HUNDRED GAIN INTERNATIONAL HOLDING LTD v. CHENG MEI HOLDINGS LTD (RECEIVERS AND MANAGERS APPOINTED) AND OTHERS

HCA 502/2023

[2023] HKCFI 3147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 502 OF 2023

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BETWEEN

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_________________________________________

DECISION ON THE FORM OF THE ORDER

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1.  By a decision dated 24 October 2023,[1] I ruled that the Agreement is not registrable under the LRO, whereas the Writ, except in so far as it is making a claim on equitable lien, is also not registrable. In so far as the claim on equitable lien is concerned, although it is a lis pendens for the purposes of the LRO, I ruled that it is not arguable and so the Writ, in so far as that claim is concerned, should be removed from the pending section.

2.  I directed the parties to agree on the terms of the Order to be made by me.[2] The parties being unable to agree, this is my decision on the terms of the Order. In doing so, I have considered the positions of the parties as stated in correspondence between them and with the Court.

3.  I attach hereto the Order that I am making. In this Decision, I shall deal with what are the two substantive areas of dispute between the parties (the rest are merely matters of drafting).

4.  The first issue is what is now [5] of the Order, directing Messrs Jun He Law Offices, which had presented the Writ to the Registry for registration on behalf of the plaintiff, to write to the Registry to remove the Writ from the pending section, if the plaintiff fails to do so as directed under [4] of the Order. I consider this to be necessary to ensure that the effect of the Decision is properly carried out and I do not see how the plaintiff or Messrs Jun He Law Offices can possibly object to that.

5.  The other issue is that Smart Edge asks for injunctive reliefs from me against the plaintiff in the following terms:

“6. The Plaintiff, whether by itself, its employees, servants, agents or legal representatives, or any of them or otherwise, be restrained from delivering or causing to be delivered to the Land Registry for registration against the title to the Property:

(a) the Agreement;

(b) the Writ; and

(c) any notice, deed, conveyance, document, instrument or judgment of whatsoever nature and howsoever arising in relation to or in connection with the Writ or the Agreement.

7. The Plaintiff, whether by themselves, their employees, servants, agents or legal representatives, or any of them or otherwise, further be restrained from:

(a) holding themselves out as having any right, interest, benefit or title in, of, or to the Property, whether at law or in equity, of whatsoever nature and howsoever arising in connection with the Agreement or the Writ; and/or

(b) delivering or causing to be delivered to the Land Registry for registration against the title to the Property any notice, deed, conveyance, document, instrument or judgment of whatsoever nature and howsoever arising, in contravention of any of subparagraph 7(a) above.”

6.  A penal notice is also proposed to be included.

7.  It is said by Smart Edge that the injunctive reliefs are to ensure that my Decision would not be rendered nugatory.

8.  I do not consider the injunctive reliefs to be necessary.

9.  Subject to any appeal from the Decision, my rulings that the Writ (except for the claim on equitable lien) and the Agreement are not registrable, and that the claim on equitable lien is not arguable, are open, clear and binding on the plaintiff. Any attempts by or on behalf of the plaintiff to relodge the Agreement or the Writ, or any documents in relation thereto, for registration would be in blatant disregard of the Decision, which I would imagine the Registry would reject summarily, and any necessary further applications to the Court to vacate or remove would be most likely to be granted summarily with indemnity costs, and any lawyers so acting may well face serious personal consequences themselves.

10.  Thus, notwithstanding the previous attempts to register instruments against the Property,[3] I do not think that the chances of what are intended to be restrained by the proposed injunctions to occur are likely. I also do not think that, given my Decision, the chances of the plaintiff or anyone acting on its behalf doing what is stated at the proposed [7(a)] to be likely. There is no evidence that any of such matters is likely to take place.

11.  The penal notice is therefore also unnecessary.

12.  I would point out that what I said at [9] are intended to cover the Agreement, and the Writ in its present form. Thus, for the avoidance of doubt, what I said at [9] does not cover any new proceedings against Smart Edge and Goldstone asserting a claim under section 60 of the CPO. This appears to be the position of Smart Edge as indicated in correspondence under the proposed injunctions.

