Hau Chat Tong v. Hau Chak Lam

HCA 3778/2003

in the high court of the

hong kong special administrative region

COURT OF FIRST INSTANCE

ACTION NO. 3778 OF 2003

BETWEEN

Before:  Hon Rogers VP (sitting as an additional Judge of the Court of First Instance) in Chambers

Date of Hearing: 10 August 2005

Date of Judgment: 10 August 2005

________________________

J U D G M E N T

________________________

1.This is an appeal from a decision of the Master given in April of this year on an Order 14 application for summary judgment.  Since that hearing both parties have filed evidence.

2.The plaintiff’s case is quite simple.  It is a claim for a loan of a million dollars which was said to have been made to the defendant in order for the defendant to pay his former wife as part of the settlement on the divorce.

3.The defendant’s defence is that the loan was extinguished because the defendant sold the plaintiff his one-third share in a property which was owned by himself and the plaintiff, who was his brother, and a third brother.  That property was in Kam Tsin Village which is very close to the Castle Peak Road.

4.The conveyancing documents show that the defendant’s interest in the property was sold for a quarter of a million dollars.  There is also a confirmation note which was signed by the defendant at the time.  That note was handwritten in Chinese and it reads, “I am the vendor of the property.  The whole or part of the purchase price in relation to the sale and purchase of the captioned property, namely, the total sum of HK$250,000 and/or other receivable monies, has been duly received by me …”, and then it goes on.

5.As was pointed out by Mr Hui, on behalf of the defendant, this note, however, raises some queries because it refers to part of the purchase price and other receivable monies. 

6.The plaintiff has filed a surveyor’s report which indicates, even on the plaintiff’s case, that the plaintiff had paid three times the value of the defendant’s interest for this particular plot of land which to-date, I observe, does not seem to have been used.

7.It is true that at the time of the conveyance which was November 1997, the property market was still high.  The Asian Financial Crisis had just started at the end of October, but it may not have been appreciated quite what effect that would have on property and it may be that people were exceedingly bullish about the possibility of property and property in the New Territories.  I have to say that the comparables which have been taken in the surveyor’s report are not in the village itself but seem to be well outside the village and, on the face of it, I am not altogether convinced that the comparables are true comparables for this plot of land.

8.The plaintiff has not produced any copies of banking documents relating to the payment of the $250,000.  Mr Chan, who has appeared on behalf of the plaintiff, has said that they did not consider it was necessary because of the handwritten document and, indeed, the receipt clause in the conveyancing documents.  However, the conveyancing documents themselves, one has to appreciate, were in English and the defendant obviously cannot read or write English but he can, no doubt, read Chinese, and therefore one has to look at the handwritten note a little bit more carefully.

9.I have to say, at the end of the day, although I have my suspicions in respect of the defendant’s case - and I am by no means wholly convinced of it - I still consider this is a case which should go to trial.  There is a dispute of fact which cannot be resolved on paper as to what took place at the time of the conveyance.  The trial will not take very long.  The case has been continuing since the writ was issued on 10 October 2003 and, in my view, what should happen is that this should be set down for trial as soon as possible.  I cannot see that it is going to cause a great deal of difficulty in that respect and I propose to give directions.

Mr Chan Chung-ming Josiah, instructed by Messrs Kenneth Woo & Co., for the Plaintiff/Respondent

Mr Lawrence Hui, instructed by Messrs Hagon Wai & Partners, for the Defendant/Appellant