its "nterim Report and Consultative aper in -ovember*DD( and its 2inal Report subsequentl! in


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Students can access the new CJR legislation and rules from the 'o(ernment)s

*ilingual +aws ,nformation S%stem -htt!//www.legislation.go(.h/eng/home.htm0or from +,, -htt!//www.hlii.org.h/0 or the Ci(il Justice Reform website

-htt!//www.ci(ilustice.go(.h/ clic 'a6etted 7rimar% +egislation8 and 'a6etted

Subsidiar% +egislation8 icons res!ecti(el%0.

part from the speci0c changes made to various procedural rules$to be discussed in future seminars', Order ( and Order ( areintroduced to the R;C and R=C, setting out the Pnderl!ingOb9ectives and the Court8s Case


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"f the claim calls into question the title to an interest in land, =Conl! has 9urisdiction if the rateable value or the annual value$whichever is the less' does not exceed B*5D,DDD $s 3H =CO'

-on%exclusive equit! 9urisdiction5where the amount or value of the

sub9ect matter does not exceed B(m $for the part not relating toland' or B3m $for the part relating to land' $see s 3M$*' =CO'

"n determining, for the purposes of ss 3*, 33, 3H and 3M, whetherthe claim amount exceeds B(m, an! discretionar! interest thatma! be or is ordered under s 5G is excluded $s 5G$M' =CO'

aragraph 5 of ractice =irection *M requires that# ll writs andoriginating summonses should contain a plea that the relief soughtdo fall within the 9urisdiction of the =istrict Court, specif!ing whichsection$s' of sections 3* to 3G of the =istrict Court Ordinance do

appl! to the case.


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2.' C"oice of Court

"f a particular courttribunal has exclusive 9urisdiction Q no choice

"f more than one court have 9urisdiction $e.g. both the =C and C2"'Q in general choose the lower court, which is normall! cheaper,unless there is a good reason to choose the higher court $e.g. b!reason of the importance or complexit! of the issues involved'.

2.( Transfer of Proceedin$s between C and C!I

The =C shall transfer the action to the C2" if the claim $not being acounterclaim' is outside its 9urisdiction. "t ma! however stri+e outsuch action on the defendant8s application if it appears that theplainti1 +new or ought to have +nown that the =C has no

9urisdiction $s 5($(' and $*' =CO'

Even if the claim is within the =C8s 9urisdiction, the =C ma!transfer proceedings to the C2" if there is good reason $eg b!reason of the importance or complexit! of the issues involved' $s5* =CO'

The C2" is required to transfer an! claim $other than acounterclaim' which appears li+el! to be within the =C8s9urisdiction unless it is of the opinion that, b! reason of theimportance or complexit! of the issues involved or for other

reason, the action ought to remain in the C2" $s 53 =CO'

"f the parties consent, the C2" ma! transfer to the =C an! actionwhose monetar! limit exceeds the =C8s 9urisdiction $s 55 =CO'

3Pre-$#mmen$emen% C#n&i"era%i#n&

3.1 )"et"er *ou s"ould act for client in t"e matter+

.n $#n


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has insuIcient time to devote to the matter, or insuIcient experienceor s+ill to deal with the instructions. This however will not prevent asolicitor from acting if he is able to do so competentl! b! instructingsuitable counsel, but he must still be able to exercise suIcient careand control in the matter $see rinciple 6.D3 Commentaries * and 3 of

the ;ong Aong Solicitors8 uide to rofessional Conduct'

D#e& %,e ern iin in&%r$%i#n& %# # ,ae %,ea%,#ri% %# rere&en% %,e a$%a $ien%8

-eed to distinguish the client in the legal sense and the clientF inbusiness sense $or the person who gives !ou instructions'.

"n particular, if the client is a corporation, the legal authorit! toinstitute legal proceedings normall! rests on the board of directors$sometimes not even the ma9orit! shareholders' so that one should

obtain a written directorsJ resolution before commencing an!litigation. n! proceedings instituted without proper authorisationor subsequent rati0cation ma! be sta!ed b! the court with costs ofboth parties to be borne personall! b! the plainti18s solicitors $eg,on$e v To*nbeeK(G(DL ( A *(6 $C' and anis" MercantileCo -td and &t"ers v eaumont and /not"erK(G6(L ( ll ERG*6 $C''. "n the case of Mercur* 0-ondon -td and Mercur*International 0#on$ on$ -td v Mercur* S"ippin$ andTradin$ -td ;CC4 M6 of (GGD, (* pril (GG(, the solicitorscommenced legal action for the plainti1 corporations on theauthorisation of the ma9orit! shareholder without proper board

resolution, odfre! @ granted a sta! of the proceedings upon theapplication of the defendant with costs to be borne b! the solicitorson an indemnit! basis'.

