Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Brand Farrar Buxbaum Llp v Samuel-rozenbaum Diamond Ltd. And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date17 December 2002
Year2002
Judgement NumberHCA5191/1998
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA005191C/1998 BRAND FARRAR BUXBAUM LLP v. SAMUEL-ROZENBAUM DIAMOND LTD. AND OTHERS

HCA0005191C/1998

HCA 5191/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5191 OF 1998

____________________

BETWEEN
BRAND FARRAR BUXBAUM LLP
(formerly known as ARNBERGER, KIM,
BUXBAUM & CHOY)(A FIRM)		 Plaintiff
AND
SAMUEL-ROZENBAUM DIAMOND LIMITED and SAMUEL ROZENBAUM DIAMOND (1992) LIMITED Defendants
AND
SAMUEL-ROZENBAUM HK LIMITED Claimant

____________________

Coram: Hon Sakhrani J in Court

Date of Hearing: 28-29 November and 2 December 2002

Date of Judgment: 17 December 2002

____________________

J U D G M E N T

____________________

1. The background to the matters before me is the claim made by the plaintiff ("Judgment Creditor") in this action against the defendants Samuel-Rozenbaum Diamond Limited and Samuel-Rozenbaum Diamond (1992) Limited ("the Judgment Debtors"). The Judgment Creditor obtained judgment in respect of legal services rendered to the Judgment Debtors between September 1995 and December 1997. The action was initially defended with a defence filed and served but on 18 March 2000 the Judgment Creditor obtained a default judgment in the sum of US$102,278.40 with interest .

2. On 14 January 2002 a writ of fieri facias was issued directing the Bailiff to seize the Judgment Debtors' goods, chattels and other property in execution of the said judgment. The execution took place on 27 February 2002 at two locations. One was at a jewellery exhibition at the Hong Kong Convention and Exhibition Centre ("the Convention Centre") and the other was at the offices of the Claimant at Unit 1302, 13/F, Chinachem Cameron Centre, 42-44 Cameron Road, Tsimshatsui, Kowloon ("the office premises").

3. At the jewellery exhibition the Bailiff Ms. Chan Pui Kuen ("Ms. Chan") seized ten lots of diamonds. At the time of the seizure the Claimant protested that the diamonds belonged to it and not to the Judgment Debtors and should not be seized. The Judgment Creditor and their solicitors undertook to indemnify the Bailiff and the Bailiff seized the diamonds. At the office premises Mr. Li Ka To ("Mr. Li") another Bailiff also seized furniture and office equipment.

4. Because of the rival claims of the Judgment Creditor and the Claimant the Bailiff took out an Interpleader Summons on 4 March 2002. Directions were given by Master C. B. Chan on 22 March 2002 .

5. The substantive hearing of the Interpleader Summons was before Master S. Wong on 9 April 2002. At that hearing some of the deponents were cross-examined. The Master dismissed the Claimant's claim to or in respect of the goods and chattels seized by the Bailiff and further ordered that the writ of fieri facias be proceeded with. He also ordered that the furniture and office equipment be returned to the Claimant on condition that the Claimant pays HK$13,470 to the Judgment Creditor or its solicitors.

6. The Claimant appealed against the order of Master S. Wong. The matter came before me on 23 May 2002. At that hearing the Claimant applied for leave to rely on fresh evidence on the appeal. After hearing arguments I granted leave to the Claimant to rely on the fresh evidence. By my order of 23 May 2002 the appeal was allowed and an issue was ordered to be tried namely, whether the Claimant was the owner or was otherwise entitled to the goods and chattels as at the date of the seizure on 27th February 2002 ("the Issue"). Save that the order in relation to the furniture and office equipment was to remain in force upon the Judgment Creditor's undertaking that it would repay the said sum to the Claimant if the Issue would be determined in favour of the Claimant, the Master's order was set aside. His ruling that the burden of proof of the ownership of the goods and chattels seized by the Bailiff be on the Claimant was also set aside. Directions were also given for the filing of further evidence.

7. The trial of the Issue was fixed for hearing on 28 and 29 November 2002. On 14 November 2002 the solicitors for the Judgment Creditor wrote to the solicitors for the Claimant informing them that the Judgment Creditor was not maintaining its claim to the goods and chattels seized under the writ of fieri facias but that it wished to be heard on the question of costs. The Claimant's solicitors responded that at the trial of the Issue they would seek relief from the court as set out in the list enclosed with the letter.

