The Bank of New York Mellon v. Sun Jiangrong

HCMP 887/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 887 OF 2013

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D E C I S I O N

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1The plaintiff, the judgment creditor in the sum of HK$20,007,000, seeks an order for sale of the judgment debtor’s property.

2There is also a legal charge in favour of the Bank of East Asia which has priority.  The plaintiff has reached an agreement with that Bank whereby it will satisfy that charge (now in the region of HK$11,000,000) out of the judgment sum received from the proceeds of sale.

3On 12 January 2015 the defendant tried to stay the proceedings, alternatively sought leave to file evidence to oppose the application.

4By 27 January 2015 (by letter dated 23 January 2015 from his solicitors) he abandoned his opposition.

5Coincidentally (or otherwise) on the same day that the letter was written, his wife took out an application to intervene in the proceedings.  She claimed that she had a 50% beneficial interest in the property.

6Her husband (the defendant) had always claimed that the property was his alone, and had never made any mention of an interest held by his wife.  Nor had he raised any such interest in the action brought by the Bank of East Asia.

7On 27 January 2015 the wife was given leave to file supplemental affirmation evidence.  Two affirmations were filed by her. Apart from plain assertions no evidence was forthcoming to support her belated claim.  She raised allegations of paying to or for her husband odd amounts of money, totalling RMB1,025,824 with deposits into an unidentified bank account.

8The source of such monies was not shown.  There was no evidence of any money reaching the defendant husband.  There was no evidence that it was used to buy any property let alone the subject property.

9She is a business woman owning at some stage four properties.  Where the money came from to purchase these, or what proceeds came from them or where they went are undisclosed.  There is no evidence from the defendant in support of his wife’s claim.

10Neither of them resides in the property and it may be of some significance that her belated interest arises on the very day that her husband abandons his opposition.

11At a hearing on 30 March 2015 she was represented by a firm of solicitors.  It was adjourned until 15 May 2015. On that day she was again represented by the firm of solicitors.  She applied for further time to file further evidence.  An “unless” order was made, allowing her until 29 May 2015 to file a further affirmation, failing which she would be barred from adducing further material.

12She failed to comply with that order.  Instead, she took out a further application at almost the last minute before the hearing on 17 June 2015 fixed before me.  Despite the affirmation of the solicitors there was no proper explanation for non‑compliance or for the further delay.

13Accordingly I dismissed her application for an adjournment and her application to intervene.  There was no substance provided in support, no merit, and there had been inexcusable delay.  I took the view that there were deliberate delaying tactics to postpone the inevitable. 

14The order for costs to be paid to the plaintiff was as follows:

(1) The defendant is to pay half the costs wasted by the intervening process.

(2) The defendant is to pay the costs of obtaining the order for sale.

(3) The intervener is to pay the other half of the intervening costs.

15I made orders governing the payment into court of the balance of the net proceeds of sale.

Ms R Lam, instructed by Hogan Lovells, for the plaintiff (judgment creditor)

Defendant (judgment debtor) in person, absent

Miss M Mok of Fung, Law & Ng, for the intended intervener