7hilst a partner has an implied authorit! in law to commenceproceedings for the partnership 0rm $e.g.Court v erlinK(GML * 3GH', in case the matter involves partnership disputes or that!ou have reason to suspect that the other partner$s' ma! notapprove the litigation, it is advisable to obtain proper writtenauthorisation from the partners before commencing litigation.

I& $ien% en%i%e" %# ea ai"8

?ou have a positive professional dut! to advise client to see+ legalaid if he is eligible $see rinciples 5.D( and 6.*( of the ;ong AongSolicitors8 uide to rofessional Conduct'

vailabilit! and Scope

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vailable to an! natural person in ;ong Aong, resident or non%resident.

The Ordinar! Scheme covers most civil proceedings but excludeproceedings such as defamation proceedings, relator actions,

election petitions $unless human rights issue is involved', disputesbetween shareholders or business partners, claims for the recover!of a loan made in the ordinar! course of the applicant8s business,and proceedings where the onl! question before the court is as tothe time and mode of pa!ment for debt and costs $see Schedule *of the 4egal id Ordinance $Cap G(''.

The Supplementar! Scheme is more limited in scope and used tocover onl! $(' emplo!ees8 compensation claims& $*' personalin9uries or death claims, and $3' medical, dental or legalprofessional negligence claims, with an amount exceeding $or li+el!

to exceed' BHD,DDD.

7ith e1ect from 3D -ovember *D(*, the Supplementar! 4egal idScheme has been expanded to cover the following new t!pes ofcases where the claim is li+el! to exceed BHD,DDD $see amendedSchedule 3 of the 4O'#

professional negligence claims against certi0ed publicaccountants $practising', registered architects, registeredprofessional engineers, registered professional surve!ors,registered professional planners, authori/ed land surve!ors,

registered landscape architects and estate agents&

negligence claims against insurers or their intermediaries inrespect of the ta+ing out of the personal insurance products& and

monetar! claims against vendors in the sale of completed oruncompleted 0rst%hand residential properties.

"t also covers representation for emplo!ees in appeals againstawards made b! the 4abour Tribunal irrespective of the amount indispute.

-eed to satisf! the =irector of 4egal id as to the 9usti0cation forlegal action $the merits test' and 0nancial eligibilit! $the meanstest'.


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The 0nancial resources of an applicant8s spouse $unless the! areseparated or have opposing interests in the proceedings' will betreated as the applicant8s 0nancial resources.

2ollowing the recent review and in recognition of the fact thatelderl! applicants generall! lac+s earning power and are morereluctant to deplo! their capital for litigation, a new rule was addedon 3D


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ided persons with 0nancial resources not exceeding (*.6U of the0nancial eligibilit! limit are exempted from ma+ing a contribution."f the aided person is receiving Comprehensive Social Securit!ssistance $CSS', he is generall! presumed to have 0nancialresources not exceeding the said (*.6U and so is not required to

pa! an! contribution. ided persons whose 0nancial resourcesexceed (*.6U of the 0nancial eligibilit! limit are required tocontribute an amount equivalent to *U to *6U of their 0nancialresources according to the 0nancial resources bandwidth table inSchedule 3 of the 4egal id $ssessment of Resources andContributions' Regulations. ;ence, the maximum contributionunder the Ordinar! Scheme is *6U of B*GD,3D i.e. BM*,6G6. Thecontribution will be used to set o1 an! unrecoverable legal costsincurred b! the =4.

