Hong Kong Regulations

THE RULES OF THE SUPREME COURT - ORDER 44

PROCEEDINGS UNDER JUDGMENTS AND ORDERS

Caution: This is a past version. See the current version here.

1. Application to orders (O. 44, r. 1)

In this Order references to a judgment include references to an order.

2. Service of notice of judgment on person not a party (O. 44, r. 2)

(1) Where in an action for-

   (a)  the administration of the estate of a deceased person, or

   (b)  the execution of a trust, or

   (c)  the sale of any property, the Court gives a judgment or makes a
        direction which affects persons not parties to the action, the Court
        may when giving the judgment or at any stage of the proceedings under
        the judgment direct notice of the judgment to be served on any such
        person and any person so served shall, subject to paragraph (4), be
        bound by the judgment as if he had originally been a party to
        the action.

(2) If it appears that it is not practicable to serve notice of a judgment on
a person directed to be served the Court may dispense with service and may
also order that such person be bound by the judgment.

(2A) Order 6, rule 7(3) and (5) shall apply in relation to a notice of
judgment under this rule as if the notice were a writ and the person by whom
the notice is issued were the plaintiff. (L.N. 404 of 1991)

(3) Every notice of a judgment for service under this rule must be indorsed
with a memorandum in Form No. 52 in Appendix A and accompanied by a form of
acknowledgment of service in Form No. 15 in Appendix A with such modifications
as may be appropriate and the copy of the notice to be served shall be a
sealed copy.

(4) A person served with notice of a judgment may, within one month after
service of the notice on him, and after acknowledging service, apply to
the Court to discharge, vary or add to the judgment.

(5) A person served with notice of a judgment may, after acknowledging service
of the notice, attend the proceedings under the judgment.

(6) Order 12, rules 1 to 4, shall apply in relation to the acknowledgment of
service of a notice of judgment as if the judgment were a writ, and the person
by whom the notice is served were the plaintiff and the person on whom it is
served a defendant. (L.N. 404 of 1991)

3. Directions by the Court (O. 44, r. 3)

(1) Where a judgment given in a cause or matter contains directions which make
it necessary to proceed in chambers under the judgment the  Court may, when
giving the judgment or at any time during proceedings under the judgment, give
further directions for the conduct of those proceedings, including, in
particular, directions with respect to-

   (a)  the manner in which any account or inquiry is to be prosecuted,

   (b)  the evidence to be adduced in support thereof,

   (c)  the preparation and service on the parties to be bound thereby of the
        draft of any deed or other instrument which is directed by the
        judgment to be settled by the Court and the service of any objections
        to the draft,

   (d)  without prejudice to Order 15, rule 17, the parties required to attend
        all or any part of the proceedings,

   (e)  the representation by the same solicitors of parties who constitute a
        class and by different solicitors of parties who ought to be
        separately represented, and

   (f)  the time within which each proceeding is to be taken, and may fix a
        day or days for the further attendance of the parties.

(2) The Court may revoke or vary any directions given under the rule.

4. Application of rules 5 to 8 (O. 44, r. 4)

Rules 5 to 8 apply-

   (a)  where in proceedings for the administration under the direction of
        the Court of the estate of a deceased person the judgment directs any
        account of debts or other liabilities of the deceased's estate to be
        taken or any inquiry for next of kin or other unascertained claimants
        to be made, and

   (b)  where in proceedings for the execution under the direction of
        the Court of a trust the judgment directs any such inquiry to be made,
        and those rules shall, with the necessary modifications, apply where
        in any other proceedings the judgment directs any account of debts or
        other liabilities to be taken or any inquiry to be made.

5. Advertisements for creditors and other claimants (O. 44, r. 5)

The Court may, when giving a judgment or at any stage of proceedings under a
judgment, give directions for the issue of advertisements for creditors or
other claimants and may fix the time within which creditors and claimants may
respond.

