Sequoia Asia Inc. v. Ng Ying Cheong

DCMP 1422/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1422 OF 2011

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BETWEEN

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Coram: Deputy District Judge H. Au-Yeung in Chambers

Date of Hearing: 10 August 2011

Date of Judgment: 10 August 2011

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JUDGMENT

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SOME PROCEDURAL MATTERS

1.This is an application by way of Originating Summons and today is the first hearing thereof.

2.According to the affirmations of service produced by the plaintiff, the Originating Summons, the supporting affirmation and a notice of appointment to hear originating summons have been served on the defendant.    

3.I am thus satisfied that there has been sufficient service of these proceedings on the defendant.

4.It is clear under Order 28 rule 3 of the Rules of the District Court that although most originating summonses are not dealt with at the first hearing, the rules do allow originating summons matters to be dealt with at the first hearing if the facts are sufficiently clear and liability is established (Titan Limited v Deng Zhishun (HCMP 4804/1999, unreported, 11^th November 1999)).

THE PLAINTIFF’S APPLICATION

5.This case concerns a private car with registration number PB420 (“the Private Car”).

6.The plaintiff’s case as supported by an affirmation deposed by its sole director and shareholder, Ms Angelia Tan, is that:

(1)   The defendant was his boyfriend at the material time;

(2)   In around December 2009 the plaintiff decided to purchase a private car;

(3)   As Ms Tan was not always in Hong Kong, she agreed with the defendant that the private car to be purchased by the plaintiff would be registered under the defendant’s name;

(4)   The plaintiff subsequently agreed to purchase the Private Car from a friend of Ms Tan at the price of HK$140,000 (“the Price”);

(5)   The entirety of the Price was then paid by the plaintiff to the original owner of the Private Car on 6^th January 2010;

(6)   As agreed, the Private Car was registered in the defendant’s sole name on 8^th January 2010;

(7)   Ms Tan and the defendant broke up afterwards;

(8)   The plaintiff then intended to sell the Private Car but despite repeated effort, Ms Tan could not get in touch with the defendant who did not reply to her telephone calls, emails and letters.

7.Under these circumstances, it is clear that the presumption of resulting trust should apply, so that the defendant is holding the Private Car as trustee for the plaintiff.

8.Courts are normally very wary of giving declaratory judgments in default of defence.  In the present case, the defendant has not filed any Acknowledgment of Service.  However, this appears to be a clear case that such a judgment should be given.  It would be unjust if the plaintiff is left with no remedy (Lam Tat Choi v Chan Suk Yee (HCA 4101/2000, unreported, 3^rd November 2000)).

9.Accordingly, I would make an order in terms of paragraphs 1, 2, 3 and 4 of the Originating Summons with costs to the plaintiff, to be taxed if not agreed.

10.The costs order shall become absolute in the absence of application within 14 days.

Mr. Herbert LEUNG instructed by Messrs. Edmund Cheung & Co. for the Plaintiff.

Defendant in person, absent.