林永恒是 Stanley Lot 456rp 業主 v. Win Talent Ltd
Read the full judgment text of HCA 889/2019 on BabelCite. This High Court CFI judgment was delivered on 4 December 2019.
1. The plaintiff (“ P ”) claimed he was/is a ⅓ owner of a piece or parcel of land known as the Remaining Portion of Stanley Lot No 456 (“ Lot 456RP ”). The defendant (“ D ”) was a Hong Kong company and its sole director was a French national André Simon Chouraqui. D was/is the registered owner of a piece or parcel of land known as Stanley Inland Lot No 95 (“ Lot 95 ”) at No 120 Stanley Main Street, Hong Kong (“ 120 Address ”).
Cited by 2 cases · Cites 8 cases
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HCA 889/2019 [2019] HKCFI 2941 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 889 OF 2019 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ I. INTRODUCTION 1.The plaintiff (“P”) claimed he was/is a ⅓ owner of a piece or parcel of land known as the Remaining Portion of Stanley Lot No 456 (“Lot 456RP”). The defendant (“D”) was a Hong Kong company and its sole director was a French national André Simon Chouraqui. D was/is the registered owner of a piece or parcel of land known as Stanley Inland Lot No 95 (“Lot 95”) at No 120 Stanley Main Street, Hong Kong (“120 Address”). 2.On 22 May 2019, P issued the Writ of Summons (“WoS”) against D in the present action. P’s Statement of Claim (“SoC”) endorsed on the WoS claimed as follows:
3.P annexed the following documents to the WoS:[1]
4.In a nutshell, P alleged in the WoS/SoC that in September 1997 he purchased from Yung Jim Mei Jimmy ⅓ share of and in Lot 456RP, and to date he remained the owner of such ⅓ share of and in Lot 456RP, so D wrongfully acquired Lot 456RP and as a result he suffered loss for which D was liable. 5.On 31 May 2019, D by YLC filed acknowledgement of service that gave notice of intention to defend (“AS”). The AS expressly stated YLC were the solicitors who acted for D in the present action, and gave YLC’s business address at “Flat 1609, 16th Floor, Tuen Mun Parklane Square, No 2 Tuen Hi Road, Tuen Mun, New Territories, Hong Kong” as D’s address for service (“Service Address”). 6.Order 12 rule 1(1) of the Rules of the High Court Cap 4A (“RHC”) provides that a defendant to an action begun by writ may acknowledge service of the writ and defend the action by a solicitor. Order 12 rule 3(2)(b) of the RHC provides that where the defendant acknowledges service by a solicitor, it must specify the business address of such solicitor, and such solicitor’s business address shall be the defendant’s address for service. Thus, the AS filed by YLC on behalf of D gave the Service Address as D’s address for service. The AS was sufficient evidence of YLC’s authority to act for D in the present action, and I am of the view that YLC was not required to produce for P’s inspection any letter of authorisation from D. 7.As explained above, P had to serve documents in the present action on D at the Service Address and not at D’s registered office. If P chose not to do so and instead purported to serve documents in the present action on D at its registered office, then such purported service of documents would be irregular and ineffective service. 8.On 31 May 2019, D also filed a summons (“Summons”) under Order 18 rule 19 and Order 3 rule 5 of the Rules of the High Court (“RHC”) and also the inherent jurisdiction of the court for the following reliefs:
9.On the same day, D filed the affirmation of its solicitor Yeung Yun Por (“Yeung”) in support of the Summons (“Yeung Aff”). 10.On 5 June 2019, D filed an affirmation of service by YLC’s clerk Chow Wai Ming (“Chow”) that verified service on P of copy AS, Summons (with Chinese translation), Yeung Aff (with Chinese translation) and YLC’s covering letter dated 3 June 2019 (“Chow 1st Aff”). P countersigned YLC’s letter dated 3 June 2019 to acknowledge receipt of the aforesaid documents. On 14 June 2019, D filed a further affirmation of service by Chow (“Chow 2nd Aff”) that verified service on P of inter alia (a) copy Summons (to replace the copy served on 3 June 2019 which contained a typographical error in that P’s name was erroneously stated as “恆” instead of “恒”)[2] and (b) YLC’s covering letter dated 13 June 2019 by insertion into the letterbox at P’s address for service. 11.At the 1st hearing of the Summons on 18 June 2019 (“1st Hearing”), DHCJ K Wong granted the following order (“Wong Order”):
12.On 21 June 2019, YLC served copies of Chinese translation of the Summons and Yeung Aff and also YLC’s Chinese covering letter dated 21 June 2019 that set out the terms of the Wong Order, and P countersigned such covering letter to acknowledge receipt of the aforesaid documents. 13.On 27 June 2019, YLC wrote to P stating that:
14.As explained in paragraphs 6-7 above, I am of the view that P was not entitled to demand sight of any letter of authorisation by D to YLC, and instead P was obliged to recognise YLC as D’s solicitors as set out in the AS. Thus, the documents referred to in paragraph 13(a) above were deemed to have been served on P. 15.In the meantime, on 19, 20 and 24 June and 3 July 2019, P submitted various documents to the court ostensibly with a view to place them before DHCJ K Wong (“Documents”), but they were not formally exhibited to any affirmation and/or filed via the court registry. Thus, the Documents did not amount to any affirmation in opposition prescribed by the Wong Order (see paragraph 11(a) above). 16.On 3 July 2019 (ie prior to the prescribed deadline in paragraph 11(a) above), P filed his affirmation to oppose the Summons (“P 1st Aff”) pursuant to the Wong Order. On 15 July 2019, the court’s listing office fixed the adjourned hearing for argument in respect of the Summons to be heard on 21 November 2019 (“2nd Hearing”). 17.On 30 July 2019, I gave written directions in relation to the Documents inter alia as follows:
18.Subsequently, on 28 October and 8 November 2019, P filed 2 further affirmations presumably to oppose the Summons (“P 2nd and 3rd Affs”), but they were filed after the prescribed deadline in the Wong Order (see paragraph 11(a) above) and without leave of the court:
19.D did not file/serve any affirmation in reply. Shortly before the 2nd Hearing, YLC lodged with the court the hearing bundle for use at the 2nd Hearing (“Hearing Bundle”). It transpired inter alia that (a) P had served the purported or so-called 1st ASoC on D/YLC, (b) the Documents were included in section E of the Hearing Bundle, and (c) the P 2nd and 3rd Affs were not found in the Hearing Bundle. 20.The amendments marked in red in the purported or so-called 1st ASoC were as follows:
21.On 15 November 2019, I gave written directions to both parties as follows:
22.On 19 November 2019, P filed his 4th affirmation that stated “本人再深入研究後，發覺需要第二次修改證物1至4頁”, and attached revised draft Amended Statement of Claim, which took into account the purported amendments in paragraph 20 above, and which added the following in red and not in green:
23.On 18 November 2019, P lodged with court a purported summons that was undated and not filed with the court registry but marked “給高等法院聆案官J NG”. The purported summons was allegedly marked returnable at the 2nd Hearing for an order “批准原告人第二次修改他的傳訊令狀連申索陳述書如附件綠色部份所顯示”. The attachment was a draft Re-Amended Statement of Claim with (a) the proposed amendments in the 1st ASoC marked in red, (b) the further proposed amendments in the attachment to the P 4th Aff (see above paragraph) marked in green, and (c) the following underlined amendments also marked in green:
