Leung Kwai Ling v. HK Glory Properties Ltd
Read the full judgment text of HCA 347/2013 on BabelCite. This High Court CFI judgment was delivered on 13 August 2013.
1. The subject matter of dispute in HCA347/2013 and HCA432/2013 (“ Subject Actions ”) concerns the redevelopment of Lai Sing Court, 13-15 Tai Hang Road, Hong Kong (“ Old Building ”) that was built on Inland Lot No.7903 and the Extension thereto (“ Land ”). The Lai Sing Court Redevelopment Project (“ Redevelopment Project ”) involved the demolition of the Old Building and the erection of a new development in its place known as Serenade, No.11 Tai Hang Road, Hong Kong (“ New Building ”).
Cites 5 cases
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HCA 347/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 347 OF 2013 ________________________ BETWEEN
________________________ HCA 432/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 347 OF 2013 ________________________ BETWEEN
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_______________ D E C I S I O N _______________ I. INTRODUCTION 1.The subject matter of dispute in HCA347/2013 and HCA432/2013 (“Subject Actions”) concerns the redevelopment of Lai Sing Court, 13-15 Tai Hang Road, Hong Kong (“Old Building”) that was built on Inland Lot No.7903 and the Extension thereto (“Land”). The Lai Sing Court Redevelopment Project (“Redevelopment Project”) involved the demolition of the Old Building and the erection of a new development in its place known as Serenade, No.11 Tai Hang Road, Hong Kong (“New Building”). 2.The plaintiff in the Subject Actions and her husband Lee Yiu Kei (“Lee”) as joint tenants were the registered owners of Flat B on the 13th floor of Block B and Carpark No.57 on the Lower Ground Floor of the Old Building (“Old Unit”). 3.The defendant in HCA347/2013 (“HK Glory”) was the developer of the New Building, and the defendant in HCA432/2013 (“HK Land”) was the guarantor for the Redevelopment Project pursuant to a Development Agreement dated 1 May 2001 (“Development Agreement”) as supplemented by a subsequent agreement (see paragraph 32 below). HK Glory was/is a subsidiary of HK Land. II. RELEVANT SUMMONSES IN HCA347/2013 4.On 22 February 2013, the plaintiff issued a Writ of Summons and commenced HCA347/2013. By the Indorsement of Claim, the plaintiff claimed for “compensation & damages for negligence and other claims, with claim amounts in statement of claims (to follow), for claims against defendant”. On 6 March 2013, the plaintiff served the Writ of Summons on the defendant’s solicitors (“JSM”). On 7 March 2013, JSM on behalf of HK Glory filed acknowledgment of service giving notice of intention to defend. 5.On 15 April 2013, HK Glory issued a summons (“D’s 347 Summons”) against the plaintiff for inter alia the following orders:
6.On 15 April and 13 June 2013 respectively, HK Glory filed the affidavits of Robert Yau Chung Wong (“Mr Wong”) in support of D’s 347 Summons. The plaintiff filed her affidavits in opposition on 30 April, 6 May, 6 May, 28 May, 30 May, 30 May, 19 July and 19 July 2013 pursuant to my order dated 9 May 2013[1] and my order dated 1 August 2013.[2] 7.On 17 April 2013, the plaintiff gave written notice of intention to enter default judgment against HK Glory under Order 19 rule 8A of the RHC for failing to serve their Defence within the prescribed deadline. On 19 April 2013, the plaintiff issued a summons to enter default judgment against the defendant (“P’s 347 1st Summons”). On 22 April 2013, the plaintiff filed her own affidavit in support. 8.On 26 April 2013, the plaintiff issued a summons (“P’s 347 2nd Summons”), and in paragraphs 1, 3 and 4 thereof asked for the following orders:
The plaintiff filed her own affidavit in support on 26 April 2013. 9.Pursuant to my order dated 9 May 2013, the affidavits filed and served by the plaintiff and HK Glory for D’s 347 Summons shall also stand as their respective affidavits for P’s 347 1st Summons and for paragraphs 1, 3 and 4 of P’s 347 2nd Summons. 10.On 23 July 2013, the plaintiff filed and served voluntary further particulars of her Statement of Claim (“347/13 Particulars”). In her supplemental skeleton submissions dated 29 July 2013, Ms Leung, solicitor for HK Glory and HK Land, maintained that the 347/13 Particulars also disclosed no reasonable cause of action, were frivolous and vexatious and/or were an abuse of court process. She sought to strike out the 347/13 Particulars. 11.The plaintiff lodged her written skeleton submissions dated 28 July 2013, lists of authorities dated 28 and 29 July 2013, and chronologies of events dated 28 and 29 July 2013 by fax, and relied on her previous skeleton submissions, lists of authorities and chronologies of events lodged for her other summonses in HCA347/2013 (which had been disposed of by my orders dated 30 April, 9 May, 15 July and 1 August 2013[3]). Ms Leung relied on her skeleton submissions dated 22 July 2013 with chronology of events and list of authorities annexed thereto, and her supplemental skeleton submissions as aforesaid. III. RELEVANT SUMMONS IN HCA432/2013 12.On 8 March 2013, the plaintiff issued a Writ of Summons and commenced HCA432/2013. By the Indorsement of Claim, the plaintiff claimed for “compensation and damages for negligence and other claims” to be detailed in the Statement of Claim then yet to be filed. On 2 July 2013, the plaintiff filed her Statement of Claim and served the Writ of Summons on JSM. On 10 July 2013, JSM on behalf of HK Land filed acknowledgment of service giving notice of intention to defend. 13.On 16 July 2013, HK Land issued a summons (“D’s 432 Summons”) against the plaintiff for inter alia the following orders:
and filed Mr Wong’s affidavit in support of such summons. 14.The plaintiff lodged skeleton submissions dated 28 July 2013, lists of authorities dated 28 and 29 July 2013, and chronologies of events dated 28 and 29 July 2013. She also relied on (a) the skeleton submissions, chronologies of events and lists of authorities she lodged for the purpose of D’s 347 Summons, P’s 347 1st Summons, and paragraphs 1, 3 and 4 of P’s 347 2nd Summons in HCA347/2013, and (b) the previous skeleton submissions, chronologies of events and lists of authorities she lodged for the purpose of her other summonses in HCA347/2013 (which had been disposed of – see paragraph 11 above) to oppose D’s 432 Summons. IV. REDEVELOPMENT PROJECT (a) Development Agreement 15.Pursuant to the Development Agreement signed by HK Glory as developer, HK Land as guarantor and the majority owners of their respective units in the Old Building (including the plaintiff and Lee) (“Majority Owners”), the parties agreed to apply to the Lands Tribunal for an order for compulsory sale of the Old Building under the Land (Compulsory Sale for Redevelopment) Ordinance Cap.545 (“Ordinance”) and to redevelop the Land by demolition of the Old Building and erection of the New Building upon the terms and conditions therein. (b) Plaintiff’s legal representation 16.There was a long negotiation process of over 21 months to the execution of the Development Agreement. During that time, the Majority Owners[4] were legally represented by Messrs Gallant Y T Ho & Co in/about 1999. In/about 2000, they were replaced by Messrs Fairbairn Catley Low & Kong (“FCLK”), who continued their legal representation of the Majority Owners until they were replaced by Messrs Zebra HK Kwan & Partners (“ZHKK”) in October 2009.[5] JSM acted for HK Glory and HK Land. (c) Deal under the Development Agreement 17.Under the Development Agreement, which was signed, sealed and delivered by inter alia the plaintiff and Lee in the presence of a solicitor of FCLK, if the Lands Tribunal granted an order for sale in respect of the Land (“Sale Order”) and the Land were sold to HK Glory pursuant to such order, then each of the Majority Owners would be entitled to the following (collectively, “DA Deal”):
(d) Residue and cash compensation 18.In connection with paragraph 17(a) above, clause 8 of the Development Agreement applied if the Sale Order were obtained and the Old Building were sold to HK Glory pursuant to the Sale Order:
