YIU CHOR YAM WENDY v. WAH MEI FASHION & TRADING CO LTD

DCCJ2778/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2778 OF 2004

BETWEEN

  YIU CHOR YAM WENDY Plaintiff
  and  
  WAH MEI FASHION &
TRADING COMPANY LIMITED
Defendant
  BANK OF CHINA (HONG KONG) LIMITED Garnishee

Coram: H H Judge H C Wong in Chambers

Date of Hearing: 10 November 2005

Date of Delivery of Decision: 10 November 2005

D E C I S I O N

1. This is an appeal against the order of Registrar Yu of 21 September 2005 discharging the garnishee order nisi and with costs assessedafter setting off the costs of the plaintiff entitled under the garnishee order to show cause in usual situation up to early September2005 at HK$250 to be paid forthwith.

2. The plaintiff disagrees with the decision of the registrar on the basis that the plaintiff is entitled to have the garnishee ordermade absolute and to the costs of the garnishee proceedings which included costs before the garnishee proceedings commenced. Infact, after reading Registrar Yu’s order, the costs of the garnishee proceedings have been dealt with under paragraph 2 of hisorder.

3. The chronology of the events clearly showed and it is not disputed that on 2 September 2005, after the garnishee order to show causewas issued on 19 August 2005, the defendant paid to the plaintiff’s solicitor a cheque for the judgment sum of $25,200. This chequewas kept by the plaintiff but it was not presented until 23 September 2005, two days after Registrar Yu had discharged the garnisheeorder.

4. The plaintiff continued to nit-pick on the defendant’s payment by cheque and its offer to pay costs of $2,500. The correspondencesbetween the parties adequately bear evidence of the above and the plaintiff has a clear intention to press on with the garnisheeorder to show cause hearing on 21 September 2005. Moreover, the plaintiff insisted that the garnishee under the order should filean affidavit or affirmation disclosing all the debts of the defendant.

5. Mr Ng, counsel for the defendant, submitted that the true intention of the plaintiff all along when it insisted on pressing aheadwith the garnishee order to show cause application in spite of the payment of the judgment debt was so that the garnishee would filean affirmation disclosing all the debts of the defendant known to the garnishee.

6. After reading the correspondences between the parties exchanged after the notice of garnishee order to show cause was served, itis obvious that in spite of the defendant’s delivery of the cheque for full payment of the judgment debt, the plaintiff was mostunwilling to abandon the garnishee proceedings even though the defendant had offered to pay costs of $2,500. The plaintiff did notmake any counter-offers for costs incurred due to the execution proceedings taken.

7. From the correspondences, it is obvious that the plaintiff’s insistence on pressing ahead with the garnishee proceedings was morethan just for the purpose of execution of the payment of judgment debt. I would not wish to speculate what the plaintiff’s truemotive was. Mr Ng’s suggestion may be a correct one for the plaintiff’s letter to the Bank of China, the garnishee, puttingpressure on the Bank of China to disclose the debt of the defendant on affidavit is clearly evident.

8. However, this is not the issue in this hearing. The fact remains the defendant had paid over to the plaintiff’s solicitor thejudgment sum. The garnishee order nisi had its effect within two weeks of the service of notice of garnishee order to show cause. The defendant paid up the judgment debt. There is therefore no further purpose for the garnishee order to continue.

9. Based on these facts, I am satisfied that Registrar Yu’s order discharging the garnishee order is a correct one. Registrar Yualso made appropriate orders for costs. As Mr Ng rightly pointed out, under Order 58/1/6, the plaintiff has failed to show in whatway Registrar Yu was wrong in law or that his order of costs was unreasonable. I therefore dismiss this appeal with costs againstthe plaintiff.

10. There is certificate for counsel and costs to be taxed if not agreed.

(H C Wong)
District Court Judge

Mr Jenkin Suen, instructed by Messrs Chan, Wong & Lam, for the Plaintiff

Mr Tony Ng, instructed by Messrs S K Wong & Co., for the Defendant

Garnishee, in person, absent