6. Examination of claims (O. 44, r. 6)

(1) Where an account of debts or other liabilities of the estate of a deceased
person has been directed, such party as the Court may direct must-

   (a)  examine the claims of persons claiming to be creditors of the estate,

   (b)  determine, so far as he is able, to which of such claims the estate is
        liable, and

   (c)  at least seven clear days before the time appointed for adjudicating
        on claims, make an affidavit stating his findings and his reasons for
        them and listing all the other debts of the deceased which are or may
        still be due.

(2) Where an inquiry for next of kin or other unascertained claimants has been
directed, such party as the Court may direct must-

   (a)  examine the claims,

   (b)  determine, so far as he is able, which of them are valid, and

   (c)  at least seven clear days before the time appointed for adjudicating
        on claims, make an affidavit stating his findings and his reasons for
        them.

(3) If the personal representative or trustee concerned are not the parties
directed by the Court to examine claims, they must join with the party
directed to examine them in making the affidavit required by this rule.

7. Adjudication on claims (O. 44, r. 7)

For the purpose of adjudicating on claims the Court may-

   (a)  direct any claim to be investigated in such manner as it thinks fit,

   (b)  require any claimant to attend and prove his claim or to furnish
        further particulars or evidence of it, or

   (c)  allow any claim after or without proof thereof.

8. Notice of adjudication (O. 44, r. 8)

The Court shall give directions that there be served on every creditor whose
claim or any part thereof has been allowed or disallowed, and who did not
attend when the claim was disposed of, a notice informing him of that fact.

9. Interest on debts (O. 44, r. 9)

(1) Where an account of the debts of a deceased person is directed by any
judgment, then, unless the deceased's estate is insolvent or the  Court
otherwise orders, interest shall be allowed-

   (a)  on any such debt as carries interest, at the rate it carries, and

   (b)  on any other debt, from the date of the judgment at the rate payable
        on judgment debts at that date.

(2) A creditor who has established his debt in proceedings under the judgment
and whose debt does not carry interest shall be entitled to interest on his
debt in accordance with paragraph (1)(b) out of any assets which may remain
after satisfying the costs of the cause or matter, the debts which have been
established and the interest on such of those debts as by law carry interest.

(3) For the purposes of this rule "debt" (債項) includes funeral,
testamentary or administration expenses and, in relation to expenses incurred
after the judgment, for the reference in paragraph (1)(b) to the date of the
judgment there shall be substituted a reference to the date when the expenses
became payable.

10. Interest on legacies (O. 44, r. 10)

Where an account of legacies is directed by any judgment, then, subject to any
directions contained in the will or codicil in question and to any order made
by the Court, interest shall be allowed on each legacy at the rate of 8 per
cent per annum beginning at the expiration of one year after the testator's
death.

11. Master's order (O. 44, r. 11)

(1) Subject to Order 37, rule 2, the result of proceedings before a master
under a judgment shall be stated in the form of an order. (L.N. 363 of 1990)

(2) Subject to any direction of the master under paragraph (3) or otherwise an
order under this rule shall have effect as a final order disposing of the
cause or matter in which it is made.

(3) An order under this rule shall contain such directions as the master
thinks fit as to the further consideration, either in court or in chambers, of
the cause or matter in which it is made.

(4) Every order made under this rule shall have immediate binding effect on
the parties to the cause or matter in which it is made and copies of the order
shall be served on such of the parties as the master may direct.

12. Appeal against master's order (O. 44, r. 12)

(1) Subject to paragraph (2), Order 58, rule 1 shall apply to an order under
this rule as it applies to any judgment, order or decision of a master.

(2) If the order is to be acted on by the Judiciary Accountant or is an order
passing a receiver's account, notice of appeal must be issued not later than
two clear days after the making of the order and, where the order is to be
acted on by the Judiciary Accountant, a duplicate of it must be served on the
Judiciary Accountant as soon as practicable after it is made. (Enacted 1988)
"debt" (債項)