19.Residue In clause 8.04 of the Development Agreement, the “trustees under the Sale Order” in respect of the Redevelopment Project were yet to be appointed any the Sale Order pursuant to section 4(1)(c) of the Ordinance. Section 11(1) of the Ordinance provides that the proceeds of sale for the lot subject to a Sale Order shall after deduction of certain expenses and legal costs be paid to the trustees. 20.Clause 7.03 of the Development Agreement defines “Residue” as “[the] residue of the proceeds of sale to which each Majority Owner of an Existing Unit is otherwise entitled under section 11(2)(c)(i) of the Ordinance” (“Residue”). Under section 11(2) of the Ordinance, the Residue refers to the proceeds of sale of the lot the subject of a Sale Order paid to the trustees less (a) sum(s) in discharge of any liability due to the government in respect of the lot, and (b) sum(s) in discharge of any incumbrance affecting the lot. Section 11(2)(c) of the Ordinance provides inter alia that the trustees under the Sale Order shall apply the Residue paid to them to the majority and minority owners of the lot in accordance with directions. 21.For the Redevelopment Project, this means that the Residue received by the trustees under any Sale Order would be payable to each Majority Owner, who would therefore have the right to deal with and/or dispose of the Residue subject to the terms and conditions of the Development Agreement in respect of which he/she was contractually bound. 22.By clauses 8.02 and 8.04 of the Development Agreement, each Majority Owner agreed and directed that the Residue to which each of them was otherwise entitled would be paid to HK Glory, and each Majority Owner would irrevocably direct the trustees under any Sale Order to be made to pay the Residue to HK Glory. Each Majority Owner further agreed that the Residue would belong to HK Glory, and he/she would hold the same on trust for and to the order of HK Glory should the Residue come into his/her hands for any reason. In short, on becoming entitled to the Residue upon the sale of the Land to HK Glory pursuant to any Sale Order, the Majority Owners (including the plaintiff and Lee) agreed and directed that the same be paid over to HK Glory. 23.Cash compensation In the course of her complaints and previous legal actions,[9] the plaintiff protested against the low cash compensation of HK$400,000.00. But, as explained in paragraph 16 above, there had been a long negotiation process amongst the parties through their solicitors before they entered into the Development Agreement, and the Majority Owners (including the plaintiff and Lee) acted through their solicitors (more particularly FCLK) throughout the process. That being the case, the plaintiff cannot be heard now to say she is dissatisfied with the terms of the Development Agreement. 24.DHCJ Lok struck out the plaintiff’s previous claim against HK Glory in HCA366/2012 and dismissed the action.[10] In his Decision delivered on 20 February 2013, the learned judge echoed my views in the above paragraph as follows:
There is no appeal from such Decision, which is therefore binding on the plaintiff. In the circumstances, there is no merit to her suggestion that the Development Agreement should be retrospectively amended to increase the cash compensation due to alleged fraud and dishonesty on the part of HK Glory, HK Land and the Trustees. 25.In my view, the plaintiff and Lee were bound by their bargain under the Development Agreement as varied by the Supplemental Agreement, and there is no basis for the court to re-make such bargain. After all, the plaintiff and Lee had other entitlements under the DA Deal apart from the cash compensation, ie a New Unit (for which they were not required to pay any further price) and a Bonus being a profit share (see paragraph 17 above). 26.Expenses The plaintiff complained that the cash compensation was too low when compared with the New Unit’s high costs (eg stamp duty of about HK$600,000.00 and legal costs of about HK$90,000.00) which she and Lee would have to bear upon taking up an assignment of the New Unit. But clause 13.04 of the Development Agreement provides that stamp duty and registration fees on the agreement for sale and purchase (“ASP”) and on the assignment of a new unit of the New Building to each Majority Owner shall be borne by the Majority Owner. 27.Subject to clause 13.02 of the Development Agreement, HK Glory agreed to bear reasonable legal costs/disbursements of each Majority Owner for preparing and executing the ASP and the assignment of a new unit of the New Building to him upon the conditions provided therein. 28.In his affidavit dated 3 April 2012 filed in HCA366/2012, Mr Wong explained that the sum of HK$90,000.00 which the plaintiff referred to was the cost of a full set of certified hard copy title deeds of the New Unit. But JSM by letter dated 28 June 2010 (a) offered to each Majority Owner a DVD with the full set of title deeds of the Old Building stored in the disc plus certified copies of title documents since the new development free of charge, and (b) confirmed that advice had been obtained from senior counsel who opined that such certified copy title deeds provided in the DVD would be as good as the hard copies for proving title. The plaintiff did not have to incur the costs to obtain certified hard copy title deeds. (e) New Unit 29.In connection with paragraph 17(b) above, clause 10 of the Development Agreement provides as follows:
(f) Profit share or Bonus 30.In connection with paragraph 17(c) above, clause 10.12 of the Development Agreement defines “Redevelopment Costs” and “Profits”, and the latter is defined as follows:
Clause 10.13 of the Development Agreement goes on to provide for distribution of a share of the Profits as follows:
(g) Guarantor 31.In relation to HK Land, clause 12.01 of the Development Agreement provides as follows:
(h) Supplemental Agreement 32.The Development Agreement was supplemented by a Supplemental Agreement dated 31 October 2002 made by the same parties (“Supplemental Agreement”). The Supplemental Agreement was also signed, sealed and delivered by the plaintiff and Lee in the presence of a solicitor of FCLK. (i) Sale Order 33.On 6 October 2003, application was made to the Lands Tribunal under LDCS1000/2003 for the sale of the Land together with the Old Building. The plaintiff and Lee, who were represented by FCLK, were named the 129th applicant in the proceedings. HK Glory as purchaser of the Land together with the Old Building was later joined as the 19th respondent. 34.On 25 November 2004, HH Judge KY Chan (as he then was) granted an order for the sale of the Land together with the Old Building by auction with a reserve price set at HK$1,209,000,000.00 for the purpose of redevelopment. Ma Ho Fai and Tsang May Ping (“Trustees”) were appointed under section 4(1)(c)(i) of the Ordinance as Trustees. The learned judge also specified inter alia that the time for completion of the Redevelopment Project to be 5 years after the date on which the purchaser of the Land became owner of the Land pursuant to paragraph 1(a) of the Third Schedule of the Ordinance. (j) Auction sale, Residue and cash compensation 35.Public auction for the sale of the Land together with the Old Building was held on 21 January 2005. HK Glory was the successful bidder at the price of HK$1,710,000,000.00. On the same day, a Memorandum of Agreement for the sale and purchase of the Land was made between the owners of the existing units of the Old Building (acting by the Trustees) as vendor and HK Glory as purchaser (“Memorandum of Agreement”). According to the recital of the Memorandum of Agreement, HK Glory had paid the sum of HK$20,000,000.00 by way of deposit to the Trustees. 36.On 21 February 2005, the solicitors for the Trustees wrote to the plaintiff and Lee to advise that the Old Unit was sold by auction on 21 January 2005, and the sale was due to be completed on 22 February 2005. A Statement of Apportioned Net Sale Proceeds annexed thereto showed (a) the total net sale proceeds of the Old Building (HK$1,709,404,442.68) after deduction of legal costs on the assignment (HK$200,000.00) and Trustees’ remuneration (HK$200,000.00), and (b) the apportioned net sale proceeds of the Old Unit payable to the plaintiff and Lee (HK$1,709,404,442.68 x 0.59995% = HK$10,255,571.95). The solicitors for the Trustees advised that such net sale proceeds would be distributed according to section 11 of the Ordinance. 