National Resources Properties Ltd v. Ma Kwok Keung

DCCJ 3062/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3062 OF 2008

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DECISION

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1.This is an application by the Defendant for:-

(a)  Leave to appeal; and

(b) Stay of execution pending appeal.

2.On 13 July 2011 herein, I handed down a Judgment in favour of the Plaintiff against the Defendant. Briefly, I found the subject agreement signed by the parties a genuine conveyance transaction, not a sham one. There was no misrepresentation made to the Defendant.

3.It was also my findings that, under the Agreement, the Defendant had options to decide. He of course could go ahead completing the conveyance transaction, or that he might repay the deposit with damages. However, he did not do either of the above. He neither want to sell the Property nor could make the repayment. He therefore did not contact anyone and simply “disappeared”. Upon being sued under the present proceedings, he made up all sort of excuses trying to evade liability.

4.I further found specific performance not appropriate and ordered, among others, the Defendant to return the deposit to the Plaintiff as well as to pay the damages and costs.

5.The Defendant disagreed with my judgment and issued the present application for leave to appeal and stay. Parties appeared before me on 18 August 2011. They were represented by the same Counsel at the trial herein, Mr. Hon for the Plaintiff and Mr. Chu for the Defendant.

6.Upon consideration of the evidence authorities before me, I have decided to refuse the leave application.

7.Section 63A(2) of the District Court Ordinance (Cap. 336) states that:-

“(2) Leave to appeal shall not be granted unless the judge, the master of the Court of Appeal hearing the application for leave is satisfied that-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the    appeal should be heard.”

I do not consider that the Respondent has satisfied with me on either of the two limbs:-

(a)  Mr. Chu, in his draft Notice of Appeal, raised 9 points. In short, the Agreement was not a genuine transaction and should be set aside. Even if it were, the Defendant had discharged his duty thereof, but not the Plaintiff. It failed to raise requisition through solicitors within time, did not tender payment for balance of the purchase price, and so forth. The Defendant was therefore entitled to forfeit the deposit.

(b) I do not propose to deal with these points, again, as they were canvassed in details at the trial and decided by me in the judgment. It suffices for me to conclude that nothing has been adduced or advanced to convince me to change my view. There is no reasonable prospect of success in the intended appeal.

(c)  I have not heard any argument on the ground that leave should be granted for reason in the interest of justice. In any event, I do not find any grounds justifying the same.

8.As to the stay application, I also see no reason to allow the same:-

(a)  Of course, the starting point is that I am not satisfied that there is any reasonable prospect of success in the intended appeal.

(b)  One also remembers the general principle that the Court does not make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled to.

(c)  However, without a stay, will the appeal be rendered nugatory?

(i) the Defendant deposed in his supporting affirmation that:-

“4. In respect of the stay of execution application set out in the said Summons, the subject property involved in the case herein is one of the most valuable assets I possess. And the fact that I am ordered to, inter alia, pay HK$350,000 plus HK$63,000 to the Plaintiff would imply I do need to dispose of the said property which is a matrimonial home.

5.    My family includes my wife and 2 sons of 17 (who is now studying as a secondary school student) and 22 (who is now working as a clerk) of age are all living in the said property and they then will have to move out and look for new premises. I am also afraid that once the said property is sold, it will render the appeal nugatory since I might not be able to get it back once sold to a third party.”

(ii) The Defendant however did not reveal the entirety of his financial position.

(iii) I remind myself that I decided not to grant specific performance against the Defendant to force him to sell the Property. I only ordered monetary judgment against him.

(iv) It is not disputed that premium was to be payable to the Housing Authority if the Property was to be sold. Other than the mortgagee bank, there were two charging orders absolute having been registered against the Property in 2008. Hence, the Plaintiff only ranks no.5 on this list of secured creditors.

(v) Since the handing down of the Judgment on 13 July 2011, nothing has happened making it inappropriate for the same to be executed.

(vi) Last, but not least, as agreed by both Counsel at the hearing, even if the Plaintiff would like to execute the Judgment by selling the Property, he had to comply with a number of formalities, including applying for charging order nisi, charging order absolute, and then order for sale. All these procedures will certainly take time.

9.Having refused both of the Defendant’s applications, I will also make an order nisi that he shall pay the costs of the Plaintiff thereof, including Certificate of Counsel for the hearing on 18 August 2011, to be taxed, if not agreed.

The Plaintiff was represented by Mr. Kevin Hon of Counsel, instructed by Messrs. Sam Fu & Co.

The Defendant was represented by Mr. George Chu of Counsel, instructed by Messrs. Michael Pang & Co.