The Incorporated Owners of Million Fortune Industrial Centre v. Jikan Development Ltd

HCMP002091/2003

HCMP 2091/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2091 OF 2003

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Coram: Deputy High Court Judge Saunders in Chambers

Date of Hearing: 27 February 2004

Date of Judgment: 27 February 2004

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J U D G M E N T

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1.These proceedings began by way of originating summons. The Plaintiff is the owners incorporation of Million Fortune Industrial Centre Limited and is judgment creditor for a sum in excess of $3.5 million against the Defendant, in the originating summons. The Defendant company, Jikan Development Limited, is the registered owner of 14 car parking spaces, 5 lorries spaces and some workshops in a building (the properties).

2.Having obtained it judgment, the Plaintiff registered 6 charging orders pursuant to Order 88, and sought an appointment of receiver to receive the licence fees and rents pursuant to the charging order. The Defendant opposed the Plaintiff's applications. The originating summons was heard on 20 October 2003 before Deputy Judge Gill. On hearing the Plaintiff's application, the judge granted an order for the sale of the properties and appointed the Plaintiff as the receiver of the rent and the licence fees.

3.The judge made an order that the Registrar of the High Court should be appointed to execute all relevant documents required to convey the title of the property or any part thereof. The Plaintiff has subsequently negotiated with potential purchasers for the sale of the properties, and a purchaser has in fact been found.

4.The solicitors for the purchaser have raised a requisition in following terms:

"Requisition 11: Clause 5 of the amended order dated 20 October 2003 provides (inter alia) that:

"The Registrar of High Court be appointed to execute all the relevant documents required to convey the title of the property or any party thereof."

Section 25A of the High Court Ordinance, Cap. 4 provides (inter alia):

"Where the Court of First Instance has given or made the judgment order directing a person to execute any conveyance if that person:

(a) neglects or refuses to comply to comply with the judgment or order; or

(b) cannot after reasonable inquiry be found.

The court may order that the conveyance shall be executed by such person as the court may nominate for that purpose."

In view of the above, the said order should be made by the court to appoint a person other than the Registrar to execute the conveyance. In the event that person failed to do so to apply to the court to appoint the Registrar to execute the same. We opine that the amendment to the said Clause 5 is necessary."

5.It seems to me that the requisition demonstrates a fundamental misunderstanding of the nature of the jurisdiction of the High Court by the solicitors, and proceeds on a flawed interpretation of section 25A. The jurisdiction of the High Court is found in section 12 of the High Court Ordinance which provides:

"S. 12

(1) The Court of First Instance shall be a superior court of record.

(2) The civil jurisdiction of the Court of First Instance shall consist of -

(a) original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen's Bench Divisions of the High Court of Justice in England; and

(b) any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law.

(3) The criminal jurisdiction of the Court of First Instance shall consist of -

(a) original jurisdiction of a like nature and extent as that held and exercised in criminal matters by the High Court of Justice and the Crown Court in England respectively; and

(b) any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law."

6.It is plain that the original jurisdiction of the court is a general jurisdiction and it extends to all causes and actions and is unlimited in amount. It follows that in determining a matter the court may make such machinery orders as it considers appropriate to give effect to the determination it has made. It does so under the inherent jurisdiction. For many years, it has been the practice that the court has appointed the Registrar to execute documents in circumstances where it considers as appropriate.

7.It was suggested to me in the course of argument that interpretation of the court's powers would render section 25A otiose, but that is not the case. If the court, having given a judgment, anticipates the person will accept the judgment and take steps he previously was not prepared to do, for example, to execute the conveyance, an order may be made directing that person to execute the conveyance. But it may be that not withstanding the terms of the judgment the person still refuses to execute the conveyance. They would be subject, of course, to powers of the court for contempt but the court should not, and neither should the plaintiff, have to go through such procedures to achieve the end that the court intends.

8.For that reason, section 25A exists to enable some other person to be appointed to execute the conveyance, and to override any argument that the matter having been concluded, the judge no longer has jurisdiction to further deal with the terms of the order that has been made.

9.For those reasons, I am completely satisfied that under the inherent jurisdiction of the High Court, the court has jurisdiction to appoint the Registrar, in the first instance, as a person to execute any conveyance.

10.I have said the solicitor's requisition proceeded on a flawed interpretation of section 25A. It seems to me that it does not necessarily follow from the provisions of section 25A that the "person to execute any conveyance" should necessarily be the proper person or the person named in the conveyance as the person holding title. It seems to me that there is no reason why that person should not be some other person whom the court directs, or orders, must execute the conveyance in the name of the person who holds title. Such an order being made, the signature from the person authorised has the effect of conveying the title as though the person named in the conveyance had been the person executing the conveyance. When the section is interpreted in this way, and I am satisfied it ought to be, or the jurisdiction of the High Court is viewed in the way in which I have described, it can be seen that the requisition is without foundation.

11.The order made by Deputy Judge Gill is an order that the Registrar execute the conveyance. He will do so in the name of the Defendant; his act will be an act as though it were the act of the Defendant, thereby properly conveying title. To suggest that some subsequent purchaser from the purchaser from the Plaintiff might later say, by way of requisition, that the execution of the conveyance was ineffectual is preposterous. The court, I am satisfied, would uphold the order of the Deputy Judge Gill and find that the conveyance was properly executed.

12.For these reasons, there is no need to amend the order, the Registrar has been given the power by the inherent jurisdiction of the court and by section 25A of the High Court Ordinance to execute the conveyance in the name of the Defendant. When he does so, proper title will be conveyed to the purchaser.

13.There will be no order for costs on the application.

Representation:

Mr Yeung Ming Tai, instructed by Messrs Ho and Tam, for the Plaintiff

Mr Ricky S P Ng, of Messrs Ricky S P Ng and Co., for the Defendant