Yu Fung Co Ltd v. Olympic City Properties Ltd and Another

HCMP 1084/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1084 OF 2008

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AND

HCA 3104/2015

ACTION NO 3104 OF 2015

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(Heard Together)

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J U D G M E N T

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Introduction

1.This case concerns a flat in Kowloon.  The flat has had a chequered history.  The redevelopment of the building in which the flat is has been described in a judgment of the Court of First Instance as “scandalous”.  The current issue is whether someone who claims to have been living in the flat for some time, Event Cheung, has acquired the right to occupy it.  Litigation over who has an interest in, or a right to occupy, the flat has already taken place.  Madam Cheung was not a party to that litigation.  She now applies to be joined as a party to that action, and for the enforcement proceedings giving effect to the judgment in that action to be stayed while her right to occupy the flat can be determined in new proceedings which she has commenced.  For its part, the company which was successful in the previous litigation, Yu Fung Co Ltd (“Yu Fung”), now applies for the Statement of Claim in Madam Cheung’s action to be struck out and the action dismissed on the basis that the issues which the action raises could and should have been litigated in the earlier proceedings.  Both Madam Cheung’s summons and Yu Fung’s summons were heard together, and this is the court’s judgment following the hearing of both summonses.

The previous litigation (HCMP 1084/2008)

2.The plaintiff in the previous litigation was Yu Fung.  There was originally only one defendant.  That was Olympic City Properties Ltd (“Olympic”).  By that action, which was begun by originating summons dated 10 June 2008, Yu Fung, a registered moneylender, sought the recovery of sums lent to Olympic and secured by a legal charge dated 18 September 1997 over Flat D, 20^th Floor, Profit Mansion, 23 Fei Fung Street, Kowloon (“the Flat”) and delivery‑up of vacant possession of the Flat.  The loan had originally been made to Olympic to enable it to purchase the Flat.  Olympic became the registered owner of the Flat, but on 2 January 1998 it assigned the Flat to Hebei Investment Ltd (“HIL”), the current registered owner of the Flat.  Yu Fung had no knowledge of that assignment and had not consented to it.

3.Shortly after the commencement of those proceedings, someone else claimed to have an interest in the Flat.  That was Tommy Lai.  He claimed to have been living in the Flat for some time — indeed, since before Olympic had become the registered owner of the Flat.  At his request, he was joined as a second defendant to Yu Fung’s claim on 10 July 2008.  As we shall see, that will become a significant date in this case.  His claim to have a beneficial interest in the Flat was on the basis of a redevelopment agreement he had executed in 1992 with the developers of an earlier building which had been on the site of the building in which the Flat was.

4.By that development agreement, Mr Lai had agreed to give up his flat in the previous building on the site.  That building would be demolished by the developers who would then erect the present building on the site.  Mr Lai would be provided with a flat in the new building. The new flat had not been identified at the time of the redevelopment agreement, but when the present building was completed, Mr Lai was given the keys to one of the flats in that building.  That was the Flat, ie the flat to which this action relates. 

5.It is here that the springs became polluted.  The redevelopment agreement was never registered at the Land Registry, and no assignment of the Flat was ever executed in Mr Lai’s favour.  Mr Lai’s case was that he had simply been allowed into the Flat after the building had been completed, and that after the Flat had been redecorated he and his family had moved into the Flat.  That had been in May or June 1997.  He had not known that the developers had assigned the Flat to Olympic’s predecessors in title in June 1997 or that the Flat had subsequently been assigned to Olympic.

6.It subsequently transpired that Mr Lai had been just one of about 60 occupants of flats in the new building who had come to occupy their flats pursuant to arrangements similar to those which Mr Lai had made with the developers.  The judgment in this litigation described all this as a “scam”, which had “sparked off” a number of cases involving the occupiers, the developers and other parties.

7.In November 2011, judgment was entered in favour of Yu Fung against Olympic for the amount outstanding under the loan together with interest.  Yu Fung proceeded with its claim for vacant possession of the Flat, and the proceedings were ordered to continue as if begun by writ. At the trial, only Yu Fung and Mr Lai appeared and were represented.  Olympic took no part in it.  In the course of the trial, Mr Lai’s counsel effectively abandoned the claim that Mr Lai had an interest in the Flat arising out of the redevelopment agreement, and the real issue in the case related to an alternative argument deployed on Mr Lai’s behalf, which was that he had been in adverse possession of the Flat for so long that Yu Fung could no longer claim possession of it.

