Ckb v. Ckkk

HCMP 799/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 799 OF 2015

____________

____________

_______________

JUDGMENT
_______________

1.The plaintiff, CKB institutes these proceedings under section 19 of the Land Registration Ordinance, Cap 128 to vacate the registration of the Originating Summons in HCMP 704/2015 (“the Registered Proceedings”).

2.The Registered Proceedings are instituted by CKB’s brother CKKK (“CKK”), the defendant herein.  The Registered Proceedings are brought against their mother M as the 1st defendant and CKB as the 2nd defendant.  CKK seeks in the Registered Proceedings a declaration that the enduring power of attorney (“the enduring power”) dated 15 January 2014 and executed by M as the donor appointing CKB as M’s attorney is invalid.

3.M has by the enduring power purportedly authorized CKB to act on her behalf in respect of her home in Lai Chi Kok.  She is the absolute owner of her home.  The enduring power has been registered at the Land Registry against M’s home.

4.It is CKK’s case that M had since before 31 December 2013 been incapable by reason of mental incapacity as defined in the Mental Health Ordinance, Cap 136 of managing and administering her property and affairs.  Hence, CKK claims that the enduring power was invalid having been executed by M but without the necessary mental capacity to do so.

5.I have decided on 15 June 2015 in HCMH 83/2013 that M is incapable by reason of mental incapacity as defined in the Mental Health Ordinance of managing her property and affairs.  I also appointed CKK as the committee of her estate.

6.CKB said in his affirmation in support of these proceedings that the registration of the Registered Proceedings is an abuse of process as these proceedings operated as a lis pendens preventing him from exercising the power of disposition in the enduring power.  CKB therefore issued these proceedings to vacate the Registered Proceedings from the Land Registry under section 19 of the Land Registration Ordinance.

7.Section 19 of the Ordinance provides:

“19. The court or judge before whom any property sought to be bound is in litigation, may on the determination of the lis pendens, or during the pendency thereof, where the said court or judge is satisfied that the litigation is not prosecuted bona fide, or for other good cause shown, make an order for the vacating of the registration in the Land Registry of such lis pendens without the consent of the party who registered it, and may direct the party on whose behalf the registration was made to pay all the costs and expenses occasioned by the registration or the vacating thereof, including the costs of the application to vacate, or may make such other order as to such costs or any of them as to the said court or judge may seem just.”

8.CKK opposes these proceedings.  His 1st ground is that under O 80 r 2, a person under disability may not bring or make a claim in any proceedings except by a next friend.  O 80 r 2 provides:

“(1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.

(2) Subject to the provision of these rules, anything which in the ordinary conduct of any proceedings is required or authorized by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

(3) Except where the Official Solicitor is acting as next friend or guardian ad litem, a next friend or guardian ad litem of a person under disability must act by a solicitor.”

9.CKB said in reply that section 19 can be invoked by anyone interested in the registration.  He is applying in his position as the attorney of M and is not bringing these proceedings on her behalf.  He argues that he is bringing these proceedings in his own right as the attorney of M and not on behalf of M.  The registration of the Registered Proceedings is affecting him in the exercise of the powers conferred on him by the enduring power though he excises such rights as M’s attorney.  Hence, O 80 r 2 is not applicable.

10.I think this ground is arguable.  Since there was an insufficient argument on this ground, I would not prefer to come to any conclusion on it. 

11.CKK’s 2nd ground of opposition is that the Registered Proceedings are properly registered at the Land Registry against M’s property because it affects the interest in the property. 

12.“Lis pendens” is defined in section 1A of the Land Registration Ordinance as follows:

““lis pendens” (待決案件) means-

(a)any action or proceeding pending in a court or tribunal that relates to land or any interest in or charge on land; and

(b)a bankruptcy petition.”

13.Since the enduring power has authorized CKB to deal with M’s property, CKB has the power to encumber or dispose of the property as the attorney of M.  The enduring power thus affects the interests of the property. It has also been registered at the Land Registry against M’s property.

14.The Registered Proceedings in turn seek to declare the enduring power invalid.  They therefore also relate to M’s property as they seek to put an end to CKB’s authority to deal with the property.  The Registered Proceedings are therefore within the definition of lis pendens in section 1A of the Land Registration Ordinance and is registrable at the Land Registry as a lis pendens.

15.CKB also raised the argument in reply that the Registered Proceedings have not been decided and they should not be registered. But CKB overlooked the definition of lis pendens which indeed refers to “action or proceeding pending in a court or tribunal”.  The action or proceedings must be pending and not concluded in order to be registrable.  I disagree with CKB on this point.

16.CKB’s next argument is that CKK had been late in launching the Registered Proceedings in late March this year when he had been aware of the enduring power since late last year. 

17.It is however clear that CKK has started proceedings at the end of 2013 under part II of the Mental Health Ordinance, Cap 136 and registered those proceedings at the Land Registry at the beginning of 2014 against Madam Ming’s property.  That was for the purpose of stopping any dealing by CKB of the property.

18.The registration of the mental health proceedings had to be withdrawn because of CKB’s objection and that they were not related to M’s property.  CKK, after withdrawing the registration of the mental health proceedings under part II of the Mental Health Ordinance, immediately issued the Registered Proceedings and registered them at the Land Registry against M’s property.  In the premises, I do not think there was any delay on the part of CKK in taking action after he was aware of the enduring power.

19.I also find that there is no evidence suggesting that CKK has not prosecuted the Registered Proceedings bona fide or that there is any other cause shown for vacating the registration of the Registered Proceedings under section 19 of the Land Registration Ordinance.

20.In the premises, I find that the Registered Proceedings are properly registered at the Land Registry as a lis pendens against M’s property at the Land Registry.  I also find that there is no cause for the registration to be vacated from the Registry. 

21.I therefore dismiss these proceedings.  I also make a costs order nisi that CKB do pay CKK the costs of these proceedings to be taxed. 

22.I further order that the costs be assessed summarily by me.  The defendant CKK should within 14 days from today file and serve a bill of costs for summary taxation.  The plaintiff CKB should within 14 days thereafter file and serve his objections, if any, to the bill.  The defendant CKB may within 7 days thereafter file and serve his reply to the objections, if any.  The costs will then be assessed summarily on paper.

The plaintiff appeared in person

Ms Yanky Lam, instructed by Charles Yeung Clement Lam Liu & Yip, for the defendant