Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 81

PARTNERS

1. Actions by and against firms within
jurisdiction (O. 81, r. 1)

Subject to the provisions of any written law, any 2 or more persons claiming
to be entitled, or alleged to be liable, as partners in respect of a cause of
action and carrying on business within the jurisdiction may sue, or be sued,
in the name of the firm (if any) of which they were partners at the time when
the cause of action accrued.

2. Disclosure of partners' names (O. 81, r. 2)

(1) Any defendant to an action brought by partners in the name of a firm may
serve on the plaintiffs or their solicitor a notice requiring them or him
forthwith to furnish the defendant with a written statement of the names and
places of residence of all the persons who were partners in the firm at the
time when the cause of action accrued; and if the notice is not complied with
the Court may order the plaintiffs or their solicitor to furnish the defendant
with such a statement and to verify it on oath or otherwise as may be
specified in the order, or may order that further proceedings in the action be
stayed on such terms as the Court may direct.

(2) When the names of the partners have been declared in compliance with a
notice or order given or made under paragraph (1), the proceedings shall
continue in the name of the firm but with the same consequences as would have
ensued if the persons whose names have been so declared had been named as
plaintiffs in the writ.

(3) Paragraph (1) shall have effect in relation to an action brought against
partners in the name of a firm as it has effect in relation to an action
brought by partners in the name of a firm but with the substitution, for
references to the defendant and the plaintiffs, of references to the plaintiff
and the defendants respectively, and with the omission of the words "or may
order" to the end.

3. Service of writ (O. 81, r. 3)

(1) Where by virtue of rule 1 partners are sued in the name of a firm, the
writ may, except in the case mentioned in paragraph (3), be served-

   (a)  on any one or more of the partners; or

   (b)  at the principal place of business of the partnership within the
        jurisdiction, on any person having at the time of service the control
        or management of the partnership business there; or

   (c)  by sending a copy of the writ by registered post (in accordance with
        Order 10, rule 1(2)) to the firm at the principal place of business of
        the partnership within the jurisdiction, and, subject to paragraph
        (2), where service of the writ is effected in accordance with this
        paragraph, the writ shall be deemed to have been duly served on the
        firm, whether or not any member of the firm is out of the
        jurisdiction.

(2) Where a writ is served on a firm in accordance with paragraph

(1)(c)-

   (a)  the date of service shall, unless the contrary is shown, be deemed to
        be the seventh day (ignoring Order 3, rule 2(5)) after the date on
        which the copy was sent to the firm; and

   (b)  any affidavit proving due service of the writ must contain a statement
        to the effect that-

        (i)    in the opinion of the deponent (or, if the deponent is the
               plaintiff's solicitor or an employee of that solicitor, in the
               opinion of the plaintiff) the copy of the writ, if sent to the
               firm at the address in question, will have come to the
               knowledge of one of the persons mentioned in paragraph (1)(a)
               or (b) within 7 days thereafter; and

        (ii)   the copy of the writ has not been returned to the plaintiff
               through the post undelivered to the addressee.

(3) Where a partnership has, to the knowledge of the plaintiff, been dissolved
before an action against the firm is begun, the writ by which the action is
begun must be served on every person within the jurisdiction sought to be made
liable in the action.

(4) Every person on whom a writ is served under paragraph (1)(a) or

   (b)  must at the time of service be given a written notice stating whether
        he is served as a partner or as a person having the control or
        management of the partnership business or both as a partner and as
        such a person; and any person on whom a writ is so served but to whom
        no such notice is given shall be deemed to be served as a partner.

4. Acknowledgment of service in an action
against firm (O. 81, r. 4)

(1) Where persons are sued as partners in the name of their firm, service may
not be acknowledged in the name of the firm but only by the partners thereof
in their own names, but the action shall nevertheless continue in the name of
the firm.

(2) Where in an action against a firm the writ by which the action is begun is
served on a person as a partner, that person, if he denies that he was a
partner or liable as such at any material time, may acknowledge service of the
writ and state in his acknowledgment that he does so as a person served as a
partner in the defendant firm but who denies that he was a partner at any
material time. An acknowledgment of service given in accordance with this
paragraph shall, unless and until it is set aside, be treated as an
acknowledgment by the defendant firm.

(3) Where an acknowledgment of service has been given by a defendant in
accordance with paragraph (2), then-

   (a)  the plaintiff may either apply to the Court to set it aside on the
        ground that the defendant was a partner or liable as such at a
        material time or may leave that question to be determined at a later
        stage of the proceedings;

   (b)  the defendant may either apply to the Court to set aside the service
        of the writ on him on the ground that he was not a partner or liable
        as such at any material time or may at the proper time serve a defence
        on the plaintiff denying in respect of the plaintiff's claim either
        his liability as a partner or the liability of the defendant firm or
        both.

(4) The Court may at any stage of the proceedings in an action in which a
defendant has acknowledged service in accordance with paragraph

(2), on the application of the plaintiff or of that defendant, order that any
question as to the liability of that defendant or as to the liability of the
defendant firm be tried in such manner and at such time as the  Court directs.