8.On that issue, Deputy Judge Leung held that Mr Lai had indeed been in adverse possession of the Flat, but not for long enough to defeat Yu Fung’s claim by reason of the Limitation Ordinance (Cap 347).  That was because Deputy Judge Leung held that, if Mr Lai was to be able to rely on the Limitation Ordinance to defeat Yu Fung’s claim, he had to have been in adverse possession of the Flat for the 12 years immediately before 10 July 2008 when he became a defendant to Yu Fung’s claim.  Since the judge also held that Mr Lai’s adverse possession of the Flat had only begun in June 1997 when the developers had assigned the Flat without Mr Lai’s knowledge to Olympic’s predecessors in title, the 12 years necessary to afford Mr Lai a defence under the Limitation Ordinance had not elapsed.  Judgment was therefore entered in favour of Yu Fung against Mr Lai on 30 July 2015.  He was required, among other things, to give Yu Fung vacant possession of the Flat within 60 days.  There was no appeal from that judgment.  Mr Lai did not give up possession of the Flat within those 60 days, and on 26 October 2015 a writ of possession was issued.

The action brought by Madam Cheung (HCA 3104/2015)

9.This is where Madam Cheung came into the picture.  On 30 December 2015 she commenced an action of her own.  The defendants were HIL, the current registered owner of the Flat, and Yu Fung.  In those proceedings, she claims that she is entitled to occupy the Flat because of her adverse possession of it.  That is based on her claim that she is, and has at all material times been, Mr Lai’s “common law wife”, and that she has been “in successive, continuous and exclusive control and possession” of the Flat with Mr Lai and her family since about June 1997.  This assertion is not consistent with a witness statement she made on 31 March 2013 for the purpose of the previous litigation.  In that witness statement, she had given as her address an address in Hung Hom, and had claimed to be Mr Lai’s assistant in his work as a fortune teller.  She had said that she had helped him to move into the Flat and had supervised the redecoration of the Flat, but she had said nothing about being his “common law wife” or about living in the Flat herself.  However, when she gave oral evidence at the trial of the action, she said that she had been living with Mr Lai at the Flat, and that the reason why she had not disclosed that in her witness statement had been because she had been too embarrassed to admit that they had lived together without being married. 

10.In his judgment, Deputy Judge Leung mentioned that she had given evidence in the trial, and that her evidence had not been challenged, but since he said that her evidence related to Mr Lai’s redecoration of, and his moving into, the Flat, it may be that the judge was only saying that that part of her evidence had not been challenged.  In other words, it could be that the judge was not saying that her claim to have moved into the Flat with him had not been challenged.  Having said that, it may be unlikely that Yu Fung will assert that Madam Cheung did not move into the Flat when she claims that she did.  However, even if she had moved into the Flat then, Yu Fung claims that she deliberately concealed that fact from Yu Fung even on her own case.

11.The significance of Madam Cheung’s claim that she had been living in the Flat for as long as Mr Lai is that the cut‑off date for the purposes of Mr Lai’s defence — 10 July 2008 — may not apply in an action brought by her.  So even though Mr Lai’s limitation defence did not succeed, it is argued that any claim in an action brought by her would not be defeated by an assertion that her adverse possession of the Flat had not lasted long enough.

12.Commencing an action of her own was not the only step which Madam Cheung took to protect her position.  Following the issue of the writ of possession in the action brought by Yu Fung, Madam Cheung applied to be joined as a party to that action, and for there to be a stay of execution on Deputy Judge Leung’s judgment and the writ of possession pending the determination of her own claim.  That summons was filed on 6 January 2016 and is the first of the two summonses currently before the court. The second of the two summonses is Yu Fung’s summons in Madam Cheung’s action for her Statement of Claim to be struck out and the action dismissed. That summons was filed on 26 January 2016.