37.By a Deed of Assignment dated 22 February 2005 (“Deed of Assignment”) made between the owners of the existing units of the Old Building acting by the Trustees as vendor and HK Glory as purchaser, HK Glory became the registered owner of the Land upon payment of the purchase price. In fact, under and by virtue of section 7(1)(i) of the Ordinance, there was vested in the Trustees the power to assign all the estate, right and interest in the Land held by the Majority Owners and the minority owners of the Old Building (“Minority Owners”) for the purpose of selling the Land to HK Glory as purchaser and for the purpose of executing any required documents. In the circumstances, the Trustees were authorised to sign the Memorandum of Agreement and the Deed of Assignment on behalf of the Majority and Minority Owners. 38.Under and by virtue of section 8 of the Ordinance, where a lot is sold pursuant to a Sale Order made under the Ordinance, then immediately upon the purchaser becoming the owner of the lot, all the rights of any prior owner on or over the lot or any part thereof shall absolutely cease. In the circumstances, the plaintiff and Lee no longer had any rights and/or interests in the Old Unit. 39.The counterparts of the Development Agreement, the Supplemental Agreement and the Deed of Assignment were registered at the Land Registry. The Deed of Assignment was registered at the Land Registry by memorial on 19 March 2005. 40.On 9 May 2005, HK Glory paid 20% of the cash compensation in the sum of HK$80,000.00 to the plaintiff and Lee. By a Confirmation by Owner dated 9 May 2005 duly signed by the plaintiff and Lee in the presence of a solicitor of FCLK (“Confirmation by Owner”):
41.Although the plaintiff and Lee were entitled to the Residue (ie the net auction proceeds of the Old Unit) in the sum of HK$10,254,171.95, the Trustees did not actually give such sum over to the plaintiff and Lee because the plaintiff and Lee by clauses 8.02 and 8.04 of the Development Agreement irrevocably agreed and directed the Trustees to pay it over to HK Glory as developer. It is not the court’s function to consider the commerciality of the DA Deal, but it must be borne in mind that HK Glory as developer was responsible for defraying the redevelopment costs and for providing the plaintiff and Lee with a new unit (without any further payment), a cash compensation and a Bonus (ie a profit share). Indeed, in his Decision dated 24 September 2012 in HCA1567/2011 in which the plaintiff in the Subject Actions sued the Trustees,[11] DHCJ Lok said as follows at paragraph 12:
There is no appeal from such Decision, which is therefore binding on the plaintiff. 42.Since the Residue in respect of the Old Unit had been released to HK Glory via the Trustees, there is no merit to the plaintiff’s suggestion that she and Lee were entitled to determine the sale and purchase of the Old Unit under auction pursuant to clause 23(a) of the Conditions of Sale, to re-enter upon and re-possess the Old Unit, and to determine and vacate the registration of the Memorandum of Agreement and the Deed of Assignment at the Land Registry. Further, the sale and purchase had been completed and the Old Building had been demolished, so it would be impossible for the plaintiff to exercise any right of re-entry or re-possession in respect of the Old Unit. In any event, any interests of the plaintiff and Lee in the Old Unit had ceased by virtue of section 8 of the Ordinance.[12] 43.The provisions in the Development Agreement and the above analysis clearly demonstrate there is no merit to the plaintiff’s suggestion that since the Residue had not been paid the Deed of Assignment was therefore tainted by fraud, illegality, misrepresentation, theft, oppression, dishonesty and/or other impropriety. On the contrary, the Residue had been paid by the plaintiff and Lee to the order of HK Glory. In my view, the plaintiff’s suggestion of illegal, misappropriated, fraudulent and stolen “payback” of the Residue to HK Glory is totally unfounded. 44.HK Glory and HK Land claimed the plaintiff did not raise any complaint over the release of the Residue to HK Glory until she commenced various legal proceedings in 2011, which was more than 6 years after such release. But the plaintiff argued that her claims in relation thereto were not time-barred because she had access to “new evidence” (eg the letter from the solicitors for the Trustees dated 21 February 2005) [13] only in 2011 or 2012. But in my view, quite irrespective of such letter, the plaintiff’s alleged cause of action based on HK Glory’s purported non-payment of the Residue must have been obvious from the time the Trustees failed to pay over any auction proceeds to her after the public auction of the Land. The so-called “new evidence” does not aid any suggestion that the time-bar had been postponed. Indeed, DHCJ Lok in paragraph 34 of his Decision dated 20 February 2013 in HCA366/2013 held as follows:
There has been no appeal against such Decision, which is therefore binding on the plaintiff. 45.This leads to the plaintiff’s argument that the Confirmation by Owner is a false document made for the allegedly fraudulent, illegal and/or improper purpose of transferring the Old Unit to HK Glory without paying any consideration to the plaintiff and Lee. But, as explained, HK Glory must be regarded as having already paid the Residue to the plaintiff and Lee,[14] and in my view the Confirmation by Owner was not a false, fraudulent or forged document at all:
(k) Surrender of vacant possession 46.The plaintiff and Lee surrendered vacant possession of the Old Unit to HK Glory by surrendering the keys to the management office on 15 December 2005.[18] Vacant possession of the last unit of the Old Building was surrendered to HK Glory on 4 January 2006.[19] (l) Balance of cash compensation 47.On 11 January 2006, the plaintiff and Lee received the balance of the cash compensation in the sum of HK$320,000.00, and reimbursement of management fee in the sum ofHK$46,243.00.[20] (m) Redevelopment 48.HK Glory, as owner of the Land, entered into various Modification Letters with the government to inter alia permit certain “green features”, such as balconies, to be incorporated.[21] On 5 May 2009, the Lands Tribunal in LDCS1000/2003 ordered that the last day for completion of the Redevelopment Project under the Sale Order be extended for 12 months from 22 February 2010 to 22 February 2011.[22] 49.There are provisions in the Development Agreement for communications between the Majority Owners and HK Glory. Clauses 4.05-4.06 of the Development Agreement provide that an Owners’ Committee[23] would be established and maintained for the purpose of representing the Majority Owners in communicating and liaising with HK Glory during the currency of the Development Agreement. By signing the Development Agreement, each of the Majority Owners confirmed and agreed that the Owners’ Committee had full authority to represent the Majority Owners in communicating and liaising with HK Glory. 50.Subject to a few restrictions in clause 10.15 of the Development Agreement, HK Glory had full right in respect of the design of the new units of the New Building. But according to Mr Wong, the Majority Owners were given opportunities to and did participate in the decision making process of the new units. There were consultation meetings (which all Majority Owners were invited to attend) between the Owners’ Committee of the Association of the Majority Owners of the Old Building and HK Glory about the design of the new units. 51.In respect of meetings of the Owners’ Committee, clause 4.06 of the Development Agreement provides that each Majority Owner confirmed and agreed that the Owners’ Committee shall have the authority to represent them in communicating and liaising with HK Glory, and any resolution signed by not less than half of the committee members or passed by not less than half of the committee members present and voting at a meeting of the Owners’ Committee shall be binding on all Majority Owners. Hence, the resolutions recorded in the minutes of meetings of the Owners’ Committee on 26 August 2006 and 5 May 2007 were binding on the plaintiff and Lee as Majority Owner. 52.Mr Wong stated that construction progress of the New Building was reported by HK Glory at general meetings of the Majority Owners, and floor plans showing the layout and design of the new units were provided at such general meetings for comments/decision through voting on the options available. The minutes produced by HK Glory suggested that the plaintiff attended 3 annual/extraordinary general meetings of the Majority Owners on 26 August 2006, 5 May 2007 and 3 November 2007. [24] There was no record in such minutes of any complaint made by the plaintiff as to inadequacy of information. But the plaintiff denied she attended any such annual/ extraordinary general meetings. In my view, such dispute is neither here nor there since it is common ground the plaintiff had no right under the Development Agreement to dictate the design of the New Unit. Notwithstanding HK Glory’s consultation with the Majority Owners,[25] the right over the design of the New Units/Building rested with HK Glory. 