Dah Sing Bank Ltd v. Durrant Simon Patrick Michael

DCCJ 4618/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4618 OF 2009

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Decision

1.This is the Defendant’s appeal against the decision of Master KK Pang given on 22^nd Nov., 2010, under which the Defendant’s summons dated 17.11.2010 was dismissed. In the said summons the Defendant applied to remove the charging order imposed on the premises known as Unit No. 04, 42^nd Floor, southern Garden, No. 2 Obrien Road, Hong Kong.

2.On 22.11.2010, Master KK Pang (“Master Pang”) passed the following decision and reasons: -

“P claimed D for credit card debt of $86,347.38, contractual interest at 36% p.a. thereon and costs. Writ was issued on 27/10/2009. No notice of intention to defend having been given by D, judgment was entered on 4/12/2009. P obtained charging order nisi on 10/12/2009;

D took out Summons on 15/12/2009 for: (1) stay of execution; (2) adjournment of the Order Nisi’s returnable date for argument. The First hearing of the Summons took place on 23/12/2009. On 23/12/2009, Master B Mak ordered that, inter alia: (1) hearing of charging order application be adjourned to 2/3/2010, with 2 hours reserved; (2) filing and service of affidavit ev. On 2/3/2010, D was absent. Charging order Absolute dd 2/3/2010 was made in D’s absence and on the same day Master B Mak ordered that D’s Summons dd 15/12/2009 be dismissed with costs; D took out Summons dd 27/3/2010 for setting aside Order dd 2/3/2010, returnable on 8/4/2010. P’s solicitors being absent on the return date, however, in view of that there was no Affirmation of Service filed by D, on 8/4/2010 Master S Lo ordered that hearing of the Summons dd 27/3/2010 be adjourned to 10/5/2010. Having heard the parties, on 10/5/2010 Master Lo ordered that D’s summons dd 27/3/2010 be dismissed with costs.

The instant application is the 3^rd application taken out by D for the discharge of the charging order.  The repetitious application by themselves are an abuse of the process of the court and, in my view, for this reason alone, I should dismiss this application.  I have patiently listened to D, appearing in person.  D did not dispute the judgment debt.  D contested the charging orders on the ground that the registration of the charging orders harmed his credit ratings and as a result banks refused his loan applications.  He said he could not obtain fund to pay off the judgment debt unless the charging orders were set aside, and, therefore, they should be set aside.  I did not accept D’s contention.  Having obtained a Judgment of this court, P is entitled to enforce it by the making of the charging order.  In any event, D’s application should also be dismissed on the merits.”

(Underlines provided)

3.The ground of appeal is that Master Pang had already made his decision before the hearing, paid no heed to the fact that the charging order was actively preventing the settlement of the debt.  As reflected by the part of the Decision underlined, this is simply untrue.  I have listened to the recording of the hearing.  From 11:30am to 11:36am and from 11:38am to 11:42am the Defendant did make his submissions, and there were dialogues between him and Master Pang. From 11:36am to 11:38am the Plaintiff’s representative made her submissions. From 11:42am to 11:47 am Master Pang delivered his Decision.  This  proves that Master Pang had listened to the submissions of the parties before he delivered his decision.  He also alleged that Master Pang read from a pre-written decision.  I am not able to say if Master Pang read out his decision from a pre-written decision or not.

4.This application being an appeal against a master’s decision, I am entitled to consider the matter afresh.

5.This morning, the Defendant submitted a document.  In this document the Defendant said that the debt is not contested, but it was not being repaid because of a dispute over airmiles.  The Defendant told me that he had problems in getting a loan to repay the debt because of the existence of the charging order.  In this regard, he has approached multiple banks and finance companies.

6.The Defendant does not dispute the existence of the debt upon which a judgment in favour of the Plaintiff was entered.  He has not made any payment to satisfy the debt.  It is therefore legitimate for the Plaintiff to apply to the Court to impose a charging order on the premises in question.  There is simply no ground to set aside the charging order as the Defendants applied for in his summons dated 17.11.2010.  Master Pang is correct to dismiss the said summons.  Accordingly I dismiss the Defendant’s appeal.

Costs

7.The Plaintiff is not present today.  I therefore make no order as costs regarding this application.

The Plaintiff: absent

The 1^st Defendant: present, unrepresented.