Cheng Chung Shan v. Li Siu Man

DCMP 3291/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3291 OF 2005

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BETWEEN

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Coram : Deputy Judge W. Lam in Chambers

Date of Delivery of Decision : 30^th November 2005

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DECISION

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1.The Plaintiff (“P”) by summons today seeks an order to remove his name from being a co-proprietor of a residential property situated at North Point.  The Defendant (“D”) who is P’s ex-wife and who is receiving maintenance from P, is absent today. 

2.P informs me that the amount of maintenance as ordered by the Family Court was upheld on appeal, and he pays an amount on the first day of each month to the Legal Aid Department which transmits same to D.  P says D only has a 4-year-old residential address and an email address if he needs to contact D, but the Summons today which he had sent via ordinary post was returned undelivered, and his email was not replied.

3.P has filed documents to show that the Lands Registry has the maintenance order in their records showing “Pending registration” but the order has not officially been registered.  P now wishes to sell the property, but the vendor’s solicitors wanted the title not to be encumbered by P’s name as he has a maintenance order against him “pending registration”, and the Lands Registry refuses to remove this “pending encumbrance” except under order of a court. 

4.It therefore appears to me that D prima facie has an interest in P’s property, and so D should be heard before I can make the order sought.  Removing P’s name from the title means a possible risk of D not being able to obtain at least some security in case her maintenance is not paid in future, because P’s co-owner will be able to sell the property free of encumbrance, whether it be a pending or a full one.

5.In my view the most appropriate course for today is for P to try his best to notify D of his application, e.g. via the Legal Aid Department who is likely to have D’s bank account details and via her bank ought to be able to trace D’s present address, if necessary seeking a court order for discovery for same, or via D’s internet service provider, so that via the Legal Aid Department P’s Summons will reach D.  All notices should be sent by registered post.  Proof of due diligence will at least satisfy this Court as to why D may be absent at the next hearing.

6.Today’s hearing will now be adjourned to Wednesday 28th December 2005 at 14:30 hours in Court No.7 for service, D possibly appearing, and if not then for P to show what efforts have been made to notify D.  On the safe side one hour will be reserved on that day for arguments.

Applicant: Mr. CHENG Chun-shan, in person.

Respondent: in person, absent.