Li Chung Sham (or Shum) v. Li Chung Yee

HCMP000165/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

NO. 165 OF 1968

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 17 November 1971

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DECISION

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1. This is an application by the defendant's solicitors to vaoate the lis pendens registered on the 20th January 1971 at the District Office, Tsuen Wan by Memorial No.86768 in so far as it relates to Lot 2175 in D.D. 449 Tsuen Wan, New Territories as a result of an order of Mr. Justice Scholes dated the 20th February 1969.

2. The plaintiff instituted proceedings as one of the beneficiaries of the estate in 1968 against the executor of the will of the deceased relating to disputes conc rning the estate whereby he sought relief for accounts to be given.

3. The order of Mr. Justice Scholes which was by consent ordered that various accounts be taken and the originating summons was adjourned sine die. The parties subsequently came to an agreement and a dead of family arrangem nt was executed on the 22nd April 1971 which was approved by the court in O.J.M.P. 102 of 1971 on the 25th May, 1971.

4. One of the conditions prior to the application to the court was that the plaintiff would file a notice of discontinuance to these proceedings. The plaintiff has objected to the lis pendens being vacated on the grounds that he only executed the deed of family arrangement in escrow and therefore the deed was not final. A further objection raised by the plaintiff was that Re was not made a party to the summons issued by the defendant which approved the deed of family arrangement.

5. It is clear from the correspondence that the plaintiff executed the deed and was quite prepared for the court to sanction its terms by a court order. It is my opinion that there was no necessity for the plaintiff to be represented upon the hearing in O.J.M.P. 102/71 for it was merely a formal application embodying the terms arrived at between the various beneficiaries including the plaintiff. Accordingly I agree that the present proceedings became dead upon the court's approval of the deed of family arrangement on the 25th May, 1971. It is quite inconsistent for the plaintiff to say that he should have been joined as a party and that he would have opposed the application as being premature. It is not in dispute that the plaintiff under the deed of family arrangement has in fact no interest in the property, the subject of the lis pendens with the result that his refusal to consent to an order vacating its registration will prejudice those beneficiaries who are entitled. If the plaintiff feels aggrieved his remedy is to take action against the defendant under the deed of family arrangement.

6. The plaintiff contends that the deed was executed in escrow but I am of the opinion that the deed was executed in scrow only pending the court's approval which was given on the 25th May, 1971. In fact the plaintiff's solicitor by his letter of the 20th April, 1971 to the defendant's solicitors said that the plaintiff was most anxious that the summons be issued right away. Both the summons and affirmation filed in support were approved by the plaintiff's solicitor in a letter dated the 3rd May, 1971 addressed to the defendant's solicitors.

7. In all the circumstances I do not consider that the plaintiff has any justification for withholding his consent to vacating the registration of the lis pendens. There will therefore be an order in the terms of the defendant's summons with costs.

8. Dated this the 17th day of November, 1971.