Pnder the Supplementar! Scheme, the contribution required

depends on the t!pe of proceedings. T!pe ( proceedings cover theemplo!ees8 compensation claims and death and personal in9uriesclaims $those set out in paragraphs (%3 and of art ( of Schedule3 to the 4egal id Ordinance', and T!pe * proceedings cover thevarious professional negligence claims and claims against vendorsin 0rst%hand sale properties $those set out in paragraphs 5%M of art( of Schedule 3'. 2or T!pe ( proceedings, all aided persons arerequired to pa! an interim contribution equivalent to the maximumcontribution pa!able under the Ordinar! Scheme $plus anapplication fee of B(,DDD' upon acceptance of legal aid. 2or T!pe *proceedings, the interim contribution is either (DU of the assessed

0nancial resources of the aided person or the maximumcontribution pa!able under the Ordinar! Scheme, whichever ishigher. "f the aided person loses the case, this interim pa!ment isthe maximum contribution that he has to pa! for the legal costsincurred b! the =irector of 4egal id. "f he succeeds in the case,the aided person needs to pa! for the legal costs incurred b! the=irector of 4egal id on his behalf but which cannot be recoveredfrom his opponent. "n addition, if he recovers or preserves an!mone! or propert!, he needs to contribute (DU $reduced to HU ifthe case is settled before counsel is briefed for the trial' of therecoveredpreserved value for T!pe ( proceedings and *DU

$reduced to (6U if the case is settled before counsel is briefed forthe trial' for T!pe *. The (DU*DU $or HU(6U, as the case ma!be' contribution and unrecoverable legal costs will be deducted$a' 0rst from the interim contribution and application fee alread!paid and then $b' the mone! or propert! recovered or preserved.G

8 The present figure is $72,595 (25% of $290,380).

9 See LAO, ss 18 and 32.

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See the 2inancial "nformation Sheet accessible at the 4egal id=epartment8s website for an updated and convenient summar! ofthe contribution 0gures$http#www.lad.gov.h+engdocumentswnew2in"nfoSheetNe.pdf'

Costs 4iabilit!

"f an aided plainti1applicant loses the case, an! costs awarded tothe unaided defendantrespondent will generall! be borne b! the=4.

"f an aided defendantrespondent loses the case, neither him northe =4 will generall! be liable for the costs of the unaidedplainti1applicant $see s (HC of 4O and Common -uc5Investment -td v irector of -e$al /id K*DD*L 3 ;A4R= (

$C2''.

;ence, one main advantage of getting legal aid is that even if oneloses in the proceedings, one would not generall! be personall!liable for the other part!8s costs.

-ote however that if one obtains legal aid while the proceedingsare ongoing, the aided person remains personall! liable for thecosts awarded to the opponent arising before the grant of legal aid$s (HC$*''. ;ence, if one is eligible, one should generall! obtainlegal aid before the commencement of the legal proceedings

$unless, for example, there is an urgenc! to start legal action'.

3.2S"ould t"e matter be resolved t"rou$" liti$ation+

"s the disputeproblem a legal one which can be resolved in court:

"s the other part! worth suing: rinciple 5.D( Commentar! 6 of the;ong Aong Solicitors8 uide to rofessional Conduct Volume (provides that 4In all matters a solicitor must consider wit""is client w"et"er t"e li5el* outcome will 8ustif* t"ee9pense or ris5 involved.6

Can !our client a1ord the trouble and expense of litigation:

rospect of settlement or resolution without intervention of law!ersor court proceedings

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http://www.lad.gov.hk/eng/documents/wnew/FinInfoSheet_e.pdfhttp://www.lad.gov.hk/eng/documents/wnew/FinInfoSheet_e.pdf


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Should the matter be resolved through arbitration or mediation:Pnder the Civil @ustice Reform, greater use of =R $primaril!mediation' is anticipated and unreasonable refusal b! a part! toattempt settlement through =R ma! result in costs penalt!.

3.3 /n* ris5 of soon e9piration of t"e limitation period+

The general periods of limitation of action are laid down in the4imitation Ordinance $Cap 35M'#%

$a' Contract under seal %% (* !ears from date of accrual ofcause of action. $i.e. upon breach' $s 5$3''

$b' Simple contract %% H !ears from date of accrual of cause ofaction $i.e. upon breach' $s 5$(''

$c' tort $apart from personal in9ur! and death' %% H !earsfrom date of accrual of cause of action $i.e. upondamage being sustained as a result of the tortious act'$s 5$(''

$d' recover! of land %% HD !ears for action b! governmentand (* !ears $-.. previousl! *D !ears' for action b!individual, calculated from the date of adversepossession(D$ss M, and (3'

