Read the full judgment text of HCA 1611/2019 & HCA 2275/2019 on BabelCite. This Court of First Instance judgment was delivered on 29 July 2022 before Deputy High Court Judge Leung.
Civil procedure – appeal from master to judge in chambers – rehearing – striking out under O18 r19 RHC – summary judgment under O14 r1 RHC – abuse of process – whether sale and assignment of property breached special conditions of New Grant – whether joint administrator had authority to dispose of property under Probate and Administration Ordinance (Cap 10) and Trustee Ordinance (Cap 29) – whether oral buy-back option was enforceable under sections 3(1) and 4(1) of Conveyancing and Property Ordinance (Cap 219) – whether new evidence could be received under O58 r1(5) RHC and Ladd v Marshall [1954] 1 WLR 1489 – costs on indemnity basis. The dispute concerned Lot No 5059 of DD 51 in Fanling, held under New Grant No 9423, which became known as No 5 Luen Hing Street, Luen Wo Market, Fanling. After the original grantee Tang Chung Shau died in 1998, letters of administration were granted to Cheung Yuk Ying and the plaintiff 鄧錦祥 ("Tang"), who in their capacity as joint administrators sold the Property to Source View Development Limited by assignment dated 6 January 2009. A tenancy was immediately granted by Source View to Café Happy Post Limited (Tang's company) and renewed in 2013 and 2017, expiring on 4 January 2021. After Café Happy Post defaulted, Source View sought possession and mesne profits and Tang commenced HCA 1611/2019 seeking to nullify the 2009 sale and assignment, alleging breach of the New Grant, lack of administrator authority, and an oral buy-back option. The Lands Tribunal proceedings were transferred to the CFI as HCA 2275/2019, where Source View advanced a counterclaim mirroring Tang's claim. The master entered summary judgment, struck out Tang's pleadings, ordered vacant possession and mesne profits at HK$48,000 per month from 5 January 2021, and dismissed HCA 1611/2019 with costs. On Tang's appeal, the court held that the alleged breach of special conditions 2 and 2(a) of the New Grant failed because a 1972 Lands Department letter confirmed compliance; that Tang's challenge to his own authority as joint administrator was without merit in light of sections 54, 62 and 65 of the Probate and Administration Ordinance (Cap 10) and sections 2 and 13 of the Trustee Ordinance (Cap 29); and that the alleged oral buy-back option was unenforceable as it concerned an interest in land not evidenced in writing under sections 3(1) and 4(1) of the Conveyancing and Property Ordinance (Cap 219) (Stromdale and Ball Ltd v Burden [1952] Ch 223), suffered from contractual uncertainty, and was internally inconsistent with Tang's challenge to the sale. None of the contentions constituted a credible or valid defence or claim; they were frivolous, vexatious, and an abuse of process, justifying striking out under O18 r19 and summary judgment under O14 r1. Tang's affirmations on appeal were admitted only as submissions because they were not received under O58 r1(5) / Ladd v Marshall. Both appeals were dismissed, with a nisi order for indemnity costs with certificate of counsel and summary paper assessment to follow.
Legal issues: Whether the 2009 sale and assignment of the Property breached special conditions 2 and 2(a) of the New Grant · Authority of joint administrators to sell the Property · Enforceability of the alleged oral option to buy back the Property · Striking out of Tang's claim in HCA 1611/2019 and defence/counterclaim in HCA 2275/2019 · Summary judgment in HCA 2275/2019 · Indemnity costs for the appeals
Outcome: Both appeals dismissed. The master's decision of 22 November 2021 is upheld: summary judgment entered in HCA 2275/2019 against Tang, Happy Post Enterprise and Willcocks for possession and mesne profits, with Tang's amended defence and counterclaim struck out; Tang's claim in HCA 1611/2019 struck out and the action dismissed.
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