The issues

13.In the light of these facts, three issues need to be addressed.  First, is it now too late for Madam Cheung’s claim to a right to occupy the Flat to be litigated?  Secondly, if her claim is not too late to be litigated, can the merits of her claim be considered at this stage, and if they can, has her claim reached the appropriate threshold of arguability?  Thirdly, if her claim can be litigated, in which proceedings should it be litigated?  In the fresh proceedings she has brought, which is what she wants?  Or in the old proceedings brought by Yu Fung, which is what Yu Fung wants, provided that its other arguments that her claim should not be litigated at all fail?  The answers to those three questions will determine what orders should be made on the two summonses now before the court.

Can Madam Cheung’s claim still be litigated?

14.The courts will not allow a claim to be litigated if allowing it to proceed would amount to an abuse of the court’s process.  That can happen where the matter in dispute has been litigated in earlier proceedings, or could and should have been litigated in those proceedings.  The principle is succinctly summarised in Hong Kong Civil Procedure 2017 at para 18/19/10 as follows:

“ The basic rule is that, where a matter becomes the subject of adjudication, the court requires the parties to put forward their whole case and will not (except under special circumstances) permit them later to reopen matters which might have been brought forward as part of already concluded litigation (see Henderson v Henderson (1843) 3 Hare 100, 115).”

Two things should be added to that. First, the principle

“ …is not confined to issues which the court was actually asked to decide in the original litigation; it also covers issues or facts which are so clearly part of the subject‑matter of the original litigation and so clearly could have been raised then that it would be an abuse of process to allow new proceedings to be started in respect of them (see Greenhalgh v Mallard [1947] 2 All ER 255, at 257).”

Secondly, in Ngai Few Fung v Cheng Kwai Hung [2008] 2 HKC 111, Cheung JA agreed with and adopted the following comment of Lord Bingham in Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1 at p 31A‑B:

“ It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits‑based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

15.Of course, Madam Cheung was not a party to the previous litigation.  Does this principle apply to cases where a litigant wishes to raise an issue which has been litigated before, but not in litigation to which that litigant was a party?  The answer is that it does.  As Fok JA (as he then was) said in King’s City Holdings Ltd v De Monsa Investments Ltd [2013] 4 HKC 450 at [39]: 

“ …the court has power to strike out attempts to re‑litigate a decided issue as an abuse of the process of the court, even where the parties to the subsequent proceedings are not the same and cannot be described as privies of the original parties: see per Stock JA (as he then was) in China North Industries Investments Ltd v Chum [2010] 5 HKLRD 1 at [52].”

16.The case advanced on behalf of Yu Fung is that Madam Cheung should have applied to intervene in Yu Fung’s action against Mr Lai much earlier than she did.  The obvious time for her to have done that was when Mr Lai applied to be joined as a defendant.  Had she done that, her claim to be entitled to occupy the Flat by reason of her adverse possession of it could have been determined at the same time as Mr Lai’s identical claim.  That would have obviated the need for intervening in the previous proceedings as late as she did or the need for the new proceedings which she has brought. 

17.Madam Cheung has filed an affirmation in support of her summons in the previous proceedings.  It was filed on 7 January 2016.  In it she claims that it was not until that action was far advanced that she knew of the existence of Yu Fung’s claim and Mr Lai’s participation in the action, and even then she was not advised that she ought to apply to be a party in those proceedings.  Indeed, she says that it was not until after judgment had been handed down that she was advised that she had a right to occupy the Flat independent of that of Mr Lai, and that it had never been her intention to conceal that.

18.All of that is disputed by Yu Fung.  Is it really credible, it asks, that she did not know about Mr Lai’s involvement in Yu Fung’s action?  Would she not have realised that if Mr Lai was asserting a right to occupy the Flat on the basis that he had been living there for so long, she could assert the same thing herself?  And might not the real reason for her concealing the fact that she had moved into the Flat with Mr Lai have been because she wanted to avoid the possibility that her claim to be entitled to occupy the Flat might be defeated for the same reason as Mr Lai’s limitation defence might fail?  After all, the longer she delayed making her claim, the better chance she had of her claim not being successfully met by an allegation that she had not been in adverse possession of the Flat for long enough.

