Lam Lau v. Huang Xihui

HCMP 869/2020

[2021] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 869 OF 2020

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Before:  Hon Au-Yeung J in Court

Date of Hearing:  26 February 2021

Date of Judgment: 26 February 2021

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J U D G M E N T

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Introduction

1.This is an application by the Applicant (Mr Lam) for an order that a Notice of Intention to Proceed with Ancillary Relief (“the Notice”) registered 12 years ago against his property be vacated.

2.Mr Lam is the sole registered owner of Flat E on 4^th Floor, Winning House, 6 Ping Shing Lane, Kowloon (“the Property”).  It was transferred to him by assignment dated 5 June 2008 by his son, Henry Law.

3.In 2009, Henry Law and the Respondent (Madam Huang) were engaged in divorce proceedings.  Madam Huang filed the Notice in the Family Court on 26 November 2009.  On 2 December 2009, Madam Huang registered the Notice against the Property at the Land Registry.  It was listed as “registration withheld”.  Since then, Madam Huang has not taken any proceedings in respect of the Notice.

4.Madam Huang is untraceable despite enquires made by Mr Lam.

5.George Chan & Co, solicitors for Madam Huang in the divorce proceedings, has ceased practice.  Chui & Lau has been appointed by the Law Society as intervention agent.  Chui & Lau has declined to accept service.  It appears from Chui & Lau’s letter to the Applicant’s solicitors dated 22 June 2020 that the last known address of Madam Huang was at the Property.

6.The Originating Motion was served on Madam Huang by way of substituted service, ie by advertisement in a local newspaper.  She has never entered an appearance.

Legal principles

7.The relevant sections of the Land Registration Ordinance, Cap 128 (“LRO”) provide as follows:

“17. The registration of a judgment, order or lis pendens shall cease to have effect at the end of 5 years from the date of registration, but the judgment, order or lis pendens may be re-registered from time to time and, if so re-registered, shall have effect for 5 years after the date of re-registration.

…

19. Power to the court to order vacation of lis pendens

The court or judge before whom any property sought to be bound is in litigation, may on the determination of the lis pendens, ordering the pendency thereof, where the said court or judge is satisfied that the litigation is not prosecuted bona fide, or for other good cause shown, make an order for the vacating of the registration in the Land Registry of such lis pendens without the consent of the party who registered it, and may direct the party on whose behalf the registration was made to pay all the costs and expenses occasioned by the registration or the vacating thereof, including the costs of the application to vacate, or may make such other order as to such costs or any of them as to the said court or judge may seem just.

20. Mode of making application to the court

The application to vacate a lis pendens under section 19 may be in a summary way by petition or motion in court or by summons in chambers, and may be made by any person interested in the property against which the lis pendens has been registered, whether such person is a party to the lis pendens or not.” (underline added)

Application of the legal principles

8.Under s.17 of the LRO, the Notice had ceased to have effect after lapse of 5 years, ie on 2 December 2014.

9.Under s.20 of the LRO, Mr Lam, being the registered owner, is plainly a person interested in the Property, although he is not a party to the Notice.

10.Under s.19 of the LRO, good cause has been shown by Mr Lam:

(1)     Appearance of the Notice in the land search record even as “registration withheld” creates a doubt on the title of Mr Lam: Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594, at §§5 and 16, DHCJ A Cheung (as he then was).

(2)     Madam Huang does not appear to have prosecuted the Family Court proceedings with diligence in the last 12 years. She has not bothered to re-register the Notice 5 years after it was first registered.

11.For the reasons given, I consider it appropriate to exercise my jurisdiction under s.17 of the LRO and the inherent jurisdiction (see Re Li Fat [2009] 5 HKLRD 259, Chu J (as she then was)), and order that the Notice be vacated from registration forthwith.

12.The Applicant does not seek costs and I make no order accordingly.

Ms Tania Tse, instructed by K B Chau & Co, for the Applicant

The Respondent was not represented and did not appear