Goldstar H.K. Development Ltd v. Mega Gold Enterprises Ltd

HCMP 2245/2019

[2020] HKCFI 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2245 OF 2019

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DECISION

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1.This is the application by the plaintiff (“P”) for an order that “the registration or purported registration of the Provisional Agreement for Sale and Purchase dated 23 April 2018[1]… pending registration at the Land Registry be vacated from the Land Registry”.[2]

2.The following facts are gleaned from the affirmation of Sin Yuk Ling (“Sin” and “Sin’s Affirmation”) dated 3 December 2019.  Sin is a director of P.

3.P has been the registered owner of Shop No.1, Ground Floor, Pao Woo Mansion, 177‑179 Wan Chai Road & No.51 Cross Lane, Hong Kong (the “Property”).

4.By the PS&PA, P as vendor agreed to sell and the defendant (“D”) as purchaser agreed to purchase the Property at the price of HK$39,000,000.

5.Messrs Kenneth C.C. Man & Co (“KCCM”) acted for P in the transaction.  Messrs Edward C.T. Wong & Co (“ECTW”) acted for D.

6.D has failed to complete the purchase.

7.By letter of 13 July 2018 from KCCM to ECTW, P gave notice to D that D’s repudiation of the PS&PA was accepted.

8.On 3 December 2019, KCCM on behalf of P lodged a Memorandum of Determination of the PS&PA (the “Memorandum of Determination”) with the Land Registry for registration.

9.On 18 December 2019, the Land Registry notified KCCM that the Memorandum of Determination was withheld from registration pending clarification of a preceding document.  That preceding document was the PS&PA lodged by ECTW on D’s behalf.  The Land Registry further said that “Registration of the [Memorandum of Determination] will proceed upon registration of the preceding document(s)”.

10.Despite KCCM’s repeated requests, D has failed to either withdraw or complete the registration of the PS&PA.

11.On 4 December 2019, P filed the Origination Summons herein seeking vacation of the registration (or purported registration) of the PS&PA.  The application is supported by Sin’s Affirmation.

12.D has failed to filed any Acknowledgement of Service.

13.I have read the 1^st and 2^nd affirmations of service of Ho Ping Kuen.  I am satisfied that both the Originating Summons and the Notice of Appointment to hear Originating Summons have been served upon D.

14.Originally, the Origination Summons was set down to be heard on 11 February 2020.  That date, as things turned out, fell within the General Adjourned Period as a result of the outbreak of COVID-19.

15.By submissions dated 2 March 2020, P sought paper disposal of the Originating Summons.

16.On 3 March 2020, I directed P to confirm whether those submissions and all related documents had been served upon D.

17.Under cover of a letter of 4 March 2020, KCCM served the submissions, the related hearing bundle, the authorities in support and the statement of costs for summary assessment upon D.

18.On 10 March 2020, I directed that unless D within 5 days filed written submissions to the contrary, the Court would proceed to dispose of the matter on the papers.

19.Nothing has been heard from D.

20.I now proceed to deal with the application on the papers before me.

21.I have considered Sin’s affirmation.  I have set out the relevant facts above.

22.I have considered the law.  The only legal issue is whether this Court has jurisdiction to order the vacation or removal of the PS&PA despite the fact that it has not actually been registered.

23.I have considered Re Yee Tsim Choi & Another (unrep, HCMP 2850/2015, 30 March 2016, per Chow J). In that case, Chow J applied Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594 where Deputy Judge Cheung (as he then was), with reference to a letter which had been found not to give rise to any interest in land, observed that:

“ 10. … The mere fact that it appears in the land search record as a document pending registration is, in my judgment, sufficient to introduce a doubt on the title of the administratrix.

…

16. The so‑called instrument of transfer has not been lodged for registration as a lis pendens. It was lodged for registration as an instrument affecting land. In those circumstances, the statutory provisions in section 19 of the Land Registration Ordinance (Cap. 128) relating to the Court’s jurisdiction to vacate a lis pendens do not apply. However, as is demonstrated by the many authorities very helpfully cited to me by Mr Tracy this morning (including Heywood v. BDC Properties Ltd [1964] 2 All ER 702 and Thian’s Plastics Industrial Co. Ltd v. Tin’s Chemical Industrial Co. Ltd [1970] HKLR 498, [1971] HKLR 249), this Court does have the inherent jurisdiction to vacate the registration or purported registration of any instrument in the Land Registry which does not affect or no longer affects land. For the same reason, I am fully satisfied that this Court does have the jurisdiction, in an appropriate case, to grant a declaration in relation to the ‘registrability’, as it were, of any document which has been lodged for registration with the Land Registry even though it was not lodged for registration as a lis pendens.

17. For all the above reasons, I am with the Plaintiff.  I make a declaration that the so‑called ‘instrument of transfer’ dated 2 November 1994 that was delivered to the Land Registry on 10 March 2001 for registration by Memorial No. 8332048 is not registrable under the Land Registration Ordinance against the property known as Flat U on 14^th floor (or Flat on 14^th floor of Block U), Man Wo Garden Mansion, No. 38 Yuet Wah Street, Kowloon.  I believe that such a declaration would serve the purpose of the Plaintiff.”

24.I respectfully agree. 

25.I grant an order in terms of §1 of the Origination Summons.  I order further that the PS&PA be removed from the Land Registry, including any reference to it as a “deed pending registration”.

26.D ought either to have completed or withdrawn the registration of the PS&PA.  Doing nothing is not just irresponsible but simply wrong, and has caused prejudice to P — see Dragon Fame Investment Limited v Guo Jianjun & Midway International Consultants Limited (unrep, HCMP 1812/2012, 21 September 2012, per L Chan J). I order D to pay P the costs of these proceedings on an indemnity basis, which I, having considered the bill of costs submitted by P, summarily assessed at HK$90,000.

Written Submissions by Mr Tam Chi Kin, of Kenneth C.C. Man & Co, for the Plaintiff