Join Win Holdings Ltd v. City Target Ltd and Others

HCA 1526/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1526 OF 2015

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DECISION
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1.I have before me a summons issued by the 1^st defendant on 7 October 2015 seeking to vacate the pending registration of the writ of summons herein in the Land Registry by memorial no 15082802610085 against the property known as Commercial Unit on 8^th Floor, “726 Nathan Road”, No 726 Nathan Road, Kowloon (“the Property”).

2.The background facts giving rise to the dispute between the plaintiff and the 1^st defendant were set out in a previous decision of this court given on 20 July 2015 in HCA 1188/2015 (“the Decision”), and I shall not set them out again in this decision.

3.By the Decision, I struck out the plaintiff’s indoresment of claim against the 1^st defendant on the ground that the alleged oral contract relied upon by the plaintiff for the sale and purchase of the Property was not enforceable by virtue of section 3 of the Conveyancing and Property Ordinance, Cap 219.

4.The plaintiff has issued a notice of appeal in CACV 190/2015 against the Decision, but the appeal has not yet been heard.

5.The present action was commenced by the plaintiff by writ of summons issued on 7 July 2015.  No statement of claim has yet been filed or served by the plaintiff.

6.In the indorsement of claim in this action, reference is made to the plaintiff’s action in HCA 1188/2015, and it is stated that “the Plaintiff claims against the 1^st Defendant and third parties (namely, the 2^nd, 3^rd, 4^th and 5^th Defendants) for further [relief] in aid of HCA 1188/2015”.

7.The 2^nd defendant is an estate agency company, and the 3^rd to 5^th defendants are, I am told, estate agents working for the 2^nd defendant.

8.In the indorsement of claim in this action:-

(1) the relief sought by the plaintiff against the 1^st defendant is for an injunction to restrain it from selling or otherwise disposing of or dealing with the Property; and

(2) the relief sought by the plaintiff against the 2^nd to 5^th defendants is for an injunction to restrain them from assisting the 1^st defendant in selling or otherwise disposing of or dealing with the Property.

9.Having regard to the fact that the plaintiff’s claim against the 1^st defendant in HCA 1188/2015 has been struck out, it follows that the present claims against the defendants are unsustainable and there would be no basis for the writ herein to be registered in the Land Registry against the Property.  I should add that the present claim against the 1^st defendant should, and could, have been made in HCA 1188/2015.  I am unable to see any justification for a second action being brought against the 1^st defendant by the plaintiff.

10.For the above reasons, I make an order in terms of paragraph 1 of the 1^st defendant’s summons dated 7 October 2015.

11.I also made an order that the 1^st defendant shall have the costs of this application, and I consider it appropriate to assess the costs summarily.

12.I have before me a statement of the costs of the 1^st defendant and do not propose to analyse the items on that statement individually.  Counsel’s brief fee seems to me to be reasonable.  In so far as the solicitors’ profits costs are concerned, I consider that the present application is a straight forward one and I would allow the gross sum of HK$25,000.  In all, I would summarily assess the costs of the 1^st defendant in the sum of HK$53,000, which shall be payable by the plaintiff forthwith.

Messrs Lim & Lok, for the plaintiff, absent

Mr Lam Chin Ching, Gary instructed by Messrs DLA Piper Hong Kong,for the 1^st defendant