Yau Simon Shik Man and Others v. Yau Shik Yin and Another

HCA 330/2013
[2018] HKCFI 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 330 OF 2013

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Before: Deputy High Court Judge Keith Yeung SC in Chambers

Date of Hearing: 18 January 2018

Date of Decision: 18 January 2018

Date of Reasons for Decision: 18 January 2018

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REASONS FOR DECISION

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1.This is the first hearing of a summons of 7 December 2017 taken out by the 1^st and 2^nd defendants against the 1^st and 2^nd plaintiffs. The summons is not meant to be, and has not been served upon the 3^rd and 4^th plaintiffs. Upon their request, and noting their indication that they would stand neutral to the summons and abide by any order the court will make, the court has excused their attendance.

2.By the summons, the 1^st and 2^nd defendants seek in gist an order to enforce certain terms of an agreed Tomlin Order in relation to the sale of three properties named therein (being Items 14, 15 and 17).

3.The 1^st defendant filed an affirmation of 7 December 2017 in support of the application.  The 1^st plaintiff, on his own behalf and on behalf of the other plaintiffs filed an affirmation in opposition dated 16 January 2018.

4.I will not go into any details of the application.  Suffice for me to say that the background of the matters is not straightforward, and the application is opposed by the plaintiffs.  The issues need to be resolved include whether there has been any breach or non-compliance of the Tomlin Order.  That issue in turn involves:

(1) factual issues, the resolution of which requires the court to go through the parties’ correspondences in some details.  This applies to all three properties; and

(2) issues of interpretation of the terms of the Tomlin Order, and in particular whether any proceeds from the sale of the properties concerned have to be physically paid over or can be settled through a process of adjustments in the parties’ entitlement to the ultimate distribution. 

5.There is further the issue as to what the court can and should order even assuming that there is a breach, and in particular what additional terms which the parties have not agreed upon in the agreed Tomlin can be ordered to be, in effect, inserted and supplemented to by the court.

6.I have considered the parties’ submissions.  This is not a matter that can be satisfactorily dealt with within the allocated time soughtof 30 minutes. I also did not accede to the invitation by Mr Chong, counsel for the 1^st defendant, to deal with separately the part of the application in relation to Item 17.

7.I will adjourn the summons for substantive arguments, with the following directions:

(a) the 1^st defendant be at liberty to file evidence in reply within 14 days from the date hereof;

(b) no further evidence to be filed unless with leave of the court;

(c) the summons be set down for hearing with 2 hours reserved;

(d) further submissions be filed on behalf of the 1^st defendant not later than 7 days before the hearing, and on behalf of the plaintiffs 3 days before hearing.

8.I however make this clear.  The adjournment of this summonsought not to be, and ought not to be seen to be, any impediment towards theperformance of the terms of the Tomlin Order in respect of the disposal of Items 14, 15 and 17 concerned in the meantime.  Afterall, the stance of theplaintiffs is that “there is no dispute between the parties on how the subject 3 properties should be deal with”.  There is no need to suspend further discussions and efforts in those regards pending hearing of the summons.  The summons can always be disposed of by consent, leaving, worst comes to the worst, the issues of costs to be adjudicated upon.

9.Costs reserved.

Mr Ng Man Kin, of Kwok, Ng & Chan, for the 1^st and 2^nd plaintiffs

Mr Patrick Chong, instructed by K B Chau & Co, for the 1^stand 2^nd defendants

Attendance of the 3^rd and 4^th plaintiffs was excused