Foshan City Commercial Bank v. Chen Yong Yi and Another
Read the full judgment text of HCA 15922/1998 on BabelCite. This High Court CFI judgment was delivered on 22 April 2002.
1. There were 4 applications before this court:
Cites 3 cases
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HCA002202A/1999 HCA 15922/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE NO. 15922 OF 1998 ____________
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IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE NO. 2202 OF 1999 ____________
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IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE NO. 8877 OF 1999 ____________
____________ Coram: Hon Chung J in Chambers Dates of Hearing: 19 March 2002 and 22 April 2002 Date of Decision: 22 April 2002 Date of Handing Down Reasons for Decision: 27 April 2002 ___________________________ REASONS FOR DECISION ___________________________ 1.There were 4 applications before this court:
At the end of the hearing, I made an order in terms of the above mentioned applications; the following are the reasons. 2.The nature of the plaintiff's claim in HCA 15922 has already been summarised in the "Reasons for Decision" handed down on 17 April 2000. In short, the plaintiff claimed that it is a banking institution in the Mainland and had been deceived by the defendants into advancing loans to 2 companies in the Mainland. Unkown to the plaintiff, the funds so obtained were later used to invest in, develop or improve real properties in Hong Kong. At the end of the hearing on 13 January 2000, I made a number of orders including the discharge of the ex-parte Mareva injunction order dated 2 February 1999 and the re-grant of a Mareva injunction order in similar terms. The costs relating to the injunction orders were ordered to be paid by the plaintiff to the defendants forthwith. Those costs were later taxed and certified by the taxing master. 3.The defendants subsequently took out a summons asking for the plaintiff's action in HCA 15922 to be struck out on the ground that the plaintiff failed to pay the taxed costs relating to the injunction orders. At the hearing on 9 January 2002, the plaintiff indicated that it would pay those costs within 21 days. The plaintiff also did not object to the defendants' application for security for costs in the sum of $8,039,786.00 and accordingly an order (in the form of an "unless" order) was made for security for costs in that amount to be provided within 21 days. 4.Despite the plaintiff's said indication and the "unless" order of 9 January 2002, security for costs was not provided and taxed costs were not paid. As a result, on 5 February 2002, the action in HCA 15922 was dismissed. The plaintiff did not oppose the defendants' application for dismissal of its action. 5.Further, on 20 February 2002, the defendants successfully discharged the Mareva injunction order re-granted on 13 January 2000 on the ground that the underlying action, namely, HCA 15922 had earlier been dismissed. 6.It is undisputed that the said $1,384,830.00 was paid into court on 19 September 2001 by the Director of Lands by way of compensation for Government's resumption of parts of the real properties held in the defendants' name. Three matters should be noted:
7.Solicitors for the plaintiffs in the 3 actions raised, in summary, 3 grounds for opposing the 4 applications:
8.In relation to the plaintiffs' point (1) above, irrespective of whether their claims in HCA 2202 and HCA 8877 appear to constitute a good cause of action, these actions remain claims only. Whether the claims can successfully be established has to await the trial of those actions. The plaintiffs' argument that somehow because they appear to have a good cause of action, the compensation should be held in court is tantamount to arguing the defendants should be enjoined from disposing the sum paid-into court in the absence of an injunction order. I do not agree with this argument. 9.In relation to the plaintiffs' point (2) above, the consent summons dated 29 August 2001 was executed by 3 parties, namely, the plaintiffs in the 3 actions, the defendants in the 3 actions and the Department of Justice representing the Director of Lands. The intention of that paragraph is obviously to require prior notice to be given to all parties concerned before an application for payment out of the compensation money is made. There is however no requirement regarding the form of the written notice. Bearing in mind the purpose of paragraph 4 of the consent summons, a summons taken out for the payment-out of the said sum should constitute a good and sufficient written notice. There is, therefore, no substance in the plaintiffs' point (2) above. 10.In relation to the plaintiffs' point (3) above, solicitors for the defendants produced, for the examination of this court and solicitors for the plaintiffs, copies of searches made at the Sai Kung Land Register on 20 April 2002. These records related to the 3 lots earlier resumed by Government and show that the writs in HCA 2202 and HCA 8877 were in fact not registered as lis pendens against those lots. Having seen the said lands search records, solicitors for the plaintiffs indicated that he was mistaken about the registration of the writs and abandoned the plaintiffs' point (3). 11.By reason of the above matters, I find that there is no valid ground for opposing the 3 summonses for payment out of the balance of the sum paid into court earlier. The application for vacating the lis pendens in HCA 15922 was not opposed.
Representation: Mr Ng Siu Pang, of Messrs Ng & Shum, for the plaintiffs Mr Tam Wai Lung, of Messrs Wong, Poon, Chan, Law, & Co., for the defendants |
Cases cited in this judgment
Further hearings and rulings under HCA 15922/1998