Cheung Sung Sun v. Chan Wah Fan and Others

HCMP 2533/2009

in the high court of the

hong kong special administrative region

court of appeal

miscellaneous proceedings no. 2533 of 2009

(on AN INTENDED appeal from HCA NOs. 1592 and 1804 of 2009)

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HCA 1592/2009

BETWEEN

HCA 1804/2009

BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 8 December 2009

Date of Decision: 8 December 2009

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D E C I S I O N

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1.This is an application made by summons, first of all that the plaintiff be granted leave to appeal against the order of Reyes J made on 7 December 2009 discharging the injunction order made by Burrell J on 17 July and continued on 28 August by Saunders J, and, accordingly, that if leave be granted, that the order of Reyes J be stayed pending determination of the plaintiff’s appeal.

2.Such are the law’s delays that this matter has come before me this morning.  I do not claim to have read the papers.  I have read such of the documents as have been put before me and the skeleton argument.

3.In brief, my understanding of the situation is this:  that the person who was the original plaintiff in High Court Action 1592 and 1804 of 2009 entered an oral agreement with a lady who is a developer.  That oral agreement was in respect of the development of a house in the New Territories.  When I made inquiries, I was told that it was an oral agreement, which causes me some concern.  Moreover, I am by no means satisfied at present that what is taking place is in accordance with the Government policy in respect of development of houses in the New Territories.  (Post Judgment note see Madam Chung Mui Teck and others v Hang Tak Buddhist Hall Association Ltd. and another, [2001] 2 HKLRD 471.)

4.But be that as it may, it would seem that this developer, who has now been joined as a plaintiff to this consolidated action, is developing some 63 houses in the New Territories, of which at least two have been built.  One of them is the property which is the subject of the present action, which was, I assume, developed in the name of the original plaintiff.

5.What is said, as I understand it, on the original plaintiff’s behalf – Mr Cheung - is that he was tricked into signing various documents.  He lives in a one-bedroom council flat in Leeds, I am told.  He is illiterate.  Nothing has been shown to me that indicates that he is of any substance whatever.  It would perhaps appear that he is using his rights as a one-time indigenous occupant of the New Territories to “turn a penny” in relation to this development.

6.Mr McCoy, who has appeared on his behalf and on behalf of Madam Luk, puts the case that the injunction is required in this case because there is the development and the development would be, as I understand it, inconvenienced, or at least harmed, if this one house were sold.  For the moment, I cannot see why that should happen.  In any event, what Mr McCoy is concerned about on behalf of the plaintiffs is that the defendants, who have now acquired various sections of this house which has been developed, might onsell it.

7.In brief, the judge said that the 2nd plaintiff, or Madam Luk, the developer, who has now been made the 2nd plaintiff in this action, has already adequate protection by reason of registration of her claim as a Lis Pendens, and that this would give notice to any potential purchaser.

8.At the moment, I am not convinced he is wrong.  It seems to me he has taken a robust decision.  I am prepared to give the plaintiffs leave to appeal if they so choose, partly because I am not wholly familiar with this case, but, nevertheless, I am not convinced that Reyes J was wrong in his approach and I am not prepared to grant an injunction pending the hearing of the appeal, if the plaintiffs see fit to proceed with it.

9.Leave to appeal.  Application for injunction refused.

Mr Gerard McCoy SC and Mr George Lam, instructed by Messrs Lily Fenn & Partners, for the Plaintiffs/Applicants

Mr Clive Grossman SC and Mr Kenneth Wong, instructed by Messrs Rene Hout & Co, for the Defendants/Respondents