53.Further, under the terms of the Development Agreement, no sales or other brochure was required to be provided to the Majority Owners. The sales brochure prepared by HK Glory in accordance with the guidelines issued by the Real Estate Developers Association of Hong Kong (“REDA”) was to provide information to the purchasers of the new units of the New Building and not to the Majority Owners to whom the new units were to be handed over in accordance with the terms of the Development Agreement. Any information in the sales brochure relating to the new units to be handed over to the Majority Owners was provided as additional material so that the purchasers of the new units might have a better picture. (n) Taking up the New Unit 54.During the construction of the New Building, HK Glory applied to the Lands Department in mid-July 2009 for a special pre-sale consent to enter into ASPs of the New Units with the Majority Owners in accordance with clause 10.21 of the Development Agreement. The draft ASP was sent to the Owners’ Committee in late July 2009. 55.In/about November 2009, ZHKK was appointed by the Owners’ Committee to replace FCLK as solicitors for the Majority Owners. ZHKK continued to act on behalf of the Majority Owners in settling the form of the ASP.[26] But since/about November 2009, the plaintiff made numerous verbal and written complaints against HK Glory for serious irregularities, sought compensation for loss arising therefrom,[27] and requested extensive information about the New Unit. Mr Wong liaised with the plaintiff directly and there was copious exchange of emails between them. JSM also received numerous emails from the plaintiff requesting information about the New Unit, and they were instructed to reply from time to time. 56.The plaintiff complained of late completion of the New Building. But according to HK Glory and HK Land, the New Building was completed within time in compliance with the Development Agreement. Clause 10.01 of the Development Agreement provides that HK Glory shall within a period of 54 months from the date when vacant possession of the whole of the Old Building had been obtained by it complete the construction of the New Building on the Land, and the New Building shall be deemed to have been completed when the Occupation Permit had been issued. Vacant possession of all units of the Old Building was obtained on 4 January 2006,[28] so the construction period would expire on 4 July 2010. On 24 November 2009, the Building Authority issued the Occupation Permit for the New Building, and the New Building was deemed to have been completed on that date. (o) Carparking space of the New Unit 57.Pursuant to clause 10.15(1) of the Development Agreement, the new unit to be allocated to each Majority Owner comprises a flat and a car parking space at the New Building. At an extraordinary general meeting of the Association of the Majority Owners held on 8 February 2010, the drawing of lots by HK Glory for the allocation of carparking spaces was carried out.[29] (p) Construction costs and gross floor area 58.On 19 May 2010, Wong Tung & Partners Limited as architect certified in writing the total gross floor area of the New Building was 28,613.480 sq m, and the construction costs expended by HK Glory on the demolition of the Old Building, the construction, completion and fitting out of the New Building, and the redevelopment of the Land in compliance with all applicable laws and the government lease were equivalent to HK$2,115.47 per sq ft. 59.The plaintiff suggested that the above architect certificate showed a high total gross floor area of “28,613,430 sq m”, so she should be entitled to higher cash compensation of HK$3,500,000.00 instead of HK$400,000.00 under the Second Schedule to the Development Agreement.[30] But I agree with Mr Wong that the plaintiff mistook the decimal place to be a comma, and the total gross floor area certified by the above architect certificate was “28,613.480 sq m” (ie equivalent to 308,000 sq ft) and not “28,623,480 sq m”, so under the Second Schedule to the Development Agreement she was only entitled to a cash compensation of HK$400,000.00, which she had already received. The architect certificate also proved that HK Glory had complied with clause 10.15 of the Development Agreement[31] as to the construction cost which exceeded HK$1,600.00 per sq ft. 60.On 25 May 2010, HK Glory by JSM issued a letter to the plaintiff and Lee regarding the procedures and relevant matters for completion of the assignment of the New Unit after the issuance of the Certificate of Compliance pursuant to the terms of the Development Agreement. On 17 June 2010, the Certificate of Compliance of the New Building was issued by the Lands Department.[32] On 28 June 2010, Wong Tung & Partners Limited issued to JSM an architect certificate confirming the saleable area of each new unit of the New Building was 789 sq ft and the saleable area of the utility platform was 16 sq ft, so the gross floor area of each new unit was 1,032 sq ft. 61.On 28 June 2010, HK Glory by JSM issued a Notice of Completion to the plaintiff and Lee to take up the assignment of the New Unit on/before 15 July 2010 in accordance with clause 10.10 of the Development Agreement. 62.In July 2010, HK Glory and JSM received a number of emails from the plaintiff in which she claimed she would not take up the assignment of the New Unit, and requested HK Glory to sell the New Unit. In her email of 16 July 2010, the plaintiff alleged that some important information about the Redevelopment Project had not been made available to the owners of the Old Unit before the completion deadline of 15 July 2010. In her email of 24 July 2010, the plaintiff alleged the New Unit was unsuitable and unsatisfactory for her and her family members. HK Glory/JSM gave replies in/about July 2010 to explain the position of HK Glory and to request her to take up the assignment and possession of the New Unit immediately. Despite repeated demands by JSM, the plaintiff and Lee failed to take up the assignment of the New Unit. 63.Although the plaintiff complained that the New Unit still had serious unresolved problems, she failed to point to any specific problems with the New Unit that justified her refusing to take up the assignment of the New Unit. In HCA1582/2011 in which she sued HK Land and their 2 directors, the plaintiff raised complaints about certain design of the New Unit which she personally did not like. But by reason of the analysis in paragraphs 50-53 above, the plaintiff cannot make such complaints now. 64.Notices of Completion were issued to other Majority Owners. Except for a few who requested for extension of time, many Majority Owners took up assignments of the New Units on/before 15 July 2010.[33] Mr Wong confirmed that none of the other Majority Owners had made any complaint regarding the provision of information about the new units, and this was so found by DHCJ Lok in paragraphs 14 – 15 of his Decision dated 24 September 2012 in HCA1567/2011.[34] 65.But the plaintiff claimed Mr Wong lied in saying there were no complaints or court actions by other owners. She referred to the case of Yip Kwai Huen Herman (“ Mr Yip”). Mr Yip and Mo Yuet Mui Karanda (“Ms Mo”) were the Majority Owners of an existing unit of the Old Building and the 103rd applicant in LDSC1000/2003. At first Mr Yip refused to sign the Confirmation by Owner to confirm the release of the Residue (ie the net sum of HK$8,529,574.88 in the Statement of Apportioned Net Sale Proceeds) to HK Glory pursuant to clauses 8.02 and 8.04 of the Development Agreement because of family issues in ongoing matrimonial proceedings between Mr Yip and Ms Mo. On 2 March 2007, JSM on behalf of HK Glory wrote to the Trustees’ solicitors to urge for release of the Residue attributable to Mr Yip and Ms Mo to HK Glory. On 5 March 2007, the Trustees’ solicitors replied that the Confirmation by Owner from Mr Yip was still pending. On 8 June 2007, HK Glory through JSM took out a summons in LDSC1000/2003 to seek directions regarding the release of the Residue with all interest accrued thereon to HK Glory by the Trustees. Such summons was supported by the affidavits of Tsang May Ping (a Trustee) dated 4 June 2007 and Mr Wong dated 14 June 2007. 