$e' negligence action involving latent damage $apart from

personal in9ur! and death' %% the usual H%!ear period can beextended to 3 !ears from the date on which the plainti10rst had actual or constructive +nowledge required for

(D -.. 7hether the adverse possession provision under the 4imitation Ordinance isconsistent with the asic 4aw is not !et authoritativel! settled# see the obiter dicta in*ong +ong 3uddhist &ssociation v 1ccupiers &nother$;C


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bringing the action $s 3(', sub9ect to an overriding timelimit of (6 !ears from the date of the alleged negligent act$s 3*'

$f' personal in9ur! cases %% 3 !ears from date of accrual of

cause of action or from the date of the plainti18s actual orconstructive +nowledge $if later' of the in9ur! beingsigni0cant and attributable to the defendant8s actomissionas well as the identit! of the defendant $s *M', sub9ect tothe court8s discretion under s 3D to override this time limitb! balancing the respective pre9udices to the plainti1 andto the defendant having regard to all the circumstances ofthe case and in particular to those factors set out in s 3D$3'$e.g. reasons for the dela! and conducts of the parties'.The practice of the courts has been regularl! to exercisethe discretion in favour of the plainti1 in cases in which the

defendant cannot show that he has been pre9udiced b! thedela! $see *orton v -adlerK*DDHL PA;4 *Mper 4ord;o1man at W 55& for an illustration as to how the courtanal!sed the factors in exercising its discretion, see the9udgment of =eput! ;igh Court @udge Saunders in (hau(hui )ing 8inky v (athay )aci9c &irways /td, unreported,;C" *H(*DD3, (M @ul! *DDH and the udgment of Daster D


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rovided that#-

$i' "n case of an infant or person of unsound mind, the period oflimitation does not begin to run until that person has ceased to beunder the disabilit! or died $s **'.

$ii'7here an! action is based upon the fraud of the defendant, or

an! fact relevant to the plainti18s right of action has beendeliberatel! concealed from him b! the defendant or the action isfor relief from the consequences of a mista+e, the period oflimitation shall not begin to run until the plainti1 has discoveredthe fraud, concealment or mista+e or could with reasonablediligence have discovered it $s *H'.

$iii'"n actions where there has accrued a right of action to recover

land or an! right of a mortgagee of personal propert! to bring a

foreclosure action and the person in possession of the land orpersonal propert! ac+nowledges the title of the plainti1 or ma+espa!ment of the mortgage debt $principal or interest', the right ofaction shall be deemed to have accrued on the date ofac+nowledgment or pa!ment $s *3'. The ac+nowledgment mustbe in writing and signed b! the defendant or his agent and madeto the plainti1 or his agent $s *5'. The same principle applies inrespect of ac+nowledgment or part pa!ment of a debt $s *3$3''

There ma! be other shorter periods of limitation speci0ed underthe contract $in which case one needs to loo+ at the contract

documents' or prescribed under international conventions $e.g. inrespect of carriage b! air'.

3.% /n* need to ta5e ur$ent protective measures+

n! real ris+ that the other part! ma! ta+e steps to ma+e himself9udgment proof: "f so,


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interlocutor! in9unction application should be considered.

3.' /n* need to serve pre:action notice+

notice $letter' before action is not generall! required as a pre%

condition to the accrual of the cause of action, though failure to doso in some circumstances could a1ect the issue of costs $see O H*r M RSC'.

Some causes of action require service of notice as a preconditionto the accrual of liabilit!, for example#%


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reason given b! the agent ban+ for dishonouring the chequewill either be;Pa*ment Countermanded;$in which case thedispensation under s 6D$*'$c'$v' applies' or ;Refer torawer;$which has been interpreted b! the court to meanthat there are insuIcient funds in the drawer8s account so

that the dispensation under s 6D$*'$c'$iv' applies'. "t should,however, be noted that the Statement of Claim must eitherallege that due notice of dishonour has been given stating thenecessar! particulars or set out the facts relied on fordispensing with the notice of dishonour& otherwise there ma!be no cause of action against the drawer $see T"on$ o Sinev )il5insonK(GL ;AC 6H C'.