The draft revised Amended Statement of Claim exhibited to the P 4th Aff and the draft Re-Amended Statement of Claim attached to the above purported summons are collectively referred to as the purported and so-called “2nd ASoC”. 24.The Summons came before me for argument at the 2nd Hearing on 21 November 2019, but the purported summons in the above paragraph could not have been and was not before me at the 2nd Hearing. P was self-represented. Mr Mak, counsel for D, had no objection for (a) the court to consider the purported or so-called 1st ASoC and/or 2nd ASoC on de bene esse basis, and (b) P to rely on the P 2nd, 3rd and 4th Affs for the purpose of opposing the Summons. II. LOT 456RP AND LOT 95 25.Records of the land searches in respect of Lot 456RP made on 12 February 2019 (annexed to the WoS), 27 May 2019 (exhibited to the Yeung Aff) and 5 August 2019 (exhibited to the P 2nd Aff) (“456RP Records”), various documents annexed to the WoS and those exhibited to the Yeung Aff and the P 2nd and 3rd Affs set out the chain of title in respect of Lot456RP. 26.According to the recitals of the Partition Deed, (a) by a Block Lease dated 31 May 1934 (“Block Lease”) the government demised Lot 456 to Yung Shau Nin, Yung Hok Ming and Yung Kwai Shang, and (b) by an Assignment dated 21 January 1941, Yung Shau Nin assigned unto Kwok Mui his ⅓ share of and in Lot 456 “and of and in the messuages and buildings thereon then known as House No.120 Stanley aforesaid” (ie the 120 Address which was then a stone house) for the residue of the Block Lease. 27.According to the Partition Deed dated 18 November 1941, Yung Hok Ming and Yung Kwai Shang of the one part and Kwok Mui of the other part agreed to partition and divide Lot 456 into 2 portions, ie Lot 456A and Lot 456RP, in the following manner:
28.Thus, as reflected in the 456RP Records, (a) Lot 456 (which comprised the subsequent subdivided Lot 456A and Lot 456RP) was initially owned by Yung Shau Nin, Yung Hok Ming and Yung Kwai Shang as tenants-in-common in equal shares, (b) Kwok Mui acquired Yung Shau Nin’s ⅓ share of and in Lot 456 (which comprised the subsequent subdivided Lot 456A and Lot 456RP), (c) Lot 456RP came into existence pursuant to the Partition Deed, and (d) pursuant to the Partition Deed Kwok Mui ceased to have any share/interest in Lot 456RP which became owned by Yung Hok Ming and Yung Kwai Shang as tenants-in-common in equal shares. 29.According to the Yung Kwai Shang LA registered at the Land Registry, Yung Kwai Shang passed away on 2 April 1942, but Yung Ming Kwong was only appointed as administrator of the estate of Yung Kwai Shang, deceased more than 30 years later on 6 May 1976. The schedule of property in the Yung Kwai Shang LA comprised “1/2nd part or share of and in The Remaining Portion of Stanley Lot No.456 (120, Main Street, Stanley)” (ie ½ share of and in Lot 456RP and 120 Address). 30.As seen in the 456RP Records, by an Assent dated 18 March 1980, Yung Ming Kwong became the owner of ½ share of and in Lot 456RP as tenant-in-common with Yung Hok Ming. 31.According to the 456RP Records, by an Assignment dated 22 September 1990, Yung Hok Ming assigned his ½ share of and in Lot 456RP to Litmond Development Limited (“Litmond”). So Litmond and Yung Ming Kwong owned Lot 456RP as tenants-in-common in equal shares. 32.The 456RP Records showed Yung Ming Kwong subsequently passed away, and by Letters of Administration granted on 8 November 1994 Yung Jim Mei Jimmy became the administrator of the estate of Yung Ming Kwong, deceased, which estate included ½ share of and in Lot 456RP. 33.By an Assignment dated 8 July 1995 and registered at the Land Registry on 26 January 1996, Yung Jim Mei Jimmy assigned to P his ½ share of and in Lot 456RP and 120 Address for a consideration of $250,000. According to the 456RP Records, by an agreement for sale and purchase dated 16 September 1996 and registered at the Land Registry on 14 October 1996 and by an Assignment dated 7 November 1996 and registered at the Land Registry on 27 March 1997, P re-assigned to Yung Jim Mei Jimmy his ½ share of and in Lot 456RP and 120 Address for a consideration of $250,000. By this stage, Lot 456RP and 120 Address were co-owned by Litmond and Yung Jim Mei Jimmy as tenants-in-common in equal shares. 34.By an agreement for sale and purchase and an Assignment both dated 8 July 1997 and registered at the Land Registry on 13 September 1997, Yung Jim Mei Jimmy re-assigned to P his ½ share of and in Lot 456RP “[together] with the messuages erections and buildings thereon now known as HOUSE NO.120 STANLEY” (ie 120 Address) for a consideration of $250,000. P admitted this in the chronology of events found at pages 69-70 of the exhibit to the P 3rd Aff (“Chronology”) (save that P alleged such sale and purchase was on 31 instead of 8 July 1997). 35.According to the 456RP Records, P made statutory declaration of lost title deeds and documents “RE HOUSE NO.120 STANLEY OF ½ SHARE” on 5 January 1999, and such statutory declaration was registered at the Land Registry on 29 January 1999. 36.By an agreement for sale and purchase and an Assignment both dated 31 May 2000 and registered at the Land Registry on 22 June 2000, Litmond assigned to P its ½ share of and in Lot 456RP for a consideration of $2,000,000. P admitted this in the Chronology. By this stage, P became the sole owner of Lot 456RP “[together] with the messuages erections and buildings thereon now known as HOUSE NO.120 STANLEY” (ie 120 Address). 37.By an agreement for sale and purchase and an Assignment (“P / Good Ascent 2001 Assignment”) both dated 13 July 2001 and registered at the Land Registry on 3 August 2001 by memorials nos UB8451825 (agreement for sale and purchase) and UB8451832 (P / Good Ascent 2001 Assignment) respectively, Good Ascent acquired from P (and hence became the owner) of Lot 456RP “[and] of and in the messuages erections and buildings thereon now known as HOUSE NO.120, STANLEY” (ie 120 Address) for a consideration of $3,000,000. P referred to this in the Chronology. Indeed, by a letter dated 21 June 2019 to P (page 52 of the exhibit to the P 2nd Aff), the District Lands Office confirmed that on 13 July 2001 P as then owner assigned Lot 456RP to Good Ascent. Further, in a letter dated 5 July 2019 to P (pages 49-50 of the exhibit to the P 2nd Aff), the Land Registry confirmed that Lot 456RP (Property Reference Number (“PRN”) no C4741439) was assigned to Good Ascent on 13 July 2001, and K M Lai & Li submitted such Assignment (memorial no UB8451832) to the Land Registry for registration. 38.According to the Companies Registry records, P was a director and shareholder of Good Ascent at the time when he assigned Lot 456RP and 120 Address to Good Ascent (see above paragraph). Indeed, P was a first director of Good Ascent, and a subscriber to its memorandum and articles of association. The other director, shareholder and subscriber was Ting who was also the company secretary. It was only on 22 April 2002 that P ceased to be a director of Good Ascent and was replaced by So Pui Ching (“So”). According to the 1st annual return of Good Ascent filed on 28 June 2002, P became a shareholder of 5,100 shares (5,099 shares allotted on 5 June 2001 and 1 subscriber share) and Ting became a shareholder of 4,900 shares (4,899 shares allotted on 5 June 2001 and 1 subscriber share) since 5 June 2001, but P ceased to be a shareholder of Good Ascent on 22 April 2002 (when P also ceased to be a director of Good Ascent) by transferring 5,099 shares to Ting and 1 share to So. Thus, P left Good Ascent (whether as director or shareholder) on 22 April 2002. 