19.In addition, Yu Fung claims that it took all reasonable steps to inform anyone else who was occupying the Flat of the proceedings it had taken.  It says that on 10 October 2011 it caused a “Notice to Occupiers” addressed to all the occupants of the Flat to be posted on the gate outside the front door to the Flat.  The notice informed the occupiers of the Flat of Yu Fung’s action against Olympic and Mr Lai in which vacant possession of the Flat was being sought, and told them that if they intended to oppose the claim, they could apply by 29 November 2011 to be joined as defendants and defend the action.  It also told them that if they did not indicate their intention to oppose the claim by then, the court could make such order as it considered just and expedient. 

20.The difficulty is that these questions raise factual issues which cannot be decided on the basis of affirmations. Madam Cheung would have to be cross‑examined before I could come to an informed conclusion on where the truth lies.  There may be other evidence which is relevant to these issues as well.  Neither side suggested that the summonses be adjourned for evidence to be called.  For the present, therefore, I have no option but to proceed on the assumption that what Madam Cheung says about her delay in claiming a right to occupy the Flat is correct, even though I am highly sceptical about her claim to have been unaware of what was going on in the courts between Yu Fung and the man who she regarded as her husband.  On that basis, she could not have applied to intervene in Yu Fung’s action against Mr Lai because she was unaware of its existence until shortly before the trial of the action took place.

21.In any event, even if she had been aware of the proceedings for much longer than she says, and delayed in coming forward in order to improve her chances of establishing adverse possession of the flat for the requisite length of time, there was still no obligation on her to declare her interest in the Flat and claim the right to occupy the Flat earlier than she did.  Why should it be assumed that Madam Cheung was obliged to come out of the woodwork and reveal her occupation of the Flat, when lying low would increase her chances of defeating any claim that she had acquired the right to occupy the Flat by her adverse possession of it?  Why should she be regarded as having been obliged to take affirmative action in the way Mr Lai did if it was to her advantage to remain in the shadows for the time being?

22.That accords with the judgment of Ribeiro J (as he then was) in the unreported case of Wing Hang Bank Ltd v Tsang Sze Yin and ors (HCMP 1689/1998, 30 December 1999).  That was also a case in which mortgage proceedings had resulted in an order for possession of a flat being made, and a woman who had not been a party to those proceedings, Madam Shing, had subsequently claimed that she had an interest in the flat.  The only relevant differences between that case and the current one for present purposes are that in that case (a) Madam Shing claimed that she had only discovered about the proceedings after judgment had been given when a notice to occupiers had informed her that judgment had been entered for the mortgagee and that a writ of possession had been issued and (b) there was no issue about limitation.

23.There are a number of passages in Ribeiro J’s judgment which help on the issues I have to decide, and I set them all out here, even though it is what he said at [10] which is relevant to the argument I am addressing at the moment:

“ 9. A line of authorities shows that in cases like the present, the proper approach is for the person claiming the right to remain in possession to apply to be joined as a defendant and to have his claim tried as between himself and the purchaser or mortgagee claiming possession. The substantive rights are determined in the context of the intervener’s application to set aside the order for possession against himself (but not in respect of any other defendants against whom judgment may have been properly entered): Minet v Johnson (1890) 6 TLR 417, Berton v Alliance Economic Investment Co [1922] 1 KB 742 at 759, Leicester Permanent Building Society v Shearley [1951] Ch 90, In re Wykeham Terrace [1971] Ch 204, McPhail v Persons Unknown [1973] Ch 447.

10. Those authorities do not suggest that the occupier may be denied the right to contest the entitlement of the purchaser or mortgagee unless he can first explain why he did not intervene before judgment was entered (against other defendants), or unless he can first satisfy the court that he has a real prospect of success in upholding his claim to an interest in the property entitling him to remain in possession.

11. The onus rests on the plaintiff claiming possession. He must generally establish his right against all occupiers who assert an adverse claim to possession and who are, or who seek to be, made parties with a view to establishing such claim. This is reflected, for instance, in Order 13 of the High Court Rules in relation to actions begun by Writ. A plaintiff may enter default judgment under O 13 r 4(1) against a defendant where a claim for possession of land is involved. However, under O 13 r 4(5), such judgment ‘shall not be enforced against any defendant unless and until judgment for possession of the land has been entered against all the defendants.’