3.( o *ou need to obtain furt"er facts evidence ordocuments+

3.< o *ou need to en$a$e e9perts or counsel and if so atw"at sta$e+

3.= If proceedin$s are to be commenced w"ic" court "as8urisdiction over t"e matter+$see discussions at section *above'.

; Pr#$e"ra #! in a C#n%e&%e" .$%i#n C#mmen$e" 4 ri%

%.1 Issue of )rit 0& (

%.2 Service of )rit 0& 1> & 11 and s 3(' Companies&rdinance

%.3 /c5nowled$ment of Service 0& 12

%.% ?ispute over 8urisdiction 0& 12 r =@

%.' A9c"an$e of Pleadin$s 0& 1=

Statement of Claim =efence Kand CounterclaimL

KRepl!L Kand =efence to CounterclaimL Close of pleadings or further pleadings with leave

%.( Mutual iscover* and Inspection of ocuments 0& 2%

%.< Case Mana$ement irections 0& 2'12

12 Un de rthe newCivi lJus ticeReform rul es,O 25issubs tant ially amended wi th the introduc tion ofCa seManage ment Summo ns andC onferenc eproc edur estorepl ace the Summons for Direct ion sproc edur es.

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2or cases other than personal in9ur! actions, parties have to 0lecase management questionnaires and the Court will give casemanagement directions for the further conduct of the case eitherb! paper disposal or at the hearing of the case management

summons& for personal in9ur! actions, automatic directions under O *6 r and

detailed procedures set out in = (.( will appl!.

%.= A9c"an$e of )itness Statements 0& 3= r 2/ ?and A9pertReports 0& 3= Part IB@

%. ?&t"er Interlocutor* /pplications@

%.1> Case Mana$ement Conference0s

%.11 Settin$ down t"e case for trial and D9in$ trial date 0& 3%

%.12 Pre:trial Review

%.13 Trial 0& 3'

%.1% Jud$ment 0& %2

%.1' Anforcement 0& %':'2

%.1( /ppeals 0& '=:' R#C and & '= RC

5 Oerie! # Pre-*ria Pr#$e"re&

'.1 T"ree Main !unctions

2or disposing of action without trial2or protecting or preserving a part!8s rights and interest in theinterim

2or preparation for trial -.. The functions ma! overlap and a pre%trial procedure ma! be

used for more than one ob9ective

'.2 isposin$ of action wit"out trial

=efault 9udgment Summar! @udgment =iscontinuance of action and withdrawal of claim or defence

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Sanctioned O1er and Sanctioned a!ment into court 7ithout pre9udice settlement negotiation Stri+ing out claim or defence =ismissal for want of prosecution

'.3 Protectin$ or preservin$ a part*Es ri$"ts and interest in t"einterim

"nterlocutor! in9unction $pending claim for 0nal in9unction'


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.en"i

Reean% Pr#i&i#n& # %,e Di&%ri$% C#r% Or"inan$e #n Cii'ri&"i$%i#n

'ri&"i$%i#n-=enera

S 32 $(' The Court has 9urisdiction to hear and determine an! actionfounded on contract, quasi%contract or tort where the amount of theplainti1Js claim does not exceed B(,DDD,DDD.$*' "n this section and in section 35, the amount of the plainti1Js claimmeans the amount the plainti1 claims after ta+ing into account%$a' an! set%o1 or an! debt or demand the defendant claims or ma!recover from the plainti1&$b' an! compensation, as de0ned in section 3 of the Emplo!eesJCompensation Ordinance $Cap **', paid to the plainti1 under that

Ordinance& and$c' an! contributor! negligence,that the plainti1 admits in his statement of claim.$3' The Court has 9urisdiction to hear and determine an! proceedingsb! wa! of interpleader in which the amount or value of the matter indispute does not exceed B(,DDD,DDD.

+#ne re$#era4e 4 ena$%men%

S33$(' The Court has 9urisdiction to hear and determine an! action forthe recover! of an! penalt!, expenses, contribution or other li+e

demand which is recoverable b! virtue of an! enactment for the timebeing in force and for the recover! of an! sum which is declared b! an!enactment to be recoverable as a civil debt if%$a' it is not expressl! provided b! that or an! other enactment that thedemand shall be recoverable onl! in some other court& and$b' the amount claimed in the action does not exceed B(,DDD,DDD.

