Hong Kong Ordinances

DISTRICT COURT ORDINANCE - SECT 41

Procedure where proceedings beyond the jurisdiction of the Court are commenced in the Court

(Past version on 01/07/1997).
(Past version on 30/06/1997).

Transfer of Proceedings and Miscellaneous Provisions as to Jurisdiction (Added
28 of 2000 s. 23)

(1) The Court shall, either of its own motion or on the application of any
party, order that an action or proceeding be transferred to the Court of First
Instance where an action or proceeding commenced in the Court, not being a
counterclaim, is outside the jurisdiction of the Court but is within the
jurisdiction of the Court of First Instance.

(2) The Court may, if it thinks fit, instead of ordering that the action or
proceeding be transferred, order that it be struck out where, on the
application of a defendant, it appears to the Court that the plaintiff or, if
more than one, one of the plaintiffs knew or ought to have known that the
Court had no jurisdiction.

(3) If a defendant in an action or proceeding within the jurisdiction of the
Court makes a counterclaim which is not within the jurisdiction of the Court
but within the jurisdiction of the Court of First Instance, the Court may,
either of its own motion or on the application of any party, order-

   (a)  that the whole proceedings be transferred to the Court of First
        Instance; or

   (b)  that the proceedings on the counterclaim be transferred to the Court
        of First Instance; and the proceedings on the plaintiff's claim,
        except for a defence of set-off as to the whole or a part of the
        subject matter of the counterclaim, be heard and determined by the
        Court; or

   (c)  where the Court considers the whole proceedings should be heard and
        determined in the Court, that the matter be reported to the Court of
        First Instance or a judge thereof.

(4) On the receipt of a report mentioned in subsection (3)(c), the Court of
First Instance or a judge thereof may, as it or he thinks fit, order either-

   (a)  that the whole proceedings be transferred to the Court of First
        Instance; or

   (b)  that the whole proceedings be heard and determined in the Court; or

   (c)  that the proceedings on the counterclaim be transferred to the Court
        of First Instance; and the proceedings on the plaintiff's claim,
        except for a defence of set-off as to the whole or a part of the
        subject matter of the counterclaim, be heard and determined by the
        Court.

(5) Where an order is made under subsection (3)(b) or subsection

(4)(c) and judgment on the claim is given for the plaintiff, execution thereon
shall, unless the Court of First Instance or a judge thereof at any time
otherwise orders, be stayed until the proceedings transferred to the Court of
First Instance have been concluded.

(6) If no report is made under subsection (3)(c), or if on any such report it
is ordered that the whole proceedings be heard and determined in the Court,
the Court shall have jurisdiction to hear and determine the whole proceedings
notwithstanding any enactment to the contrary. (Replaced 28 of 2000 s. 23)