Mak Ho Fung v. Mak Kai and Others

CACV 246/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2011

(ON APPEAL FROM DCCJ NO 2027 OF 2008)

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DECISION

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Hon Chu JA giving the decision of the Court of Appeal:

1.We gave judgment on 5 December 2013 allowing to a limited extent the appeal of the 1^st, 3^rd and 4^th defendants. We set aside (i) the declaration that the assignment of the Property from the 1^st and 2^nd defendants to the 3^rd and 4^th defendants under the Assignment is null and void and of effect, and (ii) the order that the 1^st and 2^nd defendants execute an assignment to assign the Property to the plaintiff. We substituted it with an order that the 3^rd and 4^th defendants transfer the legal title of the Property to the plaintiff, and for that purpose the parties have liberty to apply for directions.

2.By letter dated 28 January 2014, the plaintiff’s solicitors apply for directions (“the plaintiff’s application”) that the 3^rdand 4^th defendants be ordered to pay: (i) the conveyancing costs and disbursements, and (ii) the stamp duty, occasioned by the transfer of title of the Property from the 3^rd and 4^th defendants. The basis for the application is that the 3^rd and 4^th defendants wrongfully purchased the plaintiff’s beneficial interest in the Property. 

3.By letter dated 7 February 2014, the court directed the 3^rd and 4^th defendants to provide their comments within 7 days.  The 3^rd and 4^th defendants’ solicitors have not responded to the letter.

4.For the reasons set out below, we are of the view that the plaintiff’s application should be refused:

(1) The plaintiff’s case against the 3^rd and 4^th defendants in the pleadings is that they are not bona fide purchasers without notice of the plaintiff’s interest and they hold the property on trust for the plaintiff.

(2) The Amended Statement of Claim only seeks a declaration against the 3^rd and 4^th defendants.  The plaintiff did not even seek an order that the 3^rd and 4^th defendants transfer the title of the Property to him.

(3) Although he had filed a respondent’s notice to the 1^st, 3^rd and 4^th defendants’ appeal, the plaintiff had not asked to substitute the trial judge’s order by an order that the 3^rd and 4^th defendants transfer the Property to him.  It was only at the appeal hearing when answering question from the court that the plaintiff’s counsel indicated that a proper order would be to direct the 3^rd and 4^th defendants to effect a transfer of the Property.  Even then, it was not argued that the transfer should be at the costs of the 3^rd and 4^th defendants. 

(4) It is too late to ask this court to grant the substantive relief sought in the plaintiff’s application when the appeal was concluded.  Although in paragraph 49 of the Judgment we ordered the 3^rd and 4^th defendants to transfer the legal title of the Property to the plaintiff with liberty to apply for directions, the liberty to apply provision was limited to the working out of the order and giving effect to its terms.

C Y Tsang, for the plaintiff (respondent)

K L Leung & Co, for the 1^st, 3^rd and 4^th defendants (appellants)