$*' 2or the purposes of this section, Ypenalt!Y $' does not include a0ne to which an! person is liable on conviction on indictment or onsummar! conviction.

.4an"#nmen% # ar% # $aim %# ie C#r% ri&"i$%i#n

S 3; $(' The Court has 9urisdiction to hear and determine an actionthat is in excess of the CourtJs monetar! 9urisdiction limit on theplainti1 abandoning the amount of the plainti1Js claim in excess andthe action is one in which the Court otherwise has 9urisdiction.$*' The Court cannot award to the plainti1 in an action under thissection an amount exceeding the CourtJs monetar! 9urisdiction limit forthe action.

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$3' The 9udgment of the Court in an action limited under this section isin full discharge of all demands in the cause of action.

'ri&"i$%i#n #r re$#er # an"

S 35The Court has 9urisdiction to hear and determine an! action forthe recover! of land, where the annual rent or the rateable value of theland, determined in accordance with the Rating Ordinance $Cap ((H',or the annual value of the land, whichever is the least, does not exceedB*5D,DDD.

'ri&"i$%i#n !,ere %i%e in e&%i#n

S 36The Court has 9urisdiction to hear and determine an! action whichwould otherwise be within the 9urisdiction of the Court and in which thetitle to an interest in land comes into question if%

$a' for an easement or licence, the rateable value, determined inaccordance with the Rating Ordinance $Cap ((H' or the annual value,whichever is the less, of the land, over which the easement or licenceis claimed, does not exceed B*5D,DDD& or$b' for an! other case, the rateable value, determined in accordancewith the Rating Ordinance $Cap ((H' or the annual value, whichever isthe less, of the land, does not exceed B*5D,DDD.

Ei% ri&"i$%i#n

S 37$(' Sub9ect to the maximum limits in amount or value set out in

subsection $*', the Court has the 9urisdiction of the Court of 2irst"nstance to hear and determine the following proceedings%$a' proceedings relating to or for the administration of the estate of adeceased person&$b' proceedings for the execution of a trust or for the declaration that atrust subsists or proceedings under section 3 of the Variation of TrustsOrdinance $Cap *63'&$c' proceedings for the foreclosure or redemption of a mortgage or forenforcing a charge or lien&$d' proceedings for the speci0c performance, or for the recti0cation,rescission or deliver! up or cancellation of an agreement for the sale,

purchase or lease of propert!&$e' proceedings for the maintenance or advancement of an infant&$f' proceedings for the dissolution or winding up of a partnership,whether or not the existence of the partnership is in dispute&$g' proceedings for relief against fraud or mista+e.$*' The maximum limits in amount or value referred to in subsection$(' for%

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$a' in the case of subsection $('$a', an estate of a deceased person&$b' in the case of subsection $('$b', an estate or fund sub9ect or allegedto be sub9ect to the trust&$c' in the case of subsection $('$c', the amount owing under themortgage, charge or lien&

$d' in the case of subsection $('$d', for an agreement for sale orpurchase, the purchase mone! or, for an agreement for lease, thevalue of the propert!&$e' in the case of subsection $('$e', the propert! of the infant&$f' in the case of subsection $('$f', the assets of the partnership&$g' in the case of subsection $('$g', the damage sustained or the estateor fund for which relief is sought,are%$i' B(,DDD,DDD, where the proceedings do not involve or relate to land&$ii' B(,DDD,DDD, where the proceedings partl! involve or partl! relate toland and the part that does not so involve or does not so relate

exceeds B(,DDD,DDD in amount or value&$iii' B3,DDD,DDD, where the proceedings wholl! involve or wholl! relateto land&$iv' B3,DDD,DDD, where the proceedings partl! involve or partl! relateto land and the part that does not so involve or does not so relate doesnot exceed B(,DDD,DDD in amount or value.$3' 9udge has in proceedings authori/ed b! this section in addition tohis other powers and authorit! the powers and authorities of a 9udge ofthe Court of 2irst "nstance acting in the exercise of the equitable9urisdiction of the Court of 2irst "nstance.$5' -othing in this section gives 9urisdiction to the Court in proceedings

for the recover! of land or relating to the title to land, where theannual rent or the rateable value of the land, determined inaccordance with the Rating Ordinance $Cap ((H', or the annual valueof the land, whichever is the least, exceeds B*5D,DDD.