13.  I make no order on costs.

HCA 502/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 502 OF 2023

__________________

BETWEEN

BEFORE MR RECORDER STEWART WONG SC IN CHAMBERS

ORDER

UPON the application of the 3^rd Defendant by way of Summons filed herein on 11 April 2023 (“Summons”)

AND UPON reading the Affidavit of Cosimo Borrelli filed herein on 11 April 2023 together with the exhibits referred thereto, the Affirmation of Fong Tim filed herein on 8 June 2023 together with the exhibits referred thereto, the Third Affidavit of Cosimo Borrelli filed herein on 19 June 2023 with the exhibits referred thereto, and the Fourth Affidavit of Cosimo Borrelli filed herein on 21 July 2023 together with the exhibits referred thereto

AND UPON hearing senior counsel for the 3^rd Defendant and senior counsel for the Plaintiff

IT IS DECLARED that: -

1.   The Writ of Summons filed herein on 3 April 2023 (“Writ”) by Hundred Gain International Holding Limited (“Plaintiff”) and recorded under the “deeds pending registration” section of the land register of the property known as ALL THAT piece or parcel of ground registered in the Land Registry as NEW KOWLOON INLAND LOT NO. 6314 TOGETHER with the messuages, erections and building thereon known as GOLDIN FINANCIAL GLOBAL CENTRE, NO. 17 KAI CHEUNG ROAD, KOWLOON, HONG KONG (“Property”) (bearing Memorial No. 23040400100015) (“Instrument”), except in so far as a claim is made for an equitable lien, is not an instrument registrable on the land register of the Property under the Land Registration Ordinance (Cap. 128) (“LRO”). In so far as the Writ relates to a claim for an equitable lien over the Property, it is a lis pendens for the purpose of the LRO, but the same is not arguable and it should be removed from the “deeds pending registration” section of the land register of the Property.

2.   The agreement for sale and purchase dated 25 February 2022 made between the Plaintiff and the 1^st and 2^nd Defendants (“Agreement”) is not an instrument registrable on the land register of the Property under the LRO.

AND IT IS ORDERED that: -

3.   The Instrument be vacated, discharged, cancelled and/or removed from the “deeds pending registration” section of the land register of the Property.

4.   The Plaintiff do, within 14 days from the date of service of this Order, procure that the Instrument and any and all references to or notations of the Instrument be vacated, discharged, cancelled or removed from the “deeds pending registration” section of the land register of the Property.

5.   In the event that any references to or notations of the Instrument remain on the land register of the Property after the date falling 14 days from the date of service of this Order, Jun He Law Offices, in its capacity as the firm of solicitors which presented the Instrument for registration on the land register of the Property, do send a letter forthwith to the Land Registrar in terms of the draft in the Appendix hereto and do all such things as may be necessary or expedient to ensure the prompt vacation, discharge, cancellation and/or removal of the Instrument from the land register of the Property.

6.   There be liberty to apply.

7.   There be an order nisi that the costs of and occasioned by the Summons be paid by the Plaintiff to the 3^rd Defendant, with a certificate for one leading counsel and one junior counsel, to be taxed (on a party to party basis) if not agreed.

Dated this 24th day of October 2023

Registrar

APPENDIX

FORM OF LETTER TO BE ISSUED TO THE LAND REGISTRAR

[Letterhead of Jun He Law Offices]

Dear Sir or Madam,

All that piece or parcel of ground registered in the Land Registry as NEW KOWLOON INLAND LOT NO. 6314, TOGETHER with the messuages, erections and building thereon known as GOLDIN FINANCIAL GLOBAL CENTRE, NO. 17 KAI CHEUNG ROAD, KOWLOON, HONG KONG (the “Property”)

Sealed Copy Writ of Summons Memorial No. 23040400100015 (Registration Withheld)

Reference is made to the captioned matters.

We refer to the Decision and the Order of Recorder Stewart Wong SC dated 24 October 2023 in the High Court of the Hong Kong Special Administrative Region Court of First Instance Action No. 502/2023 (“Proceeding”), copies of which