China Nation Development Ltd v. Wong Ching Yee Joyce

DCCJ 1840/2024

[2026] HKDC 1096

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1840 OF 2024

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DECISION

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Introduction

1.By summons dated 4 September 2025 (the “Summons”), the defendant (“D”) applied for an order that:

“1. This action be transferred to the jurisdiction of the Court of First Instance of High Court (“CFI”) to be tried and heard together with High Court Action No. 2012 of 2023 notwithstanding the expiration of time prescribed in the Order dated 19^th June 2025 of Registrar M Soong …”

2.By a decision dated 29 December 2025, Master Y H Chan dismissed the Summons with indemnity costs summarily assessed at HK$111,610.

3.On 9 January 2026, D filed a notice of appeal (“NOA”) to appeal against the learned Master’s decision. However, the NOA was not served on the plaintiff’s solicitors within 5 days after it was issued, as required under Order 58 rule 1(3) of the Rules of the District Court (“RDC”).

4.On the same day, in the absence of any prior leave granted by the court, D purportedly also filed the 3^rd Affirmation of Wong Ching Yee Joyce for the purpose of the appeal.

5.By summons dated 13 February 2026, D sought an order that retrospective leave be granted to her to serve the NOA and her 3^rd Affirmation on the plaintiff’s solicitors on 29 January 2026.

6.The hearing of the summons dated 13 February 2026 and the appeal by way of re-hearing were fixed before me on 5 May 2026.

7.I will now deal with the summons dated 13 February 2026, and then the appeal against the learned Master’s decision.

Summons dated 13 February 2026

8.Mr Lee Siu Him, counsel for the plaintiff (“China Nation”), sensibly indicated in his skeleton submissions that, for the purpose of saving time and costs, China Nation would not oppose to the service of the NOA out of time. Retrospective leave was therefore granted to D in this regard.

9.With regard to the purported filing of D’s 3^rd Affirmation, I agree with Mr Lee that it is a clear abuse of process and the affirmation should be struck out.

10.Order 58 rule 1(5) stipulates that no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule, except on special grounds.

11.To establish “special grounds”, the following conditions are to be satisfied:

(1)  It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(2)  The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3)  The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

See: Hong Kong Civil Procedure 2026, §58/1/3

12.It is incumbent on a party seeking to introduce new evidence to give “the fullest explanation” of the relevant circumstances and whether it could have been obtained earlier: Ten Plus Ltd v Donovan Miu Wah Mira (unreported, HCA 1573/2013, 18 August 2014) at §14 per DHCJ Le Pichon.

13.I have considered the contents of D’s 3^rd Affirmation, and they can be grouped into these 3 broad categories:

(1)  Paragraphs 1 to 3: D recites the learned Master’s reasons to dismiss the Summons.

(2)  Paragraphs 4 to 9: D puts forward fresh evidence as to the reason for the delay in taking out the Summons. She also refers to (i) the Amended Originating Summonses in HCMP 537/2024 and HCMP 598/2024 (both amended in May 2024) which sought to vacate the registration of the Writ of Summons and Statement of Claim in HCA 2012/2023; (ii) the affirmations made by D and her brother dated 13 May 2024 in the abovementioned HCMP proceedings; and (iii) submissions made at the hearing of these proceedings before Keith Yeung J on 24 July 2024 and certain alleged indication made by his Lordship at the hearing.

(3)  Paragraphs 10 to 15: D seeks to explain her pleadings in HCA 2012/2023 (which was filed on 3 July 2024) and makes arguments in support of her appeal.

14.It is pertinent to note that all the “fresh evidence” concerns events that took place in 2024, more than one year before the Summons was issued. As rightly pointed out by Mr Lee, D has adduced no explanation, let alone “the fullest explanation”, as to why none of the above was adduced when the Summon was issued.

15.Moreover, a substantial part of the 3^rd Affirmation contains mere arguments. It is trite that such a practice is wrong, and judges should carefully consider whether the nature and extent of the offensive material is such that the whole affidavit should be struck out: Hong Kong Civil Procedure 2026, §41/6/1.

16.In response, Ms Virginia Leung, counsel for D, contended that D was only trying to respond to Master’s reasoning in reaching his decision, and she could not have discovered the Master’s reasoning beforehand and hence the first condition for “special grounds” is satisfied. With respect, this argument is entirely untenable. If Ms Leung were right, it would mean that every aggrieved party would be entitled to file a new affirmation setting out their arguments against a particular decision.

17.As for the second and third conditions for “special grounds”, it is clear that they are not satisfied. I dismiss D’s application for leave to file and serve her 3^rd Affirmation.

The appeal

18.In this action, China Nation claims to be the sole legal and beneficial owner of a property at Flat D4, 1/F Yau Yat Lau, 11 Fa Po Street (“the suit property”) and seeks an order for possession against D. In her defence, D claims that the suit property was solely owned by herself pursuant to certain resulting trust and/or common intention constructive trust.

19.In HCA 2012/2023, D and her brother are the plaintiffs and they make various claims against their parents (4^th and 5^th defendants) and two other siblings (6^th and 7^th defendants) that various properties held in the name of various companies (1^st, 2^nd, 3^rd, 8^th to 11^th defendants) are held on trust for D and her brother. One of the 16 properties concerned in that case is the suit property.

20.For present purposes, it suffices to note that D’s pleaded case in HCA 2012/2023 is different from her case in the present action where she avers to be the sole beneficial owner of the suit property.

21.Ms Leung submitted that the present action is part of a broader set of proceedings concerning the same family dispute, the same asserted beneficial interests, and the same property in issue. She argued that a transfer of this case to the CFI is justified because common questions of fact and law arise, and a single High Court judge should manage and determine them.

22.In this regard, Ms Leung referred to RDC Order 4 rule 9, which provides that where common questions of law or fact arise, or where the rights to relief arise out of the same transaction or series of transactions, or where for some other reason it is desirable, the court may order matters to be tried at the same time, one after another, or stayed pending the determination of the other. It is trite that the main purpose of consolidation or related case-management orders is to save costs and time, and that where there is substantial overlap of issues, parties and evidence, it is desirable to resolve the disputes on one occasion by the same judge.

23.Mr Lee, on the other hand, submitted that the appeal should be dismissed because:

(1)  D issued the Summons in breach of case management deadline;

(2)  This court has no jurisdiction to make a composite order that this action be transferred to the CFI to be tried and heard together with HCA 2012/2023; and

(3)  D fails to show that the transfer of the present action “would” result in consolidation with HCA 2012/2023.

24.In relation to the first ground, Registrar Soong made an order dated 19 June 2025 that if D intended to apply for this action to be stayed or transferred to the CFI, such an application should be made on or before 31 July 2025. There is no dispute that the Summons was only issued on 4 September 2025, some 35 days after the deadline and no explanation was given by D in her supporting affirmation in relation to the delay. Mr Lee argued that this is a blatant disregard of procedural rules and the express guidance of Lam VP (as he then was) in China Metal Recycling (Holdings) Ltd v Chun Chi Wai (unreported, CACV 109, 155/2016, 27 January 2017) at §§8-11.

25.In my view, the fact that the Summons was only issued 35 days after the deadline with no explanation given is clearly unsatisfactory and a blatant breach of the rules. But that of itself is not fatal to the present application, in particular where there is no suggestion that China Nation has suffered any substantial prejudice because of the delay. If an application has merits, it is not uncommon for the court to exercise its discretion to extend time and allow the application.

26.The fundamental problem with the Summons is that this court simply does not have the jurisdiction to make a composite order that this action be transferred to the CFI to be tried and heard together with HCA 2012/2023.

27.In Wu Yi Development Company Ltd v Big Island Construction (HK) Ltd (unreported, DCCJ 5174/2005, 8 December 2006), HH Judge HC Wong allowed an application to transfer the case to the CFI but held that it is a question for the Judge or the Master in the High Court to decide if the two actions concerned should be consolidated. Unlike the Summons, in that case the defendant did not apply for a composite order but only sought to transfer the District Court action to the CFI to enable a consolidation application to be made.

28.Similarly, in Re Estate of Lui Cho Tung Roy [2020] HKCFI 1054 at §13, Wilson Chan J held that the CFI has no jurisdiction to make an order that a proceeding pending in the District Court be heard together with another proceeding pending in the CFI, because the jurisdiction to consolidate proceedings under Order 4 rule 9 of the Rules of the High Court, Cap 4A (“RHC”) is engaged only when both proceedings are pending in the CFI. Since Order 4 rule 9 of the RDC is drafted in exactly the same wording, the same logic must apply to the present case. This court has no jurisdiction to order this action to be tried and heard together with HCA 2012/2023.

29.In §3 of D’s skeleton submissions, Ms Leung stated, inter alia, that D seeks “alternatively, that these proceedings be stayed pending the outcome of the trial of HCA 2012/2023”. There is clearly no such application in the Summons. No amendment of the Summons has been made to include a stay as an alternative. It is simply not open to D to seek this alternative order in this appeal.

30.At the hearing, Ms Leung accepted that the court has no jurisdiction to make a composite order, but maintained that the court can and should make a transfer order so that D could apply to consolidate this action with HCA 2012/2023 in the CFI.

31.In considering an application for a transfer order, HH Judge HC Wong in Wu Yi Development (supra) held that the court shall take into account the issue as to whether the CFI would allow the two actions to be consolidated if the present action is transferred to the CFI (at §19) and the crucial question is whether the transfer would result in its consolidation with the High Court action (§20). I respectfully adopt the approach here.

32.In this regard, it is necessary to go back to the relevant principles relating to an application under Order 4 rule 9 where the court is asked to consolidate two matters, or order them to be tried at the same or one immediately after another, or order any of them to be stayed until after the determination of another. In Convoy Collateral Limited v Cho Kwai Chee [2022] HKCFI 3406 at §12, Coleman J stated the principles as follows:

(1)  The court has an unfettered discretion in deciding whether to make a consolidation order, and the power is to be exercised in a flexible way with regard to the particular circumstances of the situation.

(2)  The court must nevertheless be satisfied that it would be proper and expedient to make the order, having regard in particular that:

(a)  one primary objective of such an order is to save time and costs;

(b)  where there is a substantial overlapping of issues in the parties, it is desirable to resolve the disputes in the different actions on one occasion by the same judge;

(c)  the court is seeking the avoidance of unnecessary delay, undue complexity and overloading of issues; and

(d)  the court is seeking the avoidance of creating a risk of irreconcilable decisions which would arise from trying actions separately.

(3)  There is no hard and fast rule that, just because the parties are identical and some common questions of fact or law is involved in both actions, it would be expedient and proper to order consolidation.

(4)  The court should take a practical and common sense approach to meet the justice of the particular situation, in light of the underlying objectives in Order 1A of the RHC.

(5)  The emphasis is on ensuring the efficient and just resolution of disputes before the courts.

33.In that case, Coleman J dismissed the application for one action to be tried immediately after another for the following reasons:

(1)  The court could not realistically assess the true degree of commonality, or how the use of witnesses and documents could save time or costs by the proposed order because the applicants did not identify the names and numbers of any suggested common witnesses between the two actions, and the nature and volume of any common documents (§§38-39).

(2)  The proposed order might bring further complexity and overloading of issues to the trial of the two actions (§40).

34.As mentioned above, D’s application is premised on the ground that this action is part of a broader set of proceedings before the CFI concerning the same family dispute, the same asserted beneficial interests and the same property in issue. In particular, D claims beneficial interest in relation to the suit property being held by China Nation under resulting trust and/or common intention constructive trust, which the CFI should determine after the full trial of HCA 2012/2023. Ms Leung argued that it would be undesirable and premature for China Nation to proceed to trial of this action before a CFI judge makes a finding on these issues of fact and law in HCA 2012/2023.

35.On the face of it, this argument may sound persuasive. But the avoidance of creating a risk of irreconcilable decisions is only one of many factors for consideration in an application under Order 4 rule 9. At the end of the day, the court’s discretionary power must be exercised in a flexible way having regard to all the relevant circumstances and weighing the potential pros and cons if the court were to accede to the application.

36.I have considered the pleadings, the evidence filed for the purpose of this application and the parties’ respective submissions. I am not persuaded that it would be proper and expedient to order the transfer of this action to the CFI. My reasons are as follows.

37.Firstly, the commonality of the two actions appears to be limited to the following:

	Present action	HCA 2012/2023
Party	China Nation as P	China Nation as 3rd Defendant (among 10 defendants)
	D	D as 1st Plaintiff
Subject property	The suit property	The suit property (among 16 properties)
China Nation’s case	China Nation has sole beneficial interest[1]

38.But as rightly pointed out by Mr Lee, D has not shown why it is “expedient and proper” for a transfer to be made by referring to any commonality for potential consolidation.

39.Secondly and more critically, the court cannot realistically assess the true degree of commonality. This is because, contrary to Ms Leung’s submission that these two actions concern the “same asserted beneficial interest” and “same trust-based issues”, D adopts materially different and contradictory cases concerning her asserted beneficial interest in the suit property. In his written submissions, Mr Lee helpfully organised the relevant pleas in a table, which is reproduced here with slight modifications:

	Present action	HCA 2012/2023
Other parties	No	1 other plaintiff and 9 other defendants
D’s various cases on nature of her interest of subject property	D has no case on gift	Gift of uncertain ownership of D and/or her second ex-husband The suit property “becomes a gift for [D’s] second marriage.” [2]
	Sole legal ownership of China Nation: The suit property “was purchased […] as a result of [D’s] contribution in advising and helping [her parents] to invest in and purchase [the suit property] for the benefit of [China Nation]” [3]	Co-ownership of China Nation and D’s parents: “19. [D] has also contributed in advising and helping [her parents] to invest in and purchase of certain properties for the benefits of the 3rd to 5th Defendants [ie China Nation and D’s parents]” [4]
	D’s sole beneficial ownership: “on resulting trust and/or common intention constructive trust for the benefits of [D].” [5]	D and her brother’s co-ownership in uncertain shares: “on resulting trust and/or common intention constructive trust for the benefits of [her brother and D].” [6]

40.Thus, in this action D claims to have sole beneficial interest in the suit property based on a resulting trust and/or common intention constructive trust held by China Nation. On the other hand, in HCA 2012/2023, she has two internally inconsistent cases where she alleges (1) gift for her second marriage and (2) resulting trust and/or common intention constructive trust held by China Nation and her parents for the benefit of herself and her brother. Her two cases in HCA 2012/2023 are also inconsistent with her case in the present action.

41.In Luchio Nominees Pty Ltd v Epping Fresh Food Market Pty Ltd [2016] VCAT 58, the plaintiff applied for an order that the old proceedings be heard together with the new proceedings. The plaintiff was the owner of a property leased to the defendant. The defendant argued, inter alia, that it was conceptually impossible to consolidate the two sets of  proceedings where the pleadings were inconsistent because, in the old proceeding, it was said that the lease came to an end in March 2014 and the new proceeding came to an end in July 2015 (at §26(b)). The court agreed with this submission and held that this inconsistency was a reason for the two sets of proceedings not to be heard and determined together (at §30(b)). In my view, the same conclusion is apposite to the situation here.

42.Ms Leung submitted that Luchio is distinguishable because, in that case, the two sets of proceedings are irreconcilable, whereas here the differences are just a matter of emphasis.

43.I disagree. In my view, the differences go to the crux of D’s case, ie the basis of her alleged ownership of the suit property. Her case on her alleged beneficial interest in the present action is materially different from those in HCA 2012/2023 and it is impossible for the two sets of cases to co-exist. To allow the present action to be consolidated with HCA 2012/2023 will likely create more confusion, complexity and overloading of issues to the trials the two actions.

44.Ms Leung further submitted that the inconsistencies can be dealt with by way of amendments, and there is all the more reason for this court to make a transfer order, so the Judge or Master in the CFI could deal with the amendments and consolidation in one go.

45.I cannot accept this submission. To adopt Ms Leung’s suggestion would be putting the cart before the horse. It is D’s responsibility to make good her pleadings in support of her application. Yet even after the hearing before the learned Master, D never sought to cure the inconsistencies by way of any application to amend her pleadings. It is wrong and irresponsible for D to even suggest that this court should transfer the case and expect the CFI to deal with the inconsistencies.

46.Thirdly, I am unable to assess how a transfer order could save time and costs through common witnesses and documents. Like the case of Convoy, D has not identified the names and number of any suggested common witnesses between the two actions, and the nature and volume of any common documents.

47.In view of the above reasons, as the matter currently stands I am not persuaded that the CFI would allow the two actions to be consolidated if the present action is transferred to the CFI.

48.D’s appeal should be dismissed.

Disposition

49.In respect of the summons dated 13 February 2026:

(1)  Retrospective leave is granted to D to serve the NOA on China Nation’s solicitors on 29 January 2026; and

(2)  Retrospective leave to serve the 3^rd Affirmation of D on 29 January 2026 is refused.

50.D’s appeal against the learned Master’s order dated 29 December 2025 is dismissed.

51.As regards costs, the Summons was misconceived from day one as the court does not have jurisdiction to make the composite order that was sought in the Summons. Moreover, in the absence of any amendment of the Summons, D in the appeal sought a transfer order and, alternatively, a stay of the present action pending the outcome of the trial of HCA 2012/2023 (the latter of which was not even before the learned Master). As for the summons dated 13 February 2026, the purported filing and service of D’s 3^rd Affirmation is clearly an abuse of process. In these circumstances, I agree with Mr Lee that it is justified to order costs on an indemnity basis. China Nation has lodged and served with its submissions the Statement of Costs. Since this is mainly a re-hearing of the Summons, the proposed costs of HK$260,006 is on the excessive side even adopting the higher scale of costs. In my view, HK$160,000 is a reasonable sum, and I order accordingly.

52.D should pay China Nation the costs of and occasioned by the NOA and the summons dated 13 February 2026 on an indemnity basis, with certificate for counsel, summarily assessed at HK$160,000.

53.I thank counsel for their assistance.

Mr Lee Siu Him, instructed by Yu Sun Yau Mak & Lawyers, for the Plaintiff

Ms Virginia Leung, instructed by Krishnan & Tsang, for the Defendant