'ri&"i$%i#n n"er %,e +arrie" Pern& S%a%& Or"inan$e

S 3>The Court has the 9urisdiction and powers of the Court of 2irst"nstance conferred b! section H of the


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S ;1 $(' The Court shall, either of its own motion or on the applicationof an! part!, order that an action or proceeding be transferred to theCourt of 2irst "nstance where an action or proceeding commenced inthe Court, not being a counterclaim, is outside the 9urisdiction of the

Court but is within the 9urisdiction of the Court of 2irst "nstance.$*' The Court ma!, if it thin+s 0t, instead of ordering that the action orproceeding be transferred, order that it be struc+ out where, on theapplication of a defendant, it appears to the Court that the plainti1 or,if more than one, one of the plainti1s +new or ought to have +nownthat the Court had no 9urisdiction.$3' "f a defendant in an action or proceeding within the 9urisdiction ofthe Court ma+es a counterclaim which is not within the 9urisdiction ofthe Court but within the 9urisdiction of the Court of 2irst "nstance, theCourt ma!, either of its own motion or on the application of an! part!,order%

$a' that the whole proceedings be transferred to the Court of 2irst"nstance& or$b' that the proceedings on the counterclaim be transferred to theCourt of 2irst "nstance& and the proceedings on the plainti1Js claim,except for a defence of set%o1 as to the whole or a part of the sub9ectmatter of the counterclaim, be heard and determined b! the Court& or$c' where the Court considers the whole proceedings should be heardand determined in the Court, that the matter be reported to the Courtof 2irst "nstance or a 9udge thereof.$5' On the receipt of a report mentioned in subsection $3'$c', the Courtof 2irst "nstance or a 9udge thereof ma!, as it or he thin+s 0t, order

either%$a' that the whole proceedings be transferred to the Court of 2irst"nstance& or$b' that the whole proceedings be heard and determined in the Court&or$c' that the proceedings on the counterclaim be transferred to theCourt of 2irst "nstance& and the proceedings on the plainti1Js claim,except for a defence of set%o1 as to the whole or a part of the sub9ectmatter of the counterclaim, be heard and determined b! the Court.$6' 7here an order is made under subsection $3'$b' or subsection $5'$c' and 9udgment on the claim is given for the plainti1, execution

thereon shall, unless the Court of 2irst "nstance or a 9udge thereof atan! time otherwise orders, be sta!ed until the proceedings transferredto the Court of 2irst "nstance have been concluded.$H' "f no report is made under subsection $3'$c', or if on an! such reportit is ordered that the whole proceedings be heard and determined inthe Court, the Court shall have 9urisdiction to hear and determine thewhole proceedings notwithstanding an! enactment to the contrar!.

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*ran&er # r#$ee"in& %# %,e C#r% # ir&% In&%an$e #r %,eLan"& *ri4na

S ;2The Court ma!, either of its own motion or on the application ofan! part!, order at an! stage the transfer to the Court of 2irst "nstance

or the 4ands Tribunal of all or part of an! action or proceedings beforeit which are within the 9urisdiction of the Court of 2irst "nstance or the4ands Tribunal, as the case ma! be.

*ran&er %# %,e C#r% r#m %,e C#r% # ir&% In&%an$e #r#$ee"in& !i%,in %,e ri&"i$%i#n # %,e C#r%

S ;3 $(' The Court of 2irst "nstance ma!, either of its own motion or onthe application of an! part!, order the transfer to the Court of all orpart of an action or proceeding, other than a counterclaim, whichappears to the Court of 2irst "nstance li+el! to be within the 9urisdiction

of the Court.$*' n order ma! be made under this section at an! stage of theproceedings of the motion of the Court of 2irst "nstance itself or on theapplication of an! part!.$3' The Court of 2irst "nstance is required to ma+e an order under thissection unless it is of the opinion that, b! reason of the importance orcomplexit! of an! issue arising in the action or proceeding, or for an!other reason, the action or proceeding ought to remain in the Court of2irst "nstance.