12. The bank in the present case seeks to enforce an order for possession of the flat presently occupied by Madam Shing. Before it can be allowed to do so, Madam Shing is at least prima facie entitled to be joined as a defendant for her claim to a beneficial interest in the property, allegedly binding on the bank, to be tested. Only if she fails and the bank secures judgment for possession, not only against the Defendants, but also against Madam Shing, should the bank be permitted to enforce such order.” (Emphasis supplied)

I agree with all of that.  So if Madam Shing did not have to explain why she had not sought to intervene in the proceedings earlier, so too does Madam Cheung not have to give such an explanation.  The fact that she sought to do so, and gave an explanation of which I am highly sceptical, does not affect that.

24.For these reasons, I have concluded that it is not now too late for Madam Cheung’s claim to a right to occupy the Flat to be litigated.

Is Madam Cheung’s claim sufficiently arguable to be litigated?  

25.Yu Fung contends that Madam Cheung’s claim that she has a right to occupy the Flat is bound to fail.  Its case is that on any view of the facts she occupied the Flat as Mr Lai’s licensee and not in her own right.  It is said that if she was merely his licensee, her occupation of the Flat could not have amounted to adverse possession: see the judgment of Chow J in Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy and ors [2015] 6 HKC 200 at [48] and the authorities cited at [49]‑[51].  The answer to that is what Ribeiro J said at [10] in his judgment in the Wing Hang Bank case, namely that the authorities he had just cited

“ …do not suggest that the occupier may be denied the right to contest the entitlement of the purchaser or mortgagee…unless he can first satisfy the court that he has a real prospect of success in upholding his claim to an interest in the property entitling him to remain in possession.”

Indeed, he went on to say at [15] that there was not any “threshold” test of arguability before Madam Shing should be allowed to have her substantive property rights determined, let alone one in which Madam Shing had to satisfy the court that she had a real prospect of success in establishing her claim.  It is true that he went on to consider the merits of her claim, but that was only because he had been addressed on them, not because he had to decide where the merits lay in order to dispose of the summons properly.  It follows that whatever the merits of Madam Cheung’s claim she is not prevented from pursuing it.

In what proceedings should Madam Cheung’s claim be litigated?

26.It is contended on behalf of Yu Fung that there was no need for Madam Cheung to issue fresh proceedings to establish her right to occupy the Flat.  She could, and still can, have her claim resolved in Yu Fung’s action.  All she has to do is to apply in that action for the writ of possession to be set aside.

27.There is no doubt that this was a course open to Madam Cheung.  Indeed, Ribeiro J said in the Wing Hang Bank case at [9] that it was an appropriate course to take:

“ …in cases like the present, the proper approach is for the person claiming the right to remain in possession to apply to be joined as a defendant and…[to apply] to set aside the order for possession as against himself…”

The question is whether it is permissible for someone in Madam Cheung’s position to eschew what Ribeiro J described as “the proper approach”, and issue fresh proceedings instead.  ‌After all, Ribeiro J did not say that intervening in the existing proceedings was necessarily the only proper approach.

28.That question is said to have been addressed by Godfrey Lam J in Chan Kwok Chu (trading as Ho Kee Motors Service) v Gotland Enterprises Ltd (HCA 282/2015, 6 January 2016).  A writ of possession of some land in the New Territories had recently been executed following an order for possession in proceedings under Ord 113 of the Rules of the High Court.  Mr Chan had not been specifically named as a party to those proceedings, but he had been a party in the sense that the defendants in those proceedings included anyone who was in occupation of the land.  After the order for possession had been made, but before the writ of possession had been executed, he applied to be joined as a party to the proceedings.  Before that application could be determined, he withdrew it, and following the execution of the writ of possession he issued fresh proceedings claiming a declaration that he was entitled to occupy the land by virtue of his adverse possession of it.  The defendant applied for the Statement of Claim in the fresh proceedings to be struck out and the action dismissed.

29.Godfrey Lam J struck out the Statement of Claim and dismissed the action on the basis that the fresh proceedings amounted to an abuse of the court’s process.  There were two reasons why he came to that conclusion.  First, the fresh proceedings were “incompatible with the writ of possession on the strength of which Mr Chan had been evicted”. The incompatibility did not arise because the writ of possession had been executed.  It arose because Mr Chan had been a party to the claim as an occupier of the land, even though he had not been specifically named as a defendant.  Accordingly, the existence of the writ of possession — which had been issued following an order for possession — had to be treated as having been issued against him, and that was incompatible with the claim in the fresh proceedings that no order for possession could be made against Mr Chan because of his right to occupy the land.  As Godfrey Lam J said at [29], “[i]f the writ is to be challenged it is to be challenged in the possession action itself”.