39.By Deed of Surrender dated 20 October 2004 and registered in the Land Registry on 26 October 2004 (“Surrender Deed”), Good Ascent surrendered to the government Lot 456RP (delineated and described on the plan annexed thereto (“Surrender Plan”) and thereon shown coloured blue) “together with all messuages erections structures and buildings (if any) on the said piece or parcel of ground” for the residue of the term and interest created by the Block Lease under which such premises were held in exchange for the grant to Good Ascent of “a piece or parcel of ground to be known and registered in the Land Registry as Stanley Inland Lot No 95” (ie Lot 95). 40.By Conditions of Exchange No 12665 in respect of “STIL No 95” dated 20 October 2004 and registered at the Land Registry on 26 October 2004 (“Exchange Conditions”), the government for premium paid in the sum of $630,000 granted to Good Ascent Lot 95 located at Stanley Main Street, Stanley, Hong Kong as delineated and shown coloured pink on the plan annexed thereto (“Exchange Plan”) for a term of 50 years in exchange for the surrender to the government of Lot 456RP located at 120 Stanley Main Street, Stanley, Hong Kong described in the Surrender Plan coloured blue. The grant/demise of Lot 95 under the Exchange Conditions were subject to the General and Special Conditions therein, and the Special Conditions prescribed the formation of the Green Area which was coloured green in the Exchange Plan. 41.By reason of Good Ascent’s surrender of Lot 456RP to the government under the Surrender Deed in exchange for the grant of Lot 95 by the government to Good Ascent under the Exchange Conditions, Lot 456RP’s legal existence came to an end, and the Block Lease insofar as concerned Lot 456RP was discharged, so any interest Good Ascent had (or P previously might allegedly have had) over Lot 456RP was extinguished upon such surrender and exchange. This was borne out by:
42.By reason of the aforesaid surrender of Lot 456RP such that the last owner of Lot 456RP was the government (see the 456RP Records) in exchange for the grant of Lot 95 (see copy printout of the land search made on 24 May 2019 for Lot 95 exhibited to the Yeung Aff, “95 Records”), Lot 456RP ceased to have any legal existence, so although Lot 95 retained the same street number of 120 Stanley Main Street, Stanley, Hong Kong (see the 95 Records) as that for Lot 456RP, there was no overlap and at any particular point of time the 120 Address was either the location address of Lot 456RP or the location address of Lot 95 but not both. According to the 95 Records, Good Ascent was the 1st owner and D was the 2nd and current owner of Lot 95, and P’s name never appeared in the 95 Records. P’s pleadings and/or affirmation evidence did not reveal any written instrument that evidenced any ownership/title over Lot 95 by P. Bearing in mind Lot 456RP was different and separate from Lot 95, and Good Ascent was different and separate from P, it was plain P had no title, share or interest in Lot 95 or any part thereof. 43.The 95 Records showed Good Ascent as borrower/mortgagor entered into the 1st building legal charge dated 7 December 2004 (for $3,500,000) (“1st Building Legal Charge”) and the 2nd and 3rd all-moneys building legal charges both dated 28 December 2005 (“2nd and 3rd Building Legal Charges”) with Wing Hang Bank Limited (“WHBL”), which building legal charges were registered with the Land Registry on 5 February 2005, 13 January 2006 and 13 January 2005 respectively. 44.The 95 Records also showed Good Ascent gave a Letter of Undertaking to the Buildings Department (“BD”) on 13 October 2006, and such Letter of Undertaking (exhibited to the P 3rd Aff)[3] was registered with the Land Registry on 24 July 2007. The 95 Records revealed another Letter of Undertaking dated 13 July 2007 to the BD that was registered with the Land Registry on 24 July 2007. 45.In my view, P knew of the above developments because P confirmed and admitted the following in a bilingual document titled “Statement of Claim” at pages 16-19 of the exhibit to the P 2nd Aff (“Claim Document”):
46.By an all-moneys Mortgage dated 31 March 2008 and registered at the Land Registry on 23 April 2008 (“Mortgage”), in consideration of HSBC granting general banking facilities to Good Ascent (pursuant to a facility letter dated 31 March 2008 signed by Good Ascent – see the Chronology), Good Ascent as beneficial owner charged and assigned Lot 95 “And of and in the messuages erections and buildings thereon now known as No 120 Stanley Main Street, Stanley, Hong Kong” (ie 120 Address) to HSBC subject to the proviso for redemption. 47.Clause 5 of the Mortgage provides inter alia that the following would be events of default:
48.Clause 6 of the Mortgage provides inter alia that if any event of default shall have occurred, then HSBC as lender and mortgagee could without any consent on the part of Good Ascent or of any person enter into and take possession of the mortgaged property and/or sell the same “free from the Charge and any other estates, interests and rights to which this Charge has priority, with full power to sell the Property or any interest therein …… either by public auction or tender or private contract and partly by one of such methods of sale and partly by any other one or more of such methods of sale ……” (my emphasis). 49.The 95 Records showed the 1st, 2nd and 3rd Building Legal Charges in favour of WHBL were discharged on the same day as the Mortgage (ie 31 March 2008), and the receipts on discharge of the 1st, 2nd and 3rd Building Legal Charges were registered with the Land Registry on the same day as the date when the Mortgage was registered (ie 23 April 2008). It therefore appeared that the banking facilities HSBC granted to Good Ascent pursuant to the Mortgage were at least partly used to settle the outstanding amount of the building loans under the 1st, 2nd and 3rd Building legal Charges. 50.By the Claim Document, P went on to claim as follows:
51.But P gave a somewhat different account of the above events in 2006 in the Chronology against the date of “31 March 2008” (my emphasis):
52.P’s above account showed Good Ascent borrowed 3 building loans from WHBL pursuant to the 1st, 2nd and 3rd Building Legal Charges for building a new house at Lot 95 (at 120 Address), which building loans were eventually repaid from banking facilities granted by HSBC and secured by the Mortgage over Lot 95 (and 120 Address). 53.But P’s other assertions in paragraphs 50 and 51 above could not be supported and were in fact contradicted by the documents registered at the Land Registry and Companies Registry:
54.In light of the above analysis, I find it unsurprising that HSBC and the regulatory authorities did not entertain P’s complaints which I find to have no merit, at least insofar as might concern D. 55.According to the 95 Records, D acquired Lot 95 pursuant to mortgagee sale by HSBC as mortgagee under the Mortgage by way of private treaty for a consideration of $27,500,000. As seen in paragraph 102 below, Good Ascent was wound up by the court on 11 January 2010. This amounted to an event of default under the Mortgage (see paragraph 47(c) above), which therefore triggered HSBC’s exercise of its powers under the Mortgage (see paragraph 48 above). 56.Section 186 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap 32 (“CO”) provides that “[when] a winding-up order has been made, or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court, and subject to such terms as the court may impose”. 57.On 10 November 2010, Master Hui granted an order by consent between HSBC and the solicitors for the joint and several liquidators of Good Ascent that notwithstanding the winding up order against Good Ascent (pages 1-6 of the exhibit to the P 2nd Aff) (see paragraph 102 below), leave was granted for HSBC to commence mortgage action against Good Ascent (ie the Intended Mortgage Action) “for possession of the mortgaged property known as No.120 Stanley Main Street, Hong Kong (“the Mortgaged Property”) and for payment of all sums due to and secured by [the Mortgage] in respect of the Mortgaged Property subject to the following conditions:- (a) No judgment or order obtained by [HSBC] as plaintiff in the Intended Mortgage Action (other than judgment or order for possession of the Mortgaged Property) shall be enforced against [Good Ascent] without the leave of the court; and (b) [HSBC] shall not apply for any order for costs personally against the Official Receiver or the Joint and Several Liquidators of [Good Ascent] in the Intended Mortgage Action”. A copy of such order was exhibited as pages 13-14 of the exhibit of the P 2nd Aff. 58.HSBC subsequently commenced mortgage action HCMP2376/2010 against Good Ascent (in liquidation) under Order 88 of the RHC. On 4 January 2011, Master Lai granted the following order (pages 10-12 of the exhibit to the P 2nd Aff):
