Re Li Fat

HCMP1078/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1078 OF 2009

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Before : Hon Chu J in Court

Date of Hearing : 10 September 2009

Date of Judgment : 10 September 2009

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J U D G M E N T

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1.This is an ex parte application for an order that a Prohibitory Order dated 8 February 1918 (“the Prohibitory Order”) registered in respect of the property known as The Remaining Portion of Section B of Lot No.141 in D.D.9, Tai Po, New Territories (“the Property”) be discharged and vacated from the Land Registry.   

2.The applicant, Mr Li Fat (also known as Li Koon Fat), is the registered owner of the Property.  He has entered into a sale and purchase agreement dated 19 May 2009 to sell the Property.  He took out the present application in order that he can satisfy the intended purchaser that he is able to give a good title to the Property.

3.The application is made under section 19 of the Land Registration Ordinance, cap.128 and was initially brought by Originating Summons.  It was subsequently amended to become an Originating Motion having regard to the provision in section 20 of the Land Registration Ordinance.

4.At the hearing, Mr Chiu submits that the court may also grant the relief under its inherent jurisdiction.  He also draws assistance from section 17 of the Land Registration Ordinance.

5.It is correct that applications to vacate registrations in the Land Office may either be made under the provisions of the Land Registration Ordinance or by invoking the Court’s inherent jurisdiction to vacate a registration upon good cause shown: Hong Kong Resort Co Ltd v. Anstaltnybro (formerly named Anstaltsoro) and Others, unreported, HCA 785 & 1006 of 1978, Li J (12th May 1978) para.10; Thian’s Plastics Industrial Co Ltd v. Tin’s Chemical Industrial Co Ltd [1971] HKLR 249.

6.In the present case, the Prohibitory Order was registered by a Memorial No. TP 38328.  Mr Chiu contends that the nature and effect of the Prohibitory Order cannot be ascertained.  However, there is in the Memorial an entry of “S.D.C. Case no. 33/18”, which should stand for Shatin District Court case no. 33 of 1918.  Further, there is at the top of the Memorial a notation of “Case referred settled”. 

7.Section 19 of the Land Registration Ordinance provides:

“The court or judge before whom any property sought to be bound is in litigation, may on the determination of the lis pendens, or during the pendency thereof, where the said court or judge is satisfied that the litigation is not prosecuted bona fide, or for other good cause shown, make an order for the vacating of the registration in the Land Registry of such lis pendens without the consent of the party who registered it, and may direct the party on whose behalf the registration was made to pay all the costs and expenses occasioned by the registration or the vacating thereof, including the costs of the application to vacate, or may make such other order as to such costs or any of them as to the said court or judge may seem just.”

8.Plainly, this is not a case for invoking section 19 because there is no material to show that Prohibitory Order was or is a lis pendens. On the contrary, Mr Chiu submits that the Prohibitory Order is in the nature of an enforcement of judgment: see also the judgment in Hung Heung Keng v. Challenge Way Investment Ltd, unreported, HCMP 789/2006 (14 June 2006).  And even if the Prohibitory Order were a lis pendens, it would have ceased to be so in light of the notation at the top of the Memorial.  There is also no occasion for this court to be involved in the determination of any lis pendens.  As such, it is an error to bring the application under section 19 of the Land Registration Ordinance.

9.The proper basis for the application should have been section 17 of the Land Registration Ordinance, which provides that:

“The registration of a judgment, order or lis pendens shall cease to have effect at the end of 5 years from the date of registration, but the judgment, order or lis pendens may be re-registered from time to time and, if so re-registered, shall have effect for 5 years from the date of re-registration.”

10.Alternatively, the applicant could have relied on the inherent jurisdiction of the court to vacate a registration.   

11.Given that the Prohibitory Order was registered in 1918 and there is no record of any re-registration thereafter, the Prohibitory Order has since 1923 ceased to have any effect.  As such, its registration ought to be vacated.

12.Although the present application was incorrectly brought under section 19 of Land Registration Ordinance, in the interest of costs and time saving and considering there no prejudice would be occasioned to any third party, I will exercise the inherent jurisdiction of the court and order that the registration of the Prohibitory Order be vacated.  There is no order as to costs.

Mr Victor Chiu instructed by Messrs Kevin Li for the applicant.