(5) Where in an action against a firm the writ by which the action is begun is
served on a person as a person having the control or management of the
partnership business, that person may not acknowledge service of the writ
unless he is a member of the firm sued.

5. Enforcing judgment or order
against firm (O. 81, r. 5)

(1) Where a judgment is given or order made against a firm, execution to
enforce the judgment or order may, subject to rule 6, issue against any
property of the firm within the jurisdiction.

(2) Where a judgment is given or order made against a firm, execution to
enforce the judgment or order may, subject to paragraph (3) and rule 6, issue
against any person who-

   (a)  acknowledged service of the writ in the action as a partner; or

   (b)  having been served as a partner with the writ of summons, failed to
        acknowledge service of it in the action; or

   (c)  admitted in his pleading that he is a partner; or

   (d)  was adjudged to be a partner.

(3) Execution to enforce a judgment or order given or made against a firm may
not issue against a member of the firm who was out of the jurisdiction when
the writ of summons was issued unless he-

   (a)  acknowledged service of the writ in the action as a partner; or

   (b)  was served within the jurisdiction with the writ as a partner; or

   (c)  was, with the leave of the Court given under Order 11, served out of
        the jurisdiction with the writ as a partner, and, except as provided
        by paragraph (1) and by the foregoing provisions of this paragraph, a
        judgment or order given or made against a firm shall not render
        liable, release or otherwise affect a member of the firm who was out
        of the jurisdiction when the writ was issued.

(4) Where a party who has obtained a judgment or order against a firm claims
that a person is liable to satisfy the judgment or order as being a member of
the firm, and the foregoing provisions of this rule do not apply in relation
to that person, that party may apply to the Court for leave to issue execution
against that person, the application to be made by summons which must be
served personally on that person.

(5) Where the person against whom an application under paragraph

(4) is made does not dispute his liability, the Court hearing the application
may, subject to paragraph (3), give leave to issue execution against that
person, and, where that person disputes his liability, the  Court may order
that the liability of that person be tried and determined in any manner in
which any issue or question in an action may be tried and determined.

6. Enforcing judgment or order in actions
between partners, etc. (O. 81, r. 6)

(1) Execution to enforce a judgment or order given or made in-

   (a)  an action by or against a firm in the name of the firm against or by a
        member of the firm; or

   (b)  an action by a firm in the name of the firm against a firm in the name
        of the firm where those firms have one or more members in common,
        shall not issue except with the leave of the Court.

(2) The Court hearing an application under this rule may give such directions,
including directions as to the taking of accounts and the making of inquiries,
as may be just.

7. Attachment of debts owed by firm (O. 81, r. 7)

(1) An order may be made under Order 49, rule 1, in relation to debts due or
accruing due from a firm carrying on business within the jurisdiction
notwithstanding that one or more members of the firm is resident out of the
jurisdiction.

(2) An order to show cause under Order 49, rule 1 relating to such debts as
aforesaid must be served on a member of the firm within the jurisdiction or on
some other person having the control or management of the partnership
business.

(3) Where an order made under Order 49, rule 1 requires a firm to appear
before the Court, an appearance by a member of the firm constitutes a
sufficient compliance with the order.

8. Actions begun by originating summons (O. 81, r. 8)

Rules 2 to 7 shall, with the necessary modifications, apply in relation to an
action by or against partners in the name of their firm begun by
originating summons as they apply in relation to such an action begun by writ.

9. Application to person carrying on business
in another name (O. 81, r. 9)

An individual carrying on business within the jurisdiction in a name or style
other than his own name, may, whether or not he is within the jurisdiction, be
sued in that name or style as if it were the name of a firm, and rules 2 to 8
shall, so far as applicable, apply as if he were a partner and the name or
style in which he carries on business were the name of his firm.

10. Applications for orders charging partner's interest in
partnership property, etc. (O. 81, r. 10)

(1) Every application to the Court by a judgment creditor of a partner for an
order under section 25 of the Partnership Ordinance ( Cap  38) (which
authorizes the Court or a judge thereof to make certain orders on the
application of a judgment creditor of a partner, including an order charging
the partner's interest in the partnership property), and every application to
the Court by a partner of the judgment debtor made in consequence of the
first-mentioned application, must be made by summons.

(2) A master may exercise the powers conferred on a judge by that section.

(3) Every summons issued by a judgment creditor under this rule, and every
order made on such a summons, must be served on the judgment  debtor and on
such of his partners as are within the jurisdiction.

(4) Every summons issued by a partner of a judgment debtor under this rule,
and every order made on such a summons, must be served-

   (a)  on the judgment creditor; and

   (b)  on the judgment debtor; and

   (c)  on such of the other partners of the judgment debtor as do not join in
        the application and are within the jurisdiction.

(5) A summons or order served in accordance with this rule on some only of the
partners shall be deemed to have been served on all the partners of the
partnership.