59.The sealed copy of such order made by Master Lai on 4 January 2011 showed such order was sealed and filed on the following day, ie 5 January 2011. But in the Chronology in relation to the date of “4 January 2010” it was stated that “HCMP2376/2010, 原告人[HSBC], 被告人[Good Ascent]( 在清盤中) 內容說: [Good Ascent]同[HSBC] 簽借款合約2008-3-31日, 簽說[Good Ascent] 欠銀行10.300.000, 所以銀行不公開拍賣赤柱地段95號, 在2018年11月6日聆案官黎達祥書記符卓穎給[P] 的信說, 法庭記錄2011年1月4日並沒有聆訊於黎達祥聆案官前審理, 銀行用虛 ……” In my view, this was incorrect because the letter dated 6 November 2018 from Master Lai’s clerk (see page 8 of the exhibit to the P 2nd Aff) stated that “根據法庭記錄, 2011年1月5日並沒有聆訊於黎達祥聆案官前審理。再者, [P] 和[林雪梅女士]並非本案的與訟方。如有任何查訊, 應向案件的與訟方提出”. It was plain the court only confirmed there was no court hearing on 5 January 2011, but the aforesaid order was granted at the hearing on 4 January 2011 by Master Lai after hearing submissions from solicitors for HSBC and Good Ascent. 60.In the Claim Document, P made the following allegation:
I disagree P was still a shareholder of Good Ascent in 2010. In fact, he ceased to be such shareholder on 22 April 2002 (see paragraph 38 above). Since P was by then neither a director nor a shareholder of Good Ascent, whether he was notified of the legal proceedings in HCMP2367/2010 and/or the order made by Master Lai on 4 January 2011 was neither here nor there. 61.HSBC obviously recovered vacant possession of Lot 95 (120 Address) pursuant to the order by Master Lai dated 4 January 2011 because HSBC eventually sold Lot 95 by way of mortgagee sale. By a provisional agreement for sale and purchase dated 27 February 2012 (“PASP”) and a formal agreement for sale and purchase dated 15 March 2012 (“FASP”) made between HSBC as vendor and D as purchaser, HSBC as mortgagee agreed to sell and D agreed to buy “Stanley Inland Lot No.95 (No.120 Stanley Main Street, Hong Kong)” for the agreed price of $27,500,000. The PASP and FASP were registered at the Land Registry on 16 March and 10 April 2012. 62.By an Assignment dated 16 April 2012 executed by HSBC as vendor “in exercise of the power of sale conferred on it by the Mortgage and of all other enabling powers (if any)” and D as purchaser (“Assignment”), HSBC assigned to D Lot 95 “Together with the messuages erections and buildings thereon now known as No 120 Stanley Main Street, Stanley, Hong Kong” to hold the same unto D for the residue of the term of years created by the Exchange Conditions “FREED AND ABSOLUTELY DISCHARGED of and from all rights or equity of redemption and of and from all claims and demands whatsoever under the Mortgage ……” The Assignment was registered at the Land Registry on 11 May 2012. D was therefore the present owner of Lot 95. III. P’s BANKRUPTCY 63.According to the bankruptcy search record dated 24 May 2019 in respect of P that was obtained by YLC from the Official Receiver’s Office (“ORO”), a bankruptcy order was made against P on 25 April 2007, but such bankruptcy order was discharged on 25 October 2011. However, a 2nd bankruptcy order was made against P in HCB1052/2015 on 11 May 2015, and P was presently an undischarged bankrupt. P admitted as much in the draft 2nd ASoC (see paragraph 22 above) and at the 2nd Hearing before me. The Official Receiver (“OR”) was the trustee-in-bankruptcy in respect of P’s property. 64.As seen in paragraph 122 below, P previously commenced legal action against D in HCA1180/2018. On 25 June 2018, P wrote to the ORO to enquire inter alia whether the OR had given approval to P to commence HCA1180/2018. On 10 July 2018, the ORO replied to confirm that the OR as the trustee-in-bankruptcy of P’s property had not given consent to P to commence HCA1180/2019 against D, and would not give retrospective approval and would not join in or bear legal costs of such proceedings unless P could demonstrate to the OR’s satisfaction that his claim was meritorious and there was adequate funding to cover her costs and any adverse costs that might be ordered against the OR in the proceedings. 65.On 29 May 2019, YLC wrote to the ORO to enquire inter alia whether the OR had given approval for P to commence the present action against D. As at the date of the Yeung Aff, the reply from the ORO was pending. Subsequently, the ORO replied by letter dated 10 June 2019 (“OR Letter”) to confirm that the OR as the trustee-in-bankruptcy of P’s property had not given any consent or approval for P to commence or continue the present action, and that the OR would not give any such consent or approval (whether retrospective or not) unless she was satisfied (a) that P’s claim was meritorious and (b) there was sufficient funding or full/effective indemnity to cover her costs in such proceedings and any adverse costs that might be ordered against her in such proceedings if P’s claim was unsuccessful. In such circumstances, the OR confirmed she would not adopt the present action or bear any legal costs of the present action. IV. P’s LOCUS STANDI 66.Where a claimant has no locus standi to bring his claim as framed by him, the court will not allow the action to proceed and debate on the merits of his claim. 67.Turning to P’s claim in the present action, the essential basis of such claim rested in the following matters: (a) P was/is all along the owner of ⅓ share or interest of and in Lot 345RP, and (b) he claimed damages for injury to his ⅓ share or interest of and in Lot 456RP. As for the purported or so-called 1st ASoC, its essential basis was the same as (a)-(b) above with added claim that the mortgagee sale by HSBC was defective, void and liable to be set aside as such sale was by private treaty and not by public auction (see paragraph 20(b) above). 68.Turning further to the purported draft 2nd ASoC, it was inherently inconsistent as on one hand it alleged P acquired ⅓ share of and in Lot 456RP from Yung Jim Mei Jimmy in September 1997 and on the other hand it alleged P acquired ½ share of and in Lot 456RP from Yung Jim Mei Jimmy on 8 July 1997. But the proposed further amendments in the draft 2nd ASoC acknowledged P acquired ½ share of and in Lot 456RP from Yung Jim Mei Jimmy on 8 July 1997 and ½ share of and in Lot 456RP from Litmond on 31 May 2000 (see paragraphs 22-23 above). The essential basis of the further amendments in the revised draft 2nd ASoC were:
69.Section 58 of the Bankruptcy Ordinance Cap 6 (“BO”) provides as follows:
70.The right of action in paragraph 67(b) and 68(c) above was a chose in action. Section 2 of the BO defines “property” as including “money, goods, things in action, land and every description of property, whether real or personal …… and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined” (my emphasis). 71.Thus, even on P’s claim, his alleged title, share and interest in Lot 456RP and his right of action being a chose in action were his properties / assets that came within his bankruptcy estate, and hence were vested in the OR as the trustee-in-bankruptcy of the property of P as an undischarged bankrupt. 72.In considering section 58 of the BO, Kwan JA (as she then was) in Cheung Wing Kwan Tommy v Hong Kong Export Credit Insurance Corp held as follows:[4]
73.The Annotated Ordinances of Hong Kong – Bankruptcy Ordinance (Cap 6) also explains as follows:[5]
74.I have no difficulty in accepting that P’s present action (whether as presently pleaded or as per the 1st ASoC and/or 2nd ASoC) was a chose in action within the meaning of section 2 of the BO and was vested in the OR as the trustee-in-bankruptcy under section 58 of the BO. In such circumstances, P had no right to even bring his pleaded claim because on his own case both his alleged ⅓ or ½ share or interest of and in Lot 456RP (if any) and his chose in action being the right to sue would have become vested in the OR as his trustee-in-bankruptcy upon his being adjudicated bankrupt in 2015. P is now an undischarged bankrupt, but such properties would not revert to P even upon his eventual discharge from bankruptcy. P’s bare assertion at the 2nd Hearing that his bankruptcy could not affect his right to claim in respect of his alleged property rights was wrong. In short, P was the wrong party to commence the present action. In my view, P’s claim must be struck out because on its best pleaded basis P has no right to sue at all. 75.I have also considered P’s purported or so-called 1st ASoC or purported revised draft in the 2nd ASoC on de bene esse basis, which would not in any way affect or alter the above analysis and conclusion. After all, P’s claim under the purported 1st and/or 2nd ASoC still claimed for damages arising from his alleged share or interest of and in Lot 456RP, and such claim was a chose in action being property within the meaning of section 2 of the BO that became vested in the OR as the trustee-in-bankruptcy of P’s property. 76.Thus, it was only the OR as the trustee-in-bankruptcy who could have commenced the present action. There was nothing in the BO that would allow a bankrupt or even ex-bankrupt to start or continue legal action on his own without consent or approval by the OR as trustee-in- bankruptcy. Being an undischarged bankrupt, the burden was on P to show he had the OR’s consent or approval to start or commence the present action, but he failed to do so. It was quite insufficient for P to make the assertion, as he did at the 2nd Hearing, that the OR had not prohibited him for commencing the present action. There was simply no evidence that the OR allowed P to do so. Indeed, in the revised draft 2nd ASoC, P admitted he was presently an undischarged bankrupt, and hence he was unable to challenge the P / Good Ascent 2001 Assignment, let alone the Exchange Conditions and the mortgagee sale to D. So even without reference to or reliance on the OR Letter in paragraph 65 above, P’s claim was plainly liable to be struck out. The OR Letter merely made the position abundantly clear and obvious. I therefore order P’s claim to be struck out for want of locus standi. 77.As P could not even cross this first hurdle, there was no need to even consider whether or not his present claim in the SoC or his proposed claim by the 1st ASoC and/or 2nd ASoC had any merits. However, for completeness, I proceed to briefly deal with the other bases of D’s application to strike out P’s claim. V. STRIKING OUT APPLICATION (a) Legal principles 78.The Summons was made pursuant to Order 18 rule 19(1) of the RHC and inherent jurisdiction of the court. The principles governing striking out applications are well established. Hong Kong Civil Procedure 2020 states as follows:[6]
But the fact a question of law appears difficult/obscure does not necessarily preclude the court from striking out a claim if it is satisfied it has all the necessary information to decide the question, and has come to the conclusion after full argument in the face of all relevant information that the case is plainly and obviously one for striking out. In such circumstances, the court “should not decline to do so on the ground that the issues are difficult or complicated”.[7] 79.In respect of the ground of no reasonable cause of action, a reasonable cause of action means “a cause of action with some chance of success when only the allegations in the pleading are considered …… So long as the statement of claim or the particulars …… disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out …….”[8] 80.In respect of the ground that the plea was frivolous or vexatious, Hong Kong Civil Procedure 2020 states that:[9]
81.As regards “abuse of the court’s process”, the court must be used bona fide and properly, and must not be abused. The court will prevent the improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.[11] (b) Discussion 82.From the account in Part IV above, P ceased to have any title, share or interest in Lot 456RP upon sale of the same to Good Ascent in 2001, and P never had any title, share or interest in Lot 95. 83.P very recently by the P 4th Aff and the revised draft 2nd ASoC purported to challenge the P / Good Ascent 2001 Assignment on the basis that (a) he would not have sold Lot 456RP for a low price of $3,000,000, (b) he intended to sell ½ share of and in Lot 456RP acquired from Litmond, and (c) he did not receive the consideration of $3,000,000 at all. 84.Such bare allegations did not stand up to scrutiny even on the striking out threshold. First, P was the vendor and Good Ascent was the purchaser. At that time, P and Ting were the directors of Good Ascent. P did not dispute he signed the P / Good Ascent 2001 Assignment as vendor and/or as a director of the purchaser. Indeed, in the Claim Document and Chronology, P emphasised the P / Good Ascent 2001 Assignment contained both his and Ting’s signatures. In my view, P could not have been unaware that such Assignment was in respect of the entire Lot 456RP. 85.Secondly, the P / Good Ascent 2001 Assignment expressly stated the assignment of Lot 456RP from P to Good Ascent was “IN CONSIDERATION of the sum of DOLLARS THREE MILLION (HK$3,000,000.00) Hong Kong Currency paid by the Purchaser [ie Good Ascent] to the Vendor [P] (receipt whereof is acknowledged) ……” (my emphasis). Plainly, P as vendor had signed the P / Good Ascent 2001 Assignment to acknowledge receipt of the consideration of $3,000,000. 86.Thirdly, even if P had not received the consideration of $3,000,000 in 2001, it was far too late and outside the limitation period for P to now raise any contractual or property claim to set aside the P / Good Ascent 2001 Assignment. 87.Fourthly, as explained in Part IV above, if the alleged cause of action had any vitality (which I disagree), such cause of action being a chose in action would have been vested in the OR, and P personally had no cause of action now and/or even upon his eventual discharge from bankruptcy. 88.Fifthly, as explained in paragraphs 94-97 below, irrespective whether P had any cause of action against Good Ascent (which I doubt since it had been wound up) and/or HSBC, P had no viable claim against D who acquired Lot 95 (not Lot 456RP which no longer legally exist) via mortgagee sale. 89.In light of the account of chain of title in respect of Lot 456RP and Lot 95 in Part II above, P’s claim that he had and still has ⅓ (or ½) share or interest in Lot 456RP was plainly misleading and wrong:
