Chang King To v. Wong Shuen Yuk

HCA 2518/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2518 OF 2015

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BETWEEN

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REASONS FOR DECISION

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1.By summons dated 24 November 2016 (“the summons to vary”) the defendant (“D”) applied to vary the costs order nisi I made when I gave judgment on 10 November 2016. At the hearing of the summons to vary on 27 April 2017 I dismissed the summons to vary with costs to the plaintiff (“P”). I also ordered that P’s own costs be taxed in accordance with Legal Aid Regulations. I indicated at the time that I would give reasons in writing for my decision. This I now do.

2.By paras 1 and 2 of D’s summons dated 21 June 2016 (“the strike out summons”) D applied to strike out the statement of claim in this action and for an order that P’s claims in this action be dismissed. 

3.Alternatively, by para 3 of the strike out summons, D sought an order that leave be granted to D to file and serve her defence within 28 days from the date of the order to be made.

4.For the reasons given in my judgment dated 10 November 2016, I dismissed paras 1 and 2 of the strike out summons.  I made an order in the terms of para 3 of the strike out summons and gave leave to D to file her defence within 28 days from the date of my judgment.  I also made a costs order nisi that D do pay P his costs of the strike out summons, such costs to be taxed, if not agreed.  P’s own costs were also ordered to be taxed in accordance with Legal Aid Regulations.

5.By the summons to vary, D sought to vary the costs order nisi so that the costs of the strike out summons to be paid by D to P should be taxed, if not agreed, at the District Court scale instead of the High Court scale.

6.Mr Justin Lam, for the defendant (who did not appear at the hearing of the strike out summons), submitted that P’s claims in this action fell within the jurisdiction of the District Court and that P should have commenced and pursued the claims in the District Court rather than in the High Court.  That being so, it was submitted that the costs order nisi made in favour of P should be taxed at the District Court scale rather than the High Court scale.

7.Mr Justin Lam relied on the decision of Deputy Judge Winnie Tsui (as she then was) in the District Court in Ng Cho Chu Judy v Chan Wing Hung [2016] 1 HKLRD 1073 where the judge held that section 36 of the District Court Ordinance (Cap 336) was a jurisdiction conferring provision which gave the District Court the power to hear pure title cases.

8.Mr Justin Lam also relied on the fact that P had already brought proceedings in the District Court against his brother and D being DCCJ 2850 of 2014 (“DCCJ 2850”). He submitted that this action by P against D should also have been commenced and pursued in the District Court.

9.I would observe that in DCCJ 2850 P claims against his brother as trespasser. P claims vacant possession of the property against his brother, further or alternatively, mesne profits for occupation of the property, further or alternatively, damages for trespass.  Although D is the 2^nd defendant in DCCJ 2850, no relief is claimed by P against D in DCCJ 2850.  It is clear that in DCCJ 2850 P does not seek any relief for the vacating of non-registrable documents in the Land Registry.

10.Mr Gary Lam, for the plaintiff, relied on the decision of Judge Lok (as he then was) in the District Court in Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420 where the judge held that the District Court did not have inherent jurisdiction to vacate the registration of a non-registrable document. 

11.By para (5) of the prayer for relief in the statement of claim in this action, P seeks an order for the vacating of the registration of the 2^nd Notice of Severance in the Land Registry.  Relying on Wong Kum Chi,Mr Gary Lam submitted that the District Court did not have jurisdiction to order the vacating of the registration of the 2^nd Notice of Severance.

12.I have considered all of counsel’s submissions and the authorities relied on.

13.In Wong Kum Chi Judge Lok transferred the action to the High Court as he decided that the District Court did not have jurisdiction to vacate the registration of the non-registrable document in the Land Registry. 

14.The matter then came before Deputy High Court Judge Cheung (as he then was) in the High Court.  In his judgment in Wong Kum Chi v Lee Tit Ying (No 2) [2003] 1 HKLRD 594 Deputy High Court Judge Cheung did not doubt the correctness of the decision of Judge Lok to transfer the action to the High Court.  At para 19 of his judgment he said that:

“ … the proceedings were originally commenced in the District Court; they were transferred to this Court because the District Court does not have jurisdiction to deal with the relief sought.”

15.In Ng Cho Chu Judy Deputy Judge Winnie Tsui, for the reasons she gave, declined to follow Judge Lok’s decision in Wong Kum Chi.

16.Ng Cho Chu Judy and Wong Kum Chi are conflicting decisions both in the District Court.

17.It seems to me that where there are conflicting decisions in the District Court it was reasonable for P to commence this action in the High Court relying on Wong Kum Chi.

18.I would also observe that by para 3 of the strike out summons, D did seek, in the alternative, an order for leave to file and serve her defence within 28 days. It was never suggested by counsel then appearing for D at the hearing of the summons to strike out that this action should have been commenced in the District Court or that this action should be transferred to the District Court.   Pursuant to the judgment dated 10 November 2016 D has in fact filed and served her defence in the High Court.

19.I was also informed that in respect of DCCJ 2850 an application has been made to transfer those proceedings to the High Court and that at a case management conference that application has been adjourned pending the hearing of the summons to vary.  It seems to me that whether this action and DCCJ 2850 should proceed in the High Court or be transferred to the District Court are matters that can be dealt with at a case management conference.

20.I was satisfied that it was reasonable in the circumstances for P to commence this action in the High Court.  As D failed to strike out the statement of claim and to have the action dismissed, costs should follow the event.

21.For the above reasons, I dismissed the summons to vary, with costs to P.  I also ordered that P’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Gary Lam, instructed by Tsangs, for the plaintiff

Mr Justin Lam, instructed by Cheng, Yeung & Co, for the defendant