8. At the outset of the hearing before me on 28 November 2002 Mr. Smith SC leading Mr. Maullerett, for the Claimant, asked for the relief as follows:

(1) An order be made on the Interpleader Summons that the Claimant is entitled to all the goods and chattels seized by the Bailiff on 27th February 2002 and that all the said goods and chattels be released to the Claimant forthwith.

(2) The Bailiff do repay to the Claimant the sum of HK$60,000 forthwith, which was paid by the Claimant to the Bailiff pursuant to the order of Master S. Wong dated 9th April 2002.

(3) The Plaintiff do repay to the Claimant the sum of HK$13,470 forthwith, which was paid by the Claimant to the Plaintiff pursuant to my order of 23rd May 2002.

(4) Application made by the Bailiff for relief under O.17 R.3 (i.e. a protection order) be dismissed.

(5) Costs of the Claimant of and incidental to the Interpleader Summons, together with the costs of the Claimant of and incidental to the hearing before Master S. Wong herein on 9th April 2002, be paid by the Plaintiff to the Claimant on the highest possible basis as the Court deems fit.

(6) Costs of the Bailiff of and incidental to the Interpleader Summons be paid by the Plaintiff to the Bailiff on such basis as the Court deems fit."

9. Mr. Graham for the Judgment Creditor agreed that the Claimant was entitled to the relief sought under (1) and (3) above and accordingly, I made an order in terms of the relief sought under (1) and (3) above. The rest of the relief sought was disputed.

Application for protection orders

10. Mr. Lam on behalf of the Bailiffs Ms. Chan and Mr. Li sought protection orders in respect of the execution of the writ of fieri facias on 27 February 2002. Ms. Chan was the Bailiff who levied execution at the jewellery exhibition at the Convention Centre and Mr. Li was the Bailiff who levied execution at the office premises.

11. It is not disputed that the Court has jurisdiction to grant a protection order under 0.17, r.8 of the RHC which provides as follows:

“ Subject to the foregoing rules of this Order, the Court may in or for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just."

12. As stated in 17/8/3 of the Hong Kong Civil Procedure 2002 Vol. 1 a protection order in favour of a Bailiff who has interpleaded ordering that no action may be brought against him is ordinarily made. It is important to bear this in mind.

13. As the Claimant is entitled to the goods seized, it is clear that the execution was wrongful amounting to a trespass to the Claimant's goods. Although this would give rise to a claim by the Claimant against the Bailiff it is important to bear in mind that a Bailiff has a unique common law defence. This is available to Bailiffs or other executing officers in the execution of their duties.

14. The unique common law defence was stated by Suffiad J. in Fu Lok Man James v. Chief Bailiff of the High Court [1998] 2 HKC 1 @ 15 as follows:

“ Common law protection

A Bailiff very often finds himself in the position, when levying execution, that the goods are claimed by a third party. In such a situation, if the Bailiff withdraws and it turns out that the goods were indeed the execution debtor's, he may be liable for breaches of his duties in the execution. On the other hand, if he seizes the goods and it turns out to be in fact belonging to the Claimant, he may be liable to an action by the Claimant. The common law therefore has provided for a unique defence to Bailiffs or other executing officers in such situations that if the Bailiff or executing officer has only made an honest mistake in executing the process of the court and in all the circumstances no 'real grievance' or 'substantial grievance' has been caused to a Claimant beyond the mere entry and seizure of the goods, then the Bailiff or executing officer should be protected from an action for damages. It would be otherwise if the Bailiff or executing officer were guilty of insolent or oppressive conduct in excess of his duty and not justified by the writ of execution (see Smith v. Critchfield (1885) 14 QBD 873 and also Neumann v. Bakeaway Ltd. [1983] 1 WLR 1016). "

(my emphasis).

15. Mr. Lam submitted that the proper approach of the Court in deciding whether a protection order should be made was whether or not the Claimant could show that it was fairly arguable that he can defeat the common law defence open to the Bailiff.

16. Mr. Lam relied on Observer Ltd. v. Gordon [1983] 1 WLR 1008. Glidewell J. said at 1011 as follows:

“ First of all, what is the proper approach of the court to an application on behalf of the sheriff that the court should order 'no action' be brought? The court, in this sense, means the master in the first instance and, on appeal, the judge. In my view, one can properly draw the analogy of Order 14 proceedings in reverse, i.e. to be allowed to proceed with his action it is for the claimant to show that he has a real chance of defeating both defences available to the sheriff. If he shows this, a "no action" order should not be made and the claimant should be allowed to continue with his action".

17. At page 1012, Glidewell J. said that he proposed to adopt "fairly arguable" as the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT