Nation Group Development Ltd. v. The Bank of East Asia, Ltd.

HCA005208/2001

HCA 5208/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5208 OF 2001

____________

____________

Coram: Hon Chung J in Chambers

Date of Hearing: 4 December 2001

Date of Decision: 4 December 2001

_____________

D E C I S I O N

_____________

1.This is the plaintiff's application made ex parte on notice for an interlocutory injunction order in effect to postpone the auction sale of the suit property now scheduled to be held on 6 December 2001.

2.The plaintiff is the beneficiary of a lien against the suit property for the amount of the deposit it paid earlier for the intended purchase of the suit property (together with interest thereon).

3.The defendant is a bank and the mortgagee of the suit property and the auction sale was arranged in exercise of its rights in such capacity. The vendor of the suit property is now in liquidation.

4.The plaintiff indicates that it does not oppose the sale of the suit property as such (but only the manner in which the sale has been conducted or arranged). In fact, the plaintiff also wants the suit property to be sold in order to obtain satisfaction of the judgment debt.

5.The plaintiff's complaint is in short that the defendant has been in breach of its duties as a mortgagee (said to be founded in equity and/or the law of negligence) in failing to conduct or arrange the auction sale properly.

6.I am prepared to decide this application assuming that the plaintiff has surmounted the requisite hurdle regarding the defendant's liability. However, even in such event, there is no reason to expect that plaintiff cannot be adequately compensated by damages for the defendant's alleged breach of duties (refer to above). It has been said that if damages would be an adequate remedy, no interlocutory injunction would normally be granted: see Hong Kong Civil Procedure 2001, para. 29/1/12 (p.460). I do not find that there are any exceptional circumstances to justify a departure from the normal rule.

7.For the above reasons, this application is refused.

Representation:

Mr Louis Chan, instructed by Messrs Kok & Ha, for the plaintiff

Mr Philip Fu, instructed by Messrs Vincent T K Cheung Yap & Co., for the defendant