90.Further, as from 22 April 2002, P was no longer any director or shareholder of Good Ascent (see paragraph 38 above). 91.Thus, since 2001/2002 or at the latest since 2004, P had no title, share or interest in Lot 456RP. Indeed, P could not have any present title, share or interest in Lot 456RP which had no present legal existence. There was no arguably credible basis for P to assert, as he did at the 2nd Hearing, he was still owner or part owner of Lot 456RP. In my view, P had no reasonable cause of action herein to sue in the capacity as owner of Lot 456RP. 92.Next, P’s pleaded claim (whether on the basis of the SoC or the purported or so-called 1st ASoC or 2nd ASoC) to any title, share or interest in Lot 456RP was premised on alleged sale of such ⅓ or ½ share of and in Lot 456RP to him by Yung Jim Mei Jimmy in September 1997 or July 1997 for a consideration of $250,000. But, subsequently in 2001, P sold all his title, share or interest in Lot 456RP to Good Ascent with the P / Good Ascent 2001 Assignment registered at the Land Registry (see paragraph 37 above). The above-described chain of title was by written conveyancing instruments and/or title deeds that were actually registered at the Land Registry, and P would be bound by the same. 93.Turning to the P 1st Aff, it was specious for P to ask D to demonstrate that Lot 456RP had been exchanged for Lot 95 when he was obviously well aware of the same:
94.It was true that P did not sell Lot 95 to D (because he was not the owner and had no interest in Lot 95). But there was no basis for P to question the mortgagee sale of Lot 95 to D for which D paid $27,500,000 to HSBC. First, the Mortgage signed by Good Ascent permitted sale by private treaty, so HSBC could not be faulted for not selling Lot 95 by public auction. Thus, such sale by private treaty and not by public auction could not be said to be “私相授受交易” or “不合法交易”, and I disagree that on such basis “[D]在STANLEY LOT 456RP (1/3) 的業權有嚴重瑕疵, 應被宣佈為無效”. D’s title to Lot 95 could not be faulted on such basis. 95.Secondly, the Conveyancing and Property Ordinance Cap 219 (“CPO”) provides as follows:
96.On such basis, whatever title or interest P might have had in Lot 95 (albeit none had been shown), it would have become null and void against D’s title to Lot 95 acquired under the mortgagee sale, and at best P’s claim (if any) would be against HSBC as the mortgagee exercising the power of sale under the Mortgage and not against D. This conclusion is borne out by the authorities in the paragraph below. In fact, it was doubtful whether P could have any claim against any party at all since he had no title or interest in Lot 95 (and the former owner/mortgagor of Lot 95 was Good Ascent and not P), and P’s ownership/interest in Lot 456RP had ceased and/or extinguished on sale of such property to Good Ascent in 2001 and on surrender of such property to the government in 2004. But it would be sufficient for the present case that P as alleged owner of Lot 456RP had no cause of action against D. 97.In Lo Tai Yam v Hu Mu Simon & anor,[12] Stone J at page 593 said “….. it seems to me that this point is very strong in itself, in that s.52 [of the CPO] provides specific statutory protection for the purchaser when a sale is made under a mortgage ……” In China Citic Bank International Limited v Durrant Simon Patrick Michael,[13] which also concerned a mortgagee exercising its power of sale under a mortgage to effect mortgagee sale of the mortgaged property, at paragraph 116 of the judgment I explained that whilst the purchaser of the mortgaged property under a mortgagee sale would be bound by prior encumbrances other than “the mortgage under which the sale is made and other subsequent mortgage”, “I am unable to see how the purchaser agreeing to take subject to encumbrances in relation to the Property would cause any loss to the plaintiff as ex-mortgagor who no longer had interest in the Property and was only left with potential interest in the ultimate residue of the Surplus (if any) under section 54 of the CPO”. 98.In the circumstances, quite apart from the lack of locus standi, P’s claim as presently pleaded had no arguable merits and is liable to be struck out. 99.As regard the proposed amendments to the SoC by the purported or so-called 1st ASoC and/or by the revised draft 2nd ASoC, Hong Kong Civil Procedure 2020 states inter alia as follows:[14]
100.In Total Lubricants Hong Kong Limited & ors v Christophe de la Cropte de Chanterac & ors, Poon J (as he then was) said as follows:[15]
101.For the reasons analysed and discussed above, such proposed amendments are incapable of salvaging P’s claim, and in such circumstances. P’s claim must be struck out. VI. ABUSE OF PROCESS AND RESTRICTED PROCEEDINGS/ APPLICATION (a) Winding up Good Ascent 102.The P 2nd Aff exhibited a winding up order against Good Ascent made by Au J (as he then was) on 11 January 2010 in HCCW625/2009 (“Au Order”). The sealed copy of the Au Order showed the winding up petition was presented by Good Ascent’s creditor Mak Ko Kee Building Contractor Limited (“Mak Ko Kee”) (see paragraph 114 below), and the winding up order was made after hearing from counsel for Mak Ko Kee, counsel for Good Ascent, counsel for Max Express as intervener (see paragraphs 112-113 below) and the OR. 103.In a written note exhibited to the P 2nd Aff, P noted the Au Order did not grant any order for possession in favour of HSBC over the building at 120 Stanley Main Street, Stanley Hong Kong, and did not appoint the OR as provisional liquidator of Good Ascent. P went on to further note that according to section 186 of the CO, a plaintiff must obtain leave of the court before it could take civil action against a company in liquidation such as Good Ascent (see paragraph 56 above). Apparently, P wrote to the Chief Judge of the High Court on 3 May 2015 alleging certain representations were made to him by Au J’s clerk, but the reply letter by the Registrar of the High Court disputed such allegations, and stated (a) Au J granted a usual winding up order on 11 January 2010, and (b) there was no record to show P was a director of Good Ascent at that time (see page 8 of the exhibit to the P 3rd Aff and paragraph 38 above). 104.By a letter dated 13 June 2013 to Ting (“OR Further Letter”) (see page 25 of the exhibit to the P 2nd Aff), the ORO advised that after the Au Order was granted on 11 January 2010, the ORO became the provisional liquidator of Good Ascent. Pursuant to section 194(1) of the CO, the OR on 11 January 2010 appointed 何文傑 (“Mr Ho”) and 江詩敏 (“Ms Kong”) of Manivest Asia Limited (宏傑亞洲有限公司) as joint and several provisional liquidators in place of the OR. No order of the court was required for such appointment, and on 15 May 2015 P acknowledged receipt of certified copy of the letter of appointment in respect of Mr Ho and Ms Kong as joint and several provisional liquidators of Good Ascent. 105.The OR Further Letter went on to say that pursuant to (a) the 1st meeting of creditors and 1st meeting of contributories and (b) application made by report of the joint and several provisional liquidators of Good Ascent, the court granted an order appointing Lai Kar Yan (Derek) and Darach E Haughey both of Deloitte Touche Tohmatsu as liquidators of Good Ascent without committee of inspection. The OR Further Letter enclosed a copy of the order Master J Wong dated 8 April 2010 to such effect, and explained there was no need for any hearing for granting such order, so no notice of hearing was sent to Ting. 106.The P 2nd Aff (see pages 23-24 of the exhibit thereto) also enclosed an incomplete copy of the sealed copy order of Master J Wong that appointed Lai Kar Yan (Derek) and Darach E Haughey both of Deloitte Touche Tohmatsu as liquidators of Good Ascent. On 4 April 2018, Master Hui dealt with letter inquiries by P and a 林雪梅 (“Lam”) by granting the following written directions (see page 20 of the exhibit to the P 2nd Aff) as follows:
Master Hui (as did the OR in the OR Further Letter) explained that the order made by Master J Wong on 8 April 2010 to appoint liquidators of Good Ascent was made in chambers without court hearing, so no court transcript was available. Master Hui also rightly queried the locus of P and Lam to ask for inspection of the order made by Master J Wong on 8 April 2010 as there was no evidence that either of them were directors or contributories of Good Ascent. 107.By a bilingual note found at page 21 of the exhibit to the P 2nd Aff, P complained that the ORO failed to file Form W3 with the Companies Registry as to the appointment of Lai Kar Yan (Derek) and Darach E Haughey both of Deloitte Touche Tohmatsu as liquidators of Good Ascent: “I did not see such appointment document issued from the [ORO]. I made enquiry to the Companies Registry. It replied that it had not received such document.” 108.But in fact P himself disclosed a Form W3 at pages 26-27 of the exhibit to the P 2nd Aff. Such Form W3 was signed by Lai Kar Yan (Derek) and Darach E Haughey, dated 20 April 2010 and received by the Companies Registry on 21 April 2010, and gave notice that Lai Kar Yan (Derek) and Darach E Haughey were appointed by court order on 8 April 2010 as joint and several liquidators of Good Ascent. At pages 30-31 of the exhibit to the P 2nd Aff was a letter dated 25 August 2016 by the Companies Registry that confirmed such Form WR3 was registered on 21 December 2010 for public inspection. 109.It seemed therefore P’s complaint was not about notification of appointment of joint and several liquidators of Good Ascent but about notification of appointment of joint and several provisional liquidators of Good Ascent. At pages 30-31 of the exhibit to the P 2nd Aff was a letter dated 25 August 2016 by the Companies Registry that explained the position. Section 195(a) of the CO provides that “[where] in the winding up of a company by the court a person other than the [OR] is appointed provisional liquidator or liquidator under section 194, that person – (a) shall forthwith give notice of his appointment to the Registrar in the specified form and give security in the prescribed manner to the satisfaction of the [OR] ……” (my emphasis). According to the Companies Registry records, someone did on 12 January 2010 submit to the Companies Registry Form WR3 to give notice that Mr Ho and Ms Kong were appointed as joint and several provisional liquidators of Good Ascent on 11 January 2010, but at that time the Companies Registry was not yet aware that Good Ascent had been wound up by the court on 11 January 2010, so in view of the provisions in section 195(a) of the CO the Companies Registry did not at that time register the Form WR3. After the Companies Registry liaised with the ORO to follow up on the status of Good Ascent, and the ORO delivered the Au Order to the Companies Registry on 3 March 2010, the Companies Registry registered the Au Order and the Form WR3 for public inspection. 110.In my view, none of the above matters raised by P were of merit. But such myriad and unmeritorious complaints by P served to add weight to D’s concerns that unless restrained P would continue to vex others (including P) with his complaints. (b) Litigation concerning Lot 95 111.Notwithstanding the Conditions and Mortgage, (a) by a provisional agreement for sale and purchase dated 17 September 2009 and registered at the Land Registry on 7 October 2009 Max Express agreed to sub-sell Lot 95 to Techian, and (b) by a formal agreement for sale and purchase dated 30 September 2009 and registered at the land Registry on 19 October 2009 Max Express agreed to sub-sell Lot 95 to Techian. Disputes arose over the sub-sale of Lot 95, and Techian issued a writ of summons in HCA197/2010 against Good Ascent and Max Express, and registered such writ of summons with the Land Registry on 9 February 2010. Such writ of summons was amended on 9 February 2010 and the amended writ of summons was registered at the Land Registry on 17 March 2010. 112.According to the Yeung Aff, Max Express issued an originating summons on 11 June 2010 in HCMP1121/2010 to claim against Good Ascent (in liquidation with joint and several liquidators appointed) in relation to a dispute over a contract in April 2009 by which Good Ascent allegedly agreed to sell Lot 95 to Max Express. Max Express by its originating summons sought inter alia the following reliefs:
113.The injunction orders referred to in paragraph 112(a) above were obtained by Mak Ko Kee in July 2009 for restraining disposal of assets by Good Ascent in HCMP1406/2009. In fact, Mak Ko Kee also obtained charging order to show cause against Good Ascent in HCMP1406/2009 in September 2009. The initial injunction order on 24 July 2009 (see paragraph 113(a)(i) above) and the aforesaid charging order were registered with the Land Registry in respect of Lot 95 on 29 September 2009. Such injunction order was continued on 31 July 2009, and such continued injunction order (see paragraph 112(a)(ii) above) was registered with the Land Registry on 16 October 2009. 114.In 2012, D went ahead with the purchase of Lot 95 from HSBC in exercise of its power to effect mortgagee sale of such property. Since the Mortgage executed by Good Ascent in favour of HSBC was duly registered with the Land Registry, it took priority over any possible interests that Max Express, Mak Ko Kee and/or Techian might have had in Lot 95 arising from the aforesaid instruments registered with the Land Registry by virtue of sections 3(1) and 4 of the Land Registration Ordinance Cap 128,[16] which was also bolstered by sections 52 and 53(1) of the CPO discussed in paragraph 95 above, so D acquired Lot 95 free from any possible interests of Max Express, Mak Ko Kee and/or Techian in respect of such property. 115.The Yeung Aff explained in June 2014 that YLC received instructions from D in relation to Lot 95. The 95 Records revealed that D entered into a 2nd mortgage with Hang Seng Bank Limited in 2014. At that time YLC conducted an updated land search and found out that on 27 June 2012 (ie about 1½ months after HSBC’s mortgagee sale of Lot 95 to D) Max Express caused to be lodged with the Land Registry for registration against Lot 95 the originating summons issued on 11 June 2010 in HCMP1121/2010 (see paragraph 112 above). 116.The Yeung Aff noted Max Express apparently waited for 2 years before registering such originating summons with the Land Registry against Lot 95 at a time when Lot 95 had already been sold to D by way of mortgagee sale. Although such originating summons as lodged was withheld from registration by the Land Registry, it appeared in the 95 Records as deed pending registration. D considered such attempted registration by Max Express “improper, unreasonable, totally without legal basis, and obviously not bona fide”, and was concerned such attempted registration shown in the 95 Records might deter future purchasers or other persons intending to acquire interest in Lot 95 as it might cast doubt and raise query over D’s title, and this might affect D’s future sale of and/or dealing with Lot 95. D via YLC demanded Max Express to withdraw the attempted registration but in vain. 117.As a last resort, D instructed YLC to sue Max Express in HCMP2770/2014 for an order inter alia that the attempted registration be removed from the records of Lot 95 at the Land Registry. By the originating summons filed on 3 November 2014, D sought inter alia the following reliefs:
