Chan Hon Leung v. Chan Tit Leung

DCCJ 2580/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2580 OF 2009

BETWEEN

Before:   Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing:   9 September 2009

Date of Delivery of Decision:   9 September 2009

D E C I S I O N

1.This is the Plaintiff’s application made under Order 43 of the Rules of the District Court for a summary order for accounts to be taken.  The Plaintiff claims as co-owner of the property known as Flat 6, Ground Floor, Tak Yan House, 53-75 Tai Pa Street, Tsuen Wan (“the Property”).  The other co-owner is the Defendant, the Plaintiff’s elder brother. 

2.The Plaintiff claims that by a Deed of Gift dated 22 June 2007, his father, Chan Nam, had assigned his half share in the Property to him subject to and with the benefit of the existing tenancies.  The Plaintiff claims that the Property had been let out for use as a restaurant under a tenancy agreement at a monthly rental of $47,000.  The Plaintiff claims that he is entitled to an order that the Defendant, his elder brother, should give an account in respect of all the rental income received in respect of the Property since 22 June 2007.  The Plaintiff further claims for an order for the Defendant’s payment of all amounts found to be due on the taking of the accounts.

3.By way of Defence, the Defendant has alleged that the father, Mr Chan Nam, lacks the mental capacity to execute the Deed of Gift.  The Defendant also suggests that other amounts are due from the Plaintiff to him in relation to the estate of their deceased mother. 

4.The parties have since filed evidence setting out disputed facts in relation to the circumstances of the signing of the Deed of Gift, the Plaintiff’s demand for the rent in respect of the Property, amounts due from respective parties, and essentially disputing the Defendant’s liability. 

5.The summary order for accounts provided for under Order 43 is only appropriate where it is clear that there are no other preliminary questions to be tried either on facts or on law.  On the state of the pleadings and evidence filed, there are clearly hotly disputed issues between the parties as to facts, and in particular, as to whether the Deed of Gift is valid and whether the Plaintiff has any interest in the Property as derived from the disputed Deed of Gift.

6.In my judgment, it is clearly inappropriate for an order to be made under Order 43 at this stage for accounts to be taken.  The matter should proceed to trial in the usual manner for the parties to be cross-examined.  The Plaintiff’s application by summons issued on 25 June 2009 is accordingly dismissed with costs.

Plaintiff, in person, present

Defendant, in person, present