*ran&er %# %,e C#r% r#m %,e C#r% # ir&% In&%an$e !,ere

%,e ar%ie& $#n&en%

S ;; $(' The Court of 2irst "nstance ma!, if the parties consent, orderthe transfer to the Court of all or part of an action or proceeding,including a counterclaim, which is outside the 9urisdiction of the Court,but would have been within its 9urisdiction except for the monetar!limits speci0ed in section 3*, 33, 36, 3H or 3M.$*' n order ma! be made under this section at an! stage of theproceedings.$3' Ppon a transfer under subsection $(', the Court shall have9urisdiction to hear and determine all or part of an action or

proceeding, including a counterclaim, so transferred notwithstandingan! enactment to the contrar!.

C#&%& in %ran&erre" $a&e& e%$

S ;;.$(' This section applies to an action or proceeding transferred%

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$a' from the Court of 2irst "nstance to the Court&$b' from the Court to the Court of 2irst "nstance& or$c' from a tribunal to the Court.$*' The court or tribunal that orders the transfer ma! ma+e an order forcosts prior to the transfer and of the transfer of proceedings.

$3' The costs of the whole proceedings both before and after thetransfer are in the discretion of the court to which the proceedings aretransferred sub9ect to an! order made b! the court or tribunal whichordered the transfer.$5' The court to which the proceedings are transferred has power toorder costs and order the scales on which the costs of the several partsof the proceedings are to be taxed. The costs of the whole proceedingsare to be taxed in the court to which the proceedings are transferred.$6' "n an action founded on contract, quasi%contract or tort, for theproceedings in the Court of 2irst "nstance before the transfer, the Courtma!, if satis0ed that there was suIcient reason for bringing the action

in the Court of 2irst "nstance and sub9ect to an! order of the Court of2irst "nstance, allow costs on the Court of 2irst "nstance scale.

Dii&i#n # $a&e& # a$%i#n

S ;5 -o cause of action shall be split or divided so as to be made theground of * or more di1erent actions for the purpose of bringing * ormore actions in the Court.

In%ere&% #n $aim& #r "e4% an" "amae&

S ;9 $(' The Court ma! include simple interest, at the rate the Courtthin+s 0t in a 9udgment for a debt or damages, on the debt or damagesor on a pa!ment made before 9udgment, for the period between thedate when the cause of action arose and%$a' for a sum paid before 9udgment, the date of the pa!ment& and$b' for the sum for which 9udgment is given, the date of the 9udgment.$*' Rules of court ma! provide for the rate of interest and the methodof calculation.$3' "n a 9udgment given for damages for personal in9uries or arising outof the death of a person which exceed B3DDDD, the Court has, unlessthe Court is satis0ed that there are special reasons to the contrar!, to

include simple interest at the rate the Court thin+s 0t on%$a' pa!ment made before 9udgment, for the period between the datewhen the cause of action arose and the date of the pa!ment& and$b' an! other sum for which 9udgment is given, for the period betweenthe date when the cause of action arose and the date of the 9udgment.$5' The defendant in proceedings for the recover! of a debt who pa!sthe whole debt to the plainti1 $otherwise than in pursuance of a9udgment in the proceedings' is liable to pa! the plainti1 interest at the

2:


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rate the Court thin+s 0t or rules of court provide on the debt for theperiod between the date when the cause of action arose and the dateof the pa!ment.$6' "nterest in respect of a debt shall not be awarded under this sectionfor a period during which, for whatever reason, interest on the debt

alread! runs.$H' "nterest under this section ma! be calculated at di1erent rates fordi1erent periods.$M' "n determining, for the purposes of section 3*, 33, 3H or 3M,whether an amount exceeds or is less than the amount speci0ed inthose sections, the Court shall not ta+e account of an! interest thatma! be ordered under this section or of an! order for interest madeunder this section.$' This section does not a1ect the damages recoverable for thedishonour of a bill of exchange.$G' "n this section%

YdefendantY $' means the person from whom the plainti1 see+sthe debt or damages&

Yplainti1Y $' means the person see+ing the debt or damages.

In%ere&% #n "men%&

S 50 $(' @udgment debts are to carr! simple interest%$a' at the rate the Court orders& or$b' in the absence of an order, at the rate the Chief @ustice determinesb! order,on the total amount of the 9udgment debt, or on the part that for thetime being remains unpaid, from the date of the 9udgment untilpa!ment.$*' "nterest under this section ma! be calculated at di1erent rates fordi1erent periods.

E/D

Documents

Seminar One Overview and Pre-commencement Considerations