118.Shortly before the hearing of D’s claim in HCMP2770/2014, Max Express agreed to withdraw and eventually withdrew the attempted registration. The Yeung Aff noted with interest that P became the sole director and secretary to Max Express on 12 September 2013 (see Amended Notification of Change of Secretary and Director filed with the Companies Registry on 16 October 2013), and he also became the sole shareholder of Max Express when a Huang Yexing transferred 1 issued share to him about 2 months later on 11 November 2013 (see Amended Annual Return filed on 22 October 2014). 119.The Yeung Aff claimed it seemed likely that P was the mastermind behind the numerous attempts to commence legal proceedings in the name of Max Express and possibly also Techian, and to register such proceedings at the Land Registry against Lot 95. Yeung claimed although there was no documentary evidence linking Techian directly to P, the fact Techian was willing to enter into a contract for the sub-purchase of Lot 95 at a time when an injunction and charging order were registered against Lot 95 was, to say the least, highly suspicious. Notwithstanding such concern, none of the litigations in paragraphs 111-118 above affected D’s ownership and interest in Lot 95, but D had been put to the trouble of spending time and cost to protect its title and interest in Lot 95. (c) Litigation concerning D 120.YLC also acted for D in 2 earlier legal actions commenced by Lam (whom Yeung claimed to be P’s agent) in HCA2513/2017 and by P in his own name in HCA1180/2018 in relation to Lot 95. The present legal action is the 3rd litigation that D was sued on the same or similar subject matter. 121.In HCA2513/2017, Lam sued D on the same or similar subject matter as in the present claim by P against D herein. Yeung later found out that Lam was P’s sister, and Yeung believed she was P’s agent, front-person or accomplice as evident from the fact that paragraphs 1 and 5 of the Statement of Claim in HCA2513/2007 Lam described herself as “林永恒” (ie P). Upon D’s application by summons filed on 12 December 2007, Master J Wong on 18 May 2018 struck out Lam’s claim in HCA2513/2017 and dismissed the action on the ground that it was scandalous, frivolous or vexatious, or was otherwise an abuse of process with costs to D on indemnity basis assessed at $207,000.00 to be paid within 28 days. 122.3 days after such dismissal of Lam’s claim in HCA2513/2017, ie on 21 May 2018, P by his own name commenced HCA1180/2018 against D on the same subject matter as HCA2513/2017. In fact, the Statement of Claim in both actions were identical, and in HCA1180/2018 P simply adopted the Statement of Claim in HCA2513/2017 as the Statement of Claim in HCA1180/208, crossed out Lam’s signatures and replaced them with his own. Again, on D’s application by summons filed on 11 June 2018, Master G Chan on 5 October 2018 struck out P’s claim in HCA1180/2018 on the ground that it disclosed no reasonable cause of action, was scandalous, frivolous or vexatious, or otherwise an abuse of process, and dismissed HCA1180/2018 with costs to D agreed at $130,000. 123.Yeung claimed the present action was another attempt to re-litigate the same or similar subject matter which had no merit, and which was in fact scandalous, frivolous or vexatious and/or was otherwise an abuse of process of the court. D was concerned that unless restrained by the court, P would continue to pursue unmeritorious litigation against D who had to incur substantial legal costs that were practically impossible to recover from P who was an undischarged bankrupt. 124.The fact that P was an undischarged bankrupt had not deterred him from pursuing unmeritorious claims. It is an abuse of process to re-litigate claims that had been dismissed and subject to the doctrine of res judicata.[17] Further in Ng Yat Chi v Max Share Ltd & anor,[18] Li CJ said as follows:
I accept that unless P is retrained by restricted proceedings order (“RPO”) / restricted application order (“RAO”), it was likely that he would continue to commence unfounded actions and applications against D and/or related party(ies) on the same subject matter. It would be a waste of court time and resources to allow such claims to proceed and RPO/RAO would prevent further abuse of the court process.[19] 125.I therefore order that RPO and RAO be imposed against P on terms set out in the Schedule to this Judgment. VII. CONCLUSION 126.I therefore grant the following orders:
127.I also grant the RPO and RAO orders in the Schedule to this Judgment. 128.There is no reason why costs should not follow event. I therefore grant a costs order nisi that P do pay costs of the Summons and costs of the present action (including all costs reserved if any) to D on indemnity basis to be taxed if not agreed. 129.Should P required translation of this Judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Judgment to him at the High Court Building at a mutually convenient time. Further, D must serve Chinese translation together with the sealed copy the orders made herein to P.
The plaintiff acting in person and present Mr Mak Chi Biu, instructed by Yeung Law & Co, for the defendant Schedule
[1] P should not have done so as the WoS / SoC were not for discovery/disclosure of documents but for pleading material facts in respect of P’s claim [2] even though the original copy of the Summons filed with the court had no such error [3] by such Letter of Undertaking dated 13 October 2006, Good Ascent referred to the building plan submitted by the authorised person to the Building Authority on 13 September 2004, and substantiated the application for exemption of balconies as a green feature from plot ratio and site coverage calculation [4] [2012] 2 HKLRD 1255, 1262-1263 (which principles were reiterated in Wan Po Jun Mary Pauline v Au Yeung Yee Man [2017] 1 HKLRD 94, 99-100) [5] 2016 Reissue at pp 74-75 [6] Vol 1 para 18/19/4 at p 503-504 [7] see Byjoy Ltd v Thorogood Estates Ltd [1985] 2 HKC 746, 758 [8] see Hong Kong Civil Procedure 2020 Vol 1 para 18/19/5 at pp 504-505 (see also Order 18 rule 19(2) of the RHC) [9] Vol 1 para 18/19/7 at pp 506-507 [10] To J in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Limited & anor HCA1934/2011 (unreported, 9 July 2012) at para 212(d) stated that: “…… In an appropriate case, the court ought not to be slow to exercise the power to strike-out in order to dispose of proceedings which are hopeless and without foundation in law. In those cases, such power is required by the very essence of justice to be exercised, so as to prevent the defendant from being harassed and put to expense by frivolous vexatious or hopeless claims: Riches v DPP [1973] 1 WLR 1019 at 1027” [11] see Choy Bing Wing v Hong Kong Institute of Engineers HCA 309/2015, Au-Yueng J (unreported, 27 November 2015) para 16(d) [12] [1997] HKLRD 588 [13] HCMP3196/2013, DHCJ Marlene Ng (unreported, 1 June 2018) [14] Vol 1 para 18/19/4 at pp 503-504 [15] HCA 1694/2008, Poon J (as he then was) (unreported, 15 December 2009) [16] the Land Registration Ordinance Cap 128 provides as follow: “Subject to this Ordinance, all such deeds, conveyances, and other instruments in writing ...... and registered in pursuance hereof, shall have priority one over the other according to the priority of their respective dates of registration ...... , no notice whatsoever, either actual or constructive, of any prior unregistered deed, conveyance, or other instrument in writing, ......, shall affect the priority of any such instrument as aforesaid as is duly registered.” [17] See Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 [18] (2005) 8 HKCFAR 1 [19] see Practice Direction 11.3 |
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