30.That reasoning does not apply to this case. Madam Cheung had not been a party to the previous proceedings, and the order for possession in those proceedings could not be regarded as having been made against her.

31.Godfrey Lam J’s other reason for striking out the Statement of Claim and dismissing the new action was that Mr Chan could not try to improve his position on limitation by bringing fresh proceedings instead of seeking to set aside the writ of possession as against himself in the previous proceedings.  That was a reference to the claim made by Mr Chan’s counsel that in the fresh proceedings Mr Chan might only have had to show that he had been in adverse possession of the land in the 12 years up to his eviction in January 2015, whereas in an application in the previous proceedings to set aside the order for possession he would have had  to show that he had been in adverse possession of the land in the 12 years up to October 2003 when the previous proceedings were commenced.  On that topic, Godfrey Lam J said at [30]:

“ It would in my view be quite unfair that a squatter such as Mr Chan should be able to improve his position in that way by bypassing an action for possession that the owner had previously properly brought as long ago as in 2003.”

32.I understand entirely where Godfrey Lam J was coming from in his case.  Although Mr Chan had not been specifically named as a defendant, the fact is that he had been a party to the proceedings because anyone who had been in occupation of the land had been a party.  To use Godfrey Lam J’s own words, it would have been “quite unfair” for someone who had been occupying the land “to improve his position … by bypassing an action for possession” against him which had been properly brought many years before.  But once again reasoning of this kind does not apply to the present case.  Yu Fung’s action for possession was not brought against Madam Cheung, and the order for possession in that action was not made against her.

33.So if, as I believe, Godfrey Lam J’s case is distinguishable from Madam Cheung’s case, the question remains whether intervening in the existing proceedings was the only proper course open to Madam Cheung.  I do not think that it was.  The existing proceedings were proceedings in which Madam Cheung’s right to occupy the Flat could have been litigated, but I do not think that those proceedings had to be the forum in which that issue was to be litigated.  Apart from what I said in para 21 above about there having been no obligation on her to declare her interest in the Flat earlier than she did, it is not as if the court had already determined whether she had the right to occupy the Flat.  So there was no chance of inconsistent judgments in different proceedings, nor any question of there being a multiplicity of proceedings, since Madam Cheung’s only reason for seeking to be joined in the existing proceedings is to obtain a stay of the enforcement of the judgment in those proceedings.  In the circumstances, I do not see why Madam Cheung should be prevented from having her right to occupy the Flat decided in the fresh proceedings she has issued.

The orders to be made on the summonses

34.If Madam Cheung’s right to occupy the Flat is to be litigated in HCA 3104/2015, there has to be a stay of the execution of the writ of possession in HCMP 1084/2008.  Otherwise any judgment in her favour in HCA 3104/2015 will be worthless.  In order to enable her to apply for that stay, I grant her application to be joined as a party to HCMP 1084/2008.  I stay the execution of the writ of possession in those proceedings.  That stay will continue until Madam Cheung’s claim in HCA 3104/2015 has been determined or until further order in the meantime.  Yu Fung’s application to strike out the Statement of Claim in HCA 3104/2015 and for the action to be dismissed is itself dismissed. 

35.At present, I see no reason why costs should not follow the event.  After all, Yu Fung could have agreed to Madam Cheung being joined as a party to HCMP 1084/2008, and the order nisi which I make, therefore, is that Yu Fung must pay to Madam Cheung her costs of both summonses, to be taxed if not agreed, save that there should be no order for Madam Cheung’s costs of issuing the summons in HCMP 1084/2008.  

Mr Joseph Vaughan, instructed by Gallant, for the plaintiff in HCMP 1084/2008 and for the 2^nd defendant in HCA 3104/2015

The 1^st and 2^nd defendants in HCMP 1084/2008 were unrepresented and did not appear

Mr J Chang and Mr M Ho, instructed by Dundons, for the interested party in HCMP 1084/2008 and the plaintiff in HCA 3104/2015

The 1^st defendant in HCA 3104/2015 was unrepresented and did not appear