Lam Wing Man v. Cheung Mui Heung

HCA 2807/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2807 OF 2000

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BETWEEN

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HCA 4939/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4939 OF 2001

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BETWEEN

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Before: Hon Reyes J in Chambers

Date of Hearing: 5 November 2004

Date of Judgment: 5 November 2004

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J U D G M E N T

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1.We will deal with the interest point first and then we will take it from there. 

2.I am afraid on the interest point I am against Mr Ng (appearing for the defendant).  I am not persuaded by his arguments.  When the agreement scheduled to the consent order of Waung J dated 9 April 2003, says in paragraph 2 that the plaintiffs shall receive the resumption compensation in the sum of $6,492,306.60 or any appropriate sum as determined by the District Lands Officer, that clearly means that interest is included.  The resumption principal plus the interest constitute the resumption compensation.  That is, the appropriate sum from which the parties are to receive their respective shares.

3.If I am wrong on that, the entitlement of the plaintiffs to a share of the interest is a matter of implication into paragraph 2 of the agreement.  The officious bystander looking over the parties’ shoulders and suggesting that interest should be included, would be met by the cold stares of the parties who would say, “Go away!  Of course, that goes without saying!” 

(Submissions by counsel)

4.There is no express or implied term within the agreement scheduled to the consent order of Waung J, requiring the defendant to sue Mr Tai in respect of Lot No. 2517.  The agreement was that the defendant would apply to the District Lands Officer for the resumption compensation in relation to “the Land”.  The expression is defined in the agreement as including Lot Nos. 2517, 2518, 2539, 2540 and 2541.  The defendant would accept whatever sum the District Lands Officer shall decide he is entitled to for the Land.  The District Lands Officer’s decision on the matter would be final.

5.Having looked at the matter, the District Lands Officer said that the defendant was not entitled to compensation in respect of Lot No. 2517 because (as far as the District Lands Officer was concerned) the defendant had not got a possessory title to Lot No. 2517.  Therefore, compensation was only payable on the basis of the defendant’s possessory title to the other lots. 

6.In those premises, the defendant did precisely what he was supposed to do in respect of the Land in applying for compensation.  He did not receive any compensation from the District Lands Officer for Lot No. 2517 due to a defective title.  There is no further obligation on him to sue Mr Tai to perfect his possessory title. 

7.I note Mr Ng’s concession to the following effect: If the plaintiffs’ actions are discontinued, and if the defendant should later sue Mr Tai successfully for a possessory title on Lot No. 2517, and if the defendant obtains any resumption compensation in relation to Lot No. 2517, but fails to share that compensation with the plaintiffs in their due proportion, then any discontinuance of these actions will be without prejudice to the plaintiffs’ rights to mount actions against the defendant for a share of the compensation. 

8.To conclude on Lot No. 2517, for the reasons I have mentioned, I am against the plaintiffs.

(Submissions by counsel)

9.I deal with the question of my jurisdiction to order discontinuance of the actions.  I think that Mr Ng is correct.  The source of my jurisdiction is an implied term to the agreement appended to the consent order.  Implicit in the agreement must be the understanding that, if all the parties fulfill their respective obligations under the agreement, one or other party can apply to this court for the action to be discontinued.  It is not right for an action to be left hanging in suspense for a long time, where nothing more needs to be done by any party in relation to the action.  So, on the assumption that all obligations of the parties have been fulfilled under the agreement scheduled to Waung J’s order, the parties have impliedly given the Court jurisdiction to discontinue the action upon application.

(Submissions by counsel)

10.There shall be no order as to costs.

Ms May Wu of Messrs Liau, Ho & Chan, for the Plaintiff (in HCA2807/2000)

Mr Thomas Au, instructed by Messrs Terry Yeung & Lai, for the Plaintiff (in HCA4939/2001)

Mr Ken Ng Chi Man, instructed by Messrs Choi & Liu, for the Defendant (in both actions)