Formax Finance Ltd v. Wong Mang Kam and Another

HCMP 1/2018

[2018] HKCFI 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1 OF 2018

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Before: Deputy High Court Judge Leung in Chambers

Date of Hearing: 16 May 2018

Date of Judgment: 16 May 2018

Date of Reasons for Judgment: 23 May 2018

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REASONS FOR JUDGMENT

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1.The plaintiff is a money lender, seeking judgment against the 1^st defendant, the borrower, and, in enforcement of the incidental legal charge in respect of the 1^st defendant’s interest in the landed property of the defendants, an order for sale pursuant to the Partition Ordinance, Cap 352. The property is registered in the names of the defendants as equal tenants in common.

2.I was satisfied that the documents in these proceedings have been duly served on the defendants.  Neither defendant has entered appearance.  There being no reason why the plaintiff should be prevented from doing so, I allowed the plaintiff to proceed for summary determination of the matter.  It was only in the course of counsel’s submission when the 1^st defendant appeared in court.  Of course he was late for court.

3.Albeit physically present, and despite explanation by the court of the situation which he was faced with, the 1^st defendant made no application or representation.  The proceedings continued.

4.On the basis of the loan documents and affirmation evidence, I was satisfied that the relevant loan agreement and legal charge dated 25 July 2017 complied with the requirements set out in the Money Lenders Ordinance, Cap 163.  To the extent that they on their face failed to do so, in particular under section 27, the plaintiff conceded and revised the quantum with the effect of reducing the indebtedness of the 1^st defendant.  I accepted that those did not stand in the way of the enforcement of the loan agreement and the legal charge.

5.As such, and according to the evidence, the 1^st defendant is indebted to the plaintiff a total sum of HK$2,184,144.77 plus interest on the sum of HK$2,169,465 at the daily rate of HK$1,129.31 from 14 March 2018 until full payment.

6.On the authorities cited in support, I accepted that the plaintiff was a person entitled to take out the application for an order for sale of the property of the defendants in enforcement of the judgment debt pursuant to the legal charge.

7.The property is a typical apartment in a multi-storey building subject to multi-party co-ownership.  Partition of the property would not be practicable.  The factors set out under section 6 of the Partition Ordinance were considered.  So was the affirmation evidence, including that as to the valuation.  The 1^st defendant’s share of the proceeds of sale, according to the valuation, would be expected to fall short of his debt, but would satisfy a substantial part of it.  The bottom line was that the plaintiff was left with no alternative to enforce its right of recovery.  No circumstance was suggested that would have rendered an order for sale not beneficial to all the persons interested or created hardship.

8.I therefore entered monetary judgment against the 1^st defendant and made an order for sale of the property in question in terms of the written draft order as amended in court.

9.As to costs, the 1^st defendant should be liable for costs of the plaintiff on a solicitors and own client, and thus indemnity, basis pursuant to the legal charge.  Where this application was necessary, and the 2^nd defendant must be entitled to be heard, I did not think the 2^nd defendant, who has not put up any opposition, should be made to bear any costs of these proceedings.  I therefore ordered that the 1^stdefendant should also bear the plaintiff’s costs of these proceedings against both defendants on an indemnity basis.

10.I summarily assessed the above costs at HK$140,000, taking into account the abovementioned contractual scale of costs and the avoidance of costs of overlapping work between solicitors and counsel.

Mr Alvin Tsang, instructed by Philip T F Wong & Co, for the plaintiff

The 1^st defendant appeared in person

The 2^nd defendant was not represented and did not appear