66.Mr Wong in his 2nd affidavit filed on 13 June 2013 in HCA437/2013 explained that Mr Yip finally agreed to sign the Confirmation by Owner 2 days before the hearing of the summons in LDCS1000/2003 on 29 June 2007, so directions as to the disposal of the Residue were no longer required and the remaining issue was costs. In light of the above developments, it is no wonder that Mr Yip was ordered to pay costs to the Trustees on an indemnity basis and on High Court scale whilst Ms Mo and HK Glory each bore their own costs. In my view, these costs orders support Mr Wong’s explanations, and do not in any way show, as the plaintiff suggested, that HK Glory “had lost the case”. Mr Wong also exhibited a copy of the Confirmation by Owner dated 27 June 2007 signed by both Mr Yip and Ms Mo in the presence of a solicitor of FCLK. 67.In the course of her submissions, the plaintiff insisted that since Mr Yip’s case was not struck out, the court should not strike out her claims in the Subject Actions. I am unable to see any viable analogy between Mr Yip’s situation and hers. Mr Yip was at first unwilling to sign the Confirmation by Owner, but the plaintiff and Lee signed the same. Mr Yip had no further complaints after he eventually signed, but the plaintiff still had many complaints. These considerations show that no useful comparison to Mr Yip’s situation can be made. 68.As at 13 September 2010, 168 out of 173 Majority Owners had taken up possession of the new units of the New Building. Completion of 2 more new units was scheduled to take place by the end of September 2010.[35] 69.In September 2010, the police received a complaint about the Old/New Units and the Redevelopment Project, and HK Glory rendered assistance to the police by providing information through JSM. 70.On 18 October 2010, HK Glory by JSM issued a default notice to the plaintiff and Lee that unless they took up an assignment of the New Unit on or before 25 October 2010, the New Unit would be left vacant at their risk, and all outstanding management fees, government rent and other outgoings as well as costs and damages incurred and/or suffered by HK Glory would be deducted from the Bonus (ie the profit share), which shall not be payable to them unless and until the New Unit had been assigned to them and the outstanding amounts (with interests where applicable) had been settled. 71.In March 2011, the Bonus (ie the profit share) under the Development Agreement was available for payment to each of the Majority Owners. The Bonus payable to the plaintiff and Lee in the sum of HK$1,200,000.00 was the highest amount under the Development Agreement that was available for distribution. On 3 March 2011, HK Glory by JSM wrote to the plaintiff and Lee to advise them of the availability of the Bonus in respect of the Old Unit, but reiterated the matters set out in the above paragraph. 72.The plaintiff complained that HK Glory earned high profits but she was only entitled to a low profit share of HK$1,200,000.00, which was oppressive, fraudulent and unfair. But as explained above, the DA Deal was an arms-length bargain made between the Majority Owners (including the plaintiff and Lee) under legal advice and HK Glory/HK Land, and there is no basis for the plaintiff to re-make the bargain just because she was subsequently dissatisfied with the terms. 73.The plaintiff also complained that she was not provided with the “certificate of auditors” under clause 10.13 of the Development Agreement to show the percentage of profit. But since HK Glory agreed to pay to each Majority Owner the maximum amount of the Bonus (ie profit share) in the sum of HK$1,200,000.00 under clause 10.13 of the Development Agreement, there was no need for HK Glory to provide the plaintiff with any “certificate of auditors”, and such non-provision did not cause any loss or give rise to any cause of action. Whether or not HK Glory made a greater profit than what the plaintiff anticipated was not her concern, and she cannot now insist on a profit share greater than as agreed. 74.The plaintiff also protested that HK Glory had not paid any profit share to her at all. But there is no merit to this argument since HK Glory had advised that the Bonus (ie her profit share) was available for payment over to her and Lee after set-off against any sum payable to HK Glory upon their taking up the assignment of the New Unit. Ms Leung informed the court that the plaintiff had not paid any costs under the costs order in favour of to HK Glory and HK Land in HCA1582/2011 and HCA366/2012 (and the plaintiff herself admitted that assessed/taxed costs in HCA1582/2011 amounted to more than HK$300,000.00). 75.The plaintiff also claimed that HK Glory had failed to provide the market value of the New Unit to her. She produced a 2-page extract from a 3-page document entitled “Register of [ASPs] for Residential Units” of the New Building that gave particulars of the ASPs in respect of the new units of the New Building with transacted prices ranging from over HK$21,000,000.00 to over HK$172,000,000.00 for each new unit in 2010 to 2012. 76.But under clause 10.10 of the Development Agreement, the plaintiff and Lee as Majority Owners were contractually obliged to take up the assignment of the New Unit without further payment and without any alternative provision for them to receive a sum equivalent to the market value of the New Unit in lieu of taking up the assignment of the New Unit. As pointed out by Mr Wong in his affidavit dated 28 May 2012 filed in HCA366/2012, the plaintiff and Lee were at liberty to take up the assignment of the New Unit and immediately sell it in the market. This was reiterated by DHCJ Lok in paragraph 32 of his Decision dated 20 February 2013 in HCA 366/2013.[36] Indeed, the learned judge had considered the “Register of [ASPs] for Residential Units”, yet he still struck out the plaintiff’s claim and dismissed HCA366/2012. I find the prices paid by the purchasers of other new units of the New Building irrelevant to the plaintiff or to the Development Agreement. 77.The plaintiff argued that she suffered loss of further profits due to HK Glory’s negligence in not including commercial/shopping floors in the New Building. The simple and complete answer is that the plaintiff was not entitled to any Bonus or profit share in excess of the maximum sum of HK$1,200,000.00 under the terms of the Development Agreement. 78.The plaintiff complained that she was not provided with any valuation report since 2001. Clause 6.03 of the Development Agreement as varied by the Supplemental Agreement provides as follows:
Section 3(1) of the Ordinance provides that the application to the Lands Tribunal for a Sale Order must be accompanied by a valuation report as specified in Part 1 of Schedule 1. But there was no contractual or statutory requirement for HK Glory or HK Land to produce a valuation report to the plaintiff. 79.The plaintiff alleged that HK Glory and HK Land committed fraud, misrepresentation, theft, dishonesty, and other crimes/improprieties in respect of various payments under the Redevelopment Project and auction sale of the Old Building, which she alleged that for her and Lee were only cash compensation of HK$400,000.00, nil auction proceeds, low (and unpaid) profit share of HK$1,200,000.00, but other Majority Owners “maybe” had more cash compensation, higher payments and/or payments outside the Development Agreement. On such basis, the plaintiff claimed entitlement to a host of documents and information to allay her suspicions. 80.In my view, the plaintiff’s belief that some other Majority Owners might have received more from HK Glory was wholly speculative since the rights of the plaintiff and Lee and other Majority Owners were set out in the Development Agreement as varied by the Supplemental Agreement. In any event, HK Glory’s obligations to each Majority Owner (including the plaintiff and Lee) under the Development Agreement were several and independent of each other, which means the plaintiff had no legal basis to complain even if other Majority Owners were paid more or less. In the circumstances, she was not entitled to request for more information/documents on payments made to other Majority Owners, which in my view is no more than a fishing exercise to hunt around for an excuse not to comply with her obligation to take up the assignment of the New Unit. Indeed, DHCJ Lok in his Decision dated 24 September 2012 in HCA1567/2011 held as follows:
In paragraph 35 of his Decision dated 20 February 2013 in HCA366/2012, the learned judge also held as follows:
As explained above, there were no appeals from these Decisions, which therefore remained binding against the plaintiff. 81.In December 2012, the plaintiff sent 3 letters on behalf of herself and purportedly as Lee’s authorised representative to HK Glory, HK Land and JSM respectively dated:
82.On 10 December 2012, JSM replied (a) to say they were unable to ascertain any factual or legal basis for the purported cancellations and declarations of avoidance and (b) to question the plaintiff’s authority to represent Lee. At that time, a hearing was scheduled on 19 December 2012 in HCA366/2012 to hear various summonses taken out by the parties and 3 appeals by the plaintiff.[37] After such hearing, DHCJ Lok delivered his Decision on 20 February 2013 to dismiss all summonses/appeals by the plaintiff and to strike out her claim. But the plaintiff again for herself and purportedly as Lee’s authorised representative sent a letter dated 17 March 2013 to HK Glory marked “Notice of termination of authority of trustees with effect from 22-2-2005 retrospectively” and “Notice of re-entry and re-possession”, and a letter dated 21 March 2013 to HK Glory (copied to HK Land) marked “Notice of re-entry and re-possession, and Default Notice”. 83.I agree with JSM’s reply on 25 March 2013 that there was no legal or factual basis for the plaintiff’s purported acts of re-entry and re-possession of the Old Unit (which had been demolished) or cancellation of any document mentioned in her notices. The plaintiff could not unilaterally cancel the aforesaid documents when the tripartite Development Agreement which she made under legal advice remained effective and binding on her. 84.In light of the above, there is no viable basis for the plaintiff to assert any serious payment problem tainted by fraud, oppression, error, misrepresentation and/or other impropriety on the part of HK Glory, HK Land, FCLK and/or other related parties, and to argue that some documents (eg Deed of Assignment, Confirmation by Owner, etc) were obtained by fraud. V. RELATED LEGAL ACTIONS BY THE PLAINTIFF 85.Ever since June 2011 and before the commencement of HCA347/2013, the plaintiff issued various applications/proceedings on the same, similar and/or related subject matter seeking the same or similar reliefs against the same/other parties, but they were all struck out and/or dismissed by the court. The plaintiff complained that such court orders were the result of misleading, fraudulent, false and untrue allegations by the defendants and therefore erroneous. But for reasons explained below, I cannot agree with such suggestion. (a) LDCS1000/2003 86.In LDCS1000/2003, the plaintiff issued a summons on 13 June 2013 against HK Glory for reliefs similar to those sought in the Subject Actions. A summary of the plaintiff’s application by such summons can be found in Part A of Schedule I to this Decision (“Schedule I”). 87.In her supporting affidavits dated 15 June and 26 July 2011, the plaintiff claimed that some of the terms/matters in respect of the Redevelopment Project and/or the auction sale of the Old Building were unfair, and requested “change and/or compensation” (ie payment of higher cash compensation, the Residue, higher profit share, other compensation and/or market value of the New Unit with interest) from HK Glory and HK Land (and failing which from JSM), but she did not elaborate on her so-called valid reasons for refusing to take up the assignment of the New Unit. On 9 August 2011, DDCJ J Wong dismissed the plaintiff’s summons with costs to HK Glory summarily assessed at HK$16,100.00 to be paid on or before 22 August 2011. 88.I agree with Mr Wong’s claim in his affidavit dated 3 April 2012 filed in HCA366/2012 that the plaintiff’s application in LDCS1000/2003 was in effect an attempt (on unfounded grounds) to re-negotiate the terms of the Development Agreement to which she was bound. I also agree that the plaintiff would have considerable difficulty to set aside the Development Agreement as she was legally represented at the material time. In my view, there was no legal/factual basis to justify her request for information and documents, and her claim for psychological, mental and physical injury. (b) HCA1567/2011 89.On 14 September 2011, the plaintiff in the Subject Actions commenced HCA1567/2011 against the Trustees in respect of the auction sale of the Old Building. A summary of the plaintiff’s claim can be found in Part B of Schedule I. But in my view, there is no merit to the plaintiff’s complaint of “lost” auction sale proceeds (ie the Residue), and her request for information and documents. [38] 90.On 26 March 2012, Master de Souza struck out the plaintiff’s claim “purely for lack of reasonable cause of action on the contemporaneous documentation” and dismissed the action with costs against her. The learned master did not consider that HCA1567/2011 fell “within the scandalous, vexatious or abuse of process scenario”. In his written Decision dated 24 September 2012, DHCJ Lok dismissed the plaintiff’s appeal against the learned master’s decision with costs:
(c) HCA1568/2011 91.On 14 September 2011, the plaintiff in the Subject Actions commenced HCA1568/2011 against FCLK and Mr Billy Kong (FCLK’s partner in charge of matters about the Redevelopment Project) again in respect of the same subject matter. A summary of the plaintiff’s claim can be found in Part C of Schedule I and in the summary of the plaintiff’s case in paragraphs 16-19 of the Decision of DHCJ L Chan (as he then was) of 20 January 2012. 92.On 19 March 2012, by the Order of Master Ho, the plaintiff’s claim was struck out and the action was dismissed with costs. On 17 July 2012, Poon J dismissed the plaintiff’s appeal against the order of the learned master. In paragraph 3 of his Reasons for Decision handed down on 26 July 2012, Poon J found as follows:
93.Charging orders were granted in respect of the plaintiff’s property in relation to costs orders granted against her. The plaintiff lodged 3 further appeals, but on 5 November 2012 L Chan J dismissed all such appeals with costs. (d) HCA1582/2011 94.On 16 September 2011, the plaintiff by HCA1582/2011 commenced proceedings against HK Land being the guarantor under the Development Agreement and Mr John R Witt and Mr AJL Nightingale as directors of the guarantor in respect of the same subject matter and for similar reliefs. A summary of the plaintiff’s claim can be found in Part D of Schedule I. 95.On 9 February 2012, Master K Lo struck out the plaintiff’s claim and dismissed the action with costs (assessed at HK$129,165.70). On 13 February 2012, the plaintiff appealed against such decision. On 29 March 2012, DHCJ Au-Yeung (as she then was) dismissed the appeal (when the plaintiff declined to pursue the appeal on 11 April 2012 or on other dates of hearing offered by the court) with costs assessed at HK$5,000.00 payable by the plaintiff within 14 days from the date of the order. (e) HCA366/2012 96.On 7 March 2012, the plaintiff commenced HCA366/2012 against HK Glory on the same subject matter claiming similar reliefs as in HCA347/2013. The plaintiff issued various summonses between 29 March and 20 July 2012, filed revised Statement of Claim dated 15 May 2012, and filed “Further Particulars for Statement of Claim (Revised) and Further Reasons for the Claims” on 20 July 2012. A summary of the plaintiff’s claim can be found in Part E of Schedule I. 97.On 23 July 2012, Master Hui struck out the plaintiff’s claim and the action was dismissed with costs. On 27 July 2012, the plaintiff appealed against the learned master’s order, and subsequently filed various summonses and affidavits as well as further Notice of Appeal. By his decision dated 20 February 2013, DHCJ Lok gave a summarised account of the Redevelopment Project, and dismissed the appeal and the other summonses taken out by the plaintiff with costs. (f) HCA1324/2012 98.On 27 July 2012, the plaintiff in the Subject Actions commenced HCA1324/2012 against HK Glory claiming for compensation, loss and damages for alleged defamation against her. By his decision dated 20 February 2013, DHCJ Lok struck out the plaintiff’s claim and dismissed the action:
(g) Subject Actions 99.On 22 February 2013, the plaintiff commenced HCA347/2013 against HK Glory. On 8 March 2013, the plaintiff also issued the Writ of Summons against HK Land in HCA432/2013. D’s 347 and 432 Summonses seeking similar reliefs were heard before me on 1 August 2013. A summary of the plaintiff’s claim in the Statement of Claim in HCA347/2013 dated 3 March 2013 supplemented by the 347/13 Particulars can be found in Part F of Schedule I. A summary of the plaintiff’s claim in the Statement of Claim in HCA432/2013 dated 26 June 2013 can be found in Part G of Schedule I. 100.A review of the claims set out in Schedule I shows there is significant overlap in the nature of the claims/reliefs sought in the actions referred to above. Moreover, the underlying subject matter of such claims is the same: they all relate to the plaintiff’s dissatisfaction and complaints in respect of the Old and New Units/Buildings and the Redevelopment Project. In particular, the claims made by the plaintiff in the Subject Actions are the same and/or closely similar to the claims in her previous actions against HK Glory and HK Land. VI. D’S 347 AND 432 SUMMONSES: STRIKING OUT APPLICATIONS 101.It is only in plain and obvious cases that the court should exercise its summary powers to strike out any pleading (including a Statement of Claim). Order 18 rule 19(2) of the RHC provides that no evidence shall be admissible on an application for striking out pleading on the ground that it discloses no reasonable cause of action. But as explained in paragraph 34 of my Decision handed down on15 July 2013 in HCA347/2013, affidavit evidence is ordinarily permissible to support the other grounds in Order 18 rule 19(1) of the RHC for striking out pleadings. 102.As the plaintiff pointed out, Order 18 rule 19 of the RHC empowers the court to amend any pleading. But unless there is reason to believe that the case can be improved by amendment leave will not be given. Further, when a party seeking to amend his pleadings in order to save it from being struck out, the proposed amendment should be properly and exactly formulated, and normally should include all necessary averments or mandatory particulars, and a full and complete plea of a reasonable cause of action.[39] 103.HK Glory and HK Land contend that the plaintiff’s pleaded claims in the Subject Actions should be struck out for disclosing no reasonable cause of action, being frivolous and vexatious and/or being an abuse of court process, and the Subject Actions should be dismissed. 104.I agree with Ms Leung that even without considering any affidavit evidence, the plaintiff’s assertions as set out in the Statement of Claim and the 347/13 Particulars in HCA347/2013 and in the Statement of Claim in HCA432/2013 disclose no reasonable cause of action. In gist, the plaintiff and Lee as Majority Owners had separate legal representation and the DA Deal under the Development Agreement was negotiated at arms length. They agreed to surrender possession of the Old Unit to HK Glory and also to direct the Trustees to release the Residue to HK Glory for the redevelopment of the Old Building and the Land and in exchange they would get a cash compensation of HK$400,000.00, a New Unit and a Bonus. HK Glory paid the cash compensation of HK$400,000.00 and offered a New Unit. The maximum amount Bonus was also ready and payable upon the plaintiff and Lee taking up the assignment of the New Unit and settling outstanding costs and accrued outgoings. In my view, there is no legal or factual basis to suggest that HK Glory and/or HK Land had not performed their part of the bargain or had concealed anything from the plaintiff. 105.The fact that the plaintiff’s previous claims/actions based on the same subject matter and for the same or similar reliefs had all been all struck out and/or had been dismissed is testament to the lack of merits in respect of her underlying case in the Subject Actions. I do not agree with the plaintiff’s argument that the causes of action in the Subject Actions were different because she now alleged fraud, dishonesty, misrepresentations, theft, oppression and other crimes/improprieties on the part of HK Glory and HK Land. These serious allegations are nothing more than bare assertions, which do not make out any reasonable cause of action. In my view, there is no factual or legal basis to support any reasonable cause of action for the reliefs sought by the plaintiff, including her claims for missed investment gains, consequential psychological injury, and damages for unsatisfactory/low quality of life. 106.More significantly, the plaintiff being a party to each of the previous actions referred to in Part V above is bound by the final decisions of the court in striking out those claims against HK Glory and HK Land and in dismissing those actions. The res judicata principle in the narrow sense prevents re-litigating in subsequent proceedings between the same parties issues adjudicated by a court of competent jurisdiction in previous proceedings. There is a public interest in finality in litigation and in a party not being vexed twice (or more) in the same manner. 107.In my view, the plaintiff’s claims in the Subject Actions, which are totally unmeritorious, are also frivolous and vexatious and are otherwise an abuse of court process as clearly demonstrated by (a) the repeated unwarranted requests/complaints, court applications and legal proceedings taken out by the plaintiff against HK Glory and HK Land (and indeed against others as well), which were wholly unfounded and had all been struck out by different judges/masters, and (b) the fact that all the applications and legal proceedings taken out by the plaintiff previously (as referred to in Part V above) and in the Subject Actions concern the same and closely similar matters. It is clear that the plaintiff is seeking to re-litigate the same matters even though the earlier applications and actions had been struck out. I reject the plaintiff’s suggestion that there was no re-litigation because she did not obtain the reliefs sought in her previous actions which were dismissed. After all, the courts had found her pervious claims to be of no merit at all. I also cannot accept the plaintiff’s argument that her previous claims were struck out and dismissed as a result of untrue, fraudulent and dishonest statements in affidavits filed by the defendants. As she did not appeal or successfully appeal against those decisions, which were therefore binding on her, she cannot now seek to challenge those decisions on such grounds. 108.At the hearing before me, the plaintiff made it quite clear she would relentlessly pursue her complaints, applications and claims against HK Glory and HK Land. It is obvious from her persistence in lodging unmeritorious claims and applications that she had abused, and is likely to continue to abuse the court’s process by seeking to persistently re-litigate in fresh proceedings, without viable grounds, matters which had already been determined by the court. Whatever might be her motive in doing so, she was in effect asking the court to remake the DA Deal and/or her bargain with HK Glory/HK Land to solve her own personal problems (of saving stamp duty and costs or dealing with her marital problems or otherwise). This is, in my view, plainly an abuse of court process. 109.The suggestion by the plaintiff that she only discovered purported “new evidence” of the illegal acts, fraud and misrepresentation on the part of HK Glory and HK Land (see in particular the exhibits to the plaintiff’s affidavits dated 28 and 30 May 2013 in HCA347/2013) in 2011 or 2012 would not aid her case. The purported “new evidence” was just part of the documentation in respect of the Redevelopment Project and had been canvassed in Part IV above. In any event, they had been produced by the plaintiff and answered by HK Glory in previous proceedings and in HCA347/2012, and I am persuaded that the plaintiff’s allegations were wholly groundless. That being the case, the plaintiff’s reliance on the provisions in the Theft Ordinance Cap.210, Unconscionable Contracts Ordinance Cap.458, Misrepresentation Ordinance Cap.284, Crimes Ordinance Cap.200, the law of trespass, section 16 of the High Court Ordinance Cap.4, Orders 1A and 1B of the RHC also falls away, and there is no infringement of article 10 of the Bill of Rights or article 35 of the Basic Law. 110.In the circumstances, since the plaintiff’s claim is wholly without merit and not salvageable by amendment, I order that the plaintiff’s Statement of Claim supplemented by the 347/13 Particulars in HCA347/2013 and the plaintiff’s Statement of Claim in HCA432/2013 be struck out, and the Subject Actions be dismissed. On such basis, there is no need for me to grant extension of time for HK Land to file and serve their Defence in HCA432/2013. VII. P’s347 1ST SUMMONS 111.The Writ of Summons in HCA347/2013 was served on JSM on 6 March 2013. JSM on behalf of HK Glory filed acknowledgment of service giving notice of intention to defend on 7 March 2013. According to Order 18 rule 2 of the RHC, the prescribed deadline for HK Glory to file and serve their defence fell on 16 April 2013. But on 15 April 2013, HK Glory issued a summons to apply for inter alia an extension of time to file and serve their Defence until 28 days after the determination of the D’s 347 1st Summons. On 17 April 2013, the plaintiff applied to enter default judgment against HK Glory by P’s 1st 347 Summons. 112.On 26 April 2013, Master J Wong granted extension of time until 9 May 2013 for the defendant to file and serve their Defence. On 9 May 2013, I granted further extension of time until 14 days after the final disposal of D’s Summons, P’s 347 1st Summons and paragraphs 1, 3 and 4 of P’s 347 2nd Summons. Hence, the deadline for HK Glory to file and serve their Defence is not yet due, and there is no merit to P’s 1st 347 Summons which I therefore dismiss. VIII. P’s 347 2ND SUMMONS 113.Since I have found in favour of HK Glory to strike out her claim in HCA347/2013 and to dismiss the action, the plaintiff’s application for the reliefs in paragraphs 1, 3 and 4 in P’s 347 2nd Summons (which is the converse of D’s 347 Summons) must also be dismissed. Further, as I have found the plaintiff’s claim in HCA347/2013 to be frivolous and vexatious and an abuse of court process, there is simply no basis for making any RPO against the HK Glory. I also dismiss paragraphs 1, 3 and 4 of P’s 2nd 347 Summons. IX. D’S 347 AND 432 SUMMONSES: RAO AND RPO 114.Ms Leung reminded that the matters complained of by the plaintiff in the Subject Actions concerned the same or closely similar subject matter already litigated in her previous actions against HK Glory, HK Land and others as referred to in Part V above, all of which had been struck out and/or dismissed by the court. The Subject Actions were the plaintiff’s 6th and 7th attempts to bring claim on the same or closely similar subject matter. The plaintiff also lodged numerous unwarranted requests and complaints against HK Glory and HK Land since/around 2009. Even though HK Glory and HK Land (and/or JSM) had patiently replied to the plaintiff and tried to resolve the matter, her unwarranted complaints persisted. 115.In his Decision dated 20 February 2013 in HCA366/2012 and HCA1324/2012, DHCJ Lok observed that notwithstanding the dismissal of all of the plaintiff’s similar claims against other related parties to the Development Agreement, the plaintiff still persisted in lodging unmeritorious claims against HK Glory, and she had a tendency of taking out a lot of unnecessary summonses and notices of appeal before the hearings. This is also borne out in HCA347/2013 in which I had already dealt with quite a number of summonses filed by the plaintiff prior to the present applications,[40] and there was another summons by the plaintiff that was dismissed by Master Ho on 22 March 2013 and further dismissed on appeal by To J on 13 June 2013. 116.Indeed, even after HCA1582/2012 was struck out by Master K Lo on 9 February 2013, the plaintiff took out a further summons dated 20 February 2012 against HK Land and their directors in HCA1582/2011, which summons was dismissed by Master R Lai on 25 April 2012. 117.I accept that unless the plaintiff is restrained by RAO/RPO, she would continue to commence unfounded actions and applications against HK Glory, HK Land and/or related party(ies) on the same subject matter. It would be a waste of court time and resources to allow such claims to proceed, and RAO/RPO would prevent further abuse of the court process.[41] 118.I therefore order that RAO and RPO be imposed against the plaintiff in the Subject Actions on terms as set out in Schedule II to this Decision. In coming to this conclusion, I have not taken into account the RPO order imposed on the plaintiff by DHCJ Lok in relation to 6 actions concerning her previous employment.[42] X. CONCLUSION 119.There is no reason why costs should not follow event. I therefore grant a costs order nisi that the plaintiff do pay:
The plaintiff appeared in person Ms Leung Siu Man Nancy, of Mayer Brown JSM, for the defendants Schedule I Part A (against HK Glory) – LDCS1000/2003
Part B (against the Trustees) – HCA1567/2011
* these amounts were assessed by the plaintiff in HK$ Part C (against FCLK and Mr Billy Kong) – HCA1568/2011
* these amounts were assessed by the plaintiff in HK$ Part D (against HK Land and their 2 directors)– HCA1582/2011
* these amounts were assessed by the plaintiff in HK$ Part E(against HK Glory) – HCA366/2012
* $ (amounts to be assessed) by the plaitiff Part F (against HK Glory) – HCA347/2012
Part G (against HK Land) – HCA432/2013
Schedule II Applicable to HCA347/2013
Applicable to HCA432/2013
Applicable to HCA347/2013 and HCA432/2013
[1] see my Reasons for Decision dated 16 May 2013 (“16/5/13 Reasons”) [2] see my Reasons for Decision dated 13 August 2013 (“13/8/13 347 Reasons”) [3] see my Reasons for Decision dated 3 May 2013 (“3/5/13 Reasons”), the 16/5/13 Reasons, my Decision handed down on 15 July 2013 (“15/7/13 Decision”), and the 13/8/13 347 Reasons [4] comprising 257 named individuals and companies, including the plaintiff and Lee, being owners of 173 units in the Old Building (see First Schedule to the Development Agreement on the List of Owners of the Old Building) [5] see letter of appointment by the Majority Owners dated 16 October 2008 [6] see clauses 8.02, 8.04 and 8.08 and Second Schedule of the Development Agreement [7] see clauses 10.10 and 10.15 of the Development Agreement [8] see clauses 10.12-10.13 of the Development Agreement [9] see Part V below [10] see paragraphs 96 – 97 below [11] see paragraphs 89 – 90 below [12] see paragraph 38 above [13] see paragraph 36 above [14] see paragraphs 19 – 22 and 40 – 41 above [15] see paragraphs 91 – 93 below [16] see paragraph 40(b) above [17] see paragraph 22 above [18] as evidenced by a certificate signed by HK Glory [19] see footnote 18 [20] as evidenced by 2 receipts dated 11 January 2006 signed by the plaintiff and Lee [21] see summary of events dated 21 September 2010 annexed to email from JSM to the police dated 22 September 2010 [22] see footnote 21 [23] which was to consist of 18 committee members elected by the Majority Owners [24] copies of such minutes of meetings were provided by HK Land to the Real Estate Developers Association of Hong Kong under cover of their letter dated 15 June 2011 in response to the letter dated 2 June 2011 from the Transport and Housing Bureau relating to a complaint by the plaintiff [25] eg representatives of the Majority Owners had visited the mock up units as well as the finished units, and design changes were made as a result of the comments received [26] see letter from HK Land to REDA dated 15 June 2011 [27] see letter from the plaintiff to JSM dated 11 November 2009 [28] see paragraph 46 above [29] see footnote 21 [30] see paragraph 18 above [31] see paragraph 29 above [32] see footnote 21 [33] see footnote 21 [34] see paragraph 80 above [35] see footnote 21 [36] see paragraph 24 above [37] see paragraph 97 below [38] see paragraphs 41 and 80 above [39] see Total Lubricants Hong Kong Limited & ors v Christophe de la Cropte de Chanterac & ors HCA 1694/2008, Poon J (unreported, 15 December 2009) [40] see my 3/5/13 Reasons, 16/5/13 Reasons, 15/7/13 Decision, and 13/8/13 347 Reasons [41] see Ng Yat Chi v Max Share Ltd & anor (2005) 8 HKCFAR 1 [42] see Leung Kwai Ling, L v Carmel Chow and ICAC (Independent Commission Against Corruption) & ors HCA1784/2011, HCA1785/2011, HCA2198/2011, HCA194/2012, HCA195/2012 and HCA251/2012, DHCJ Lok (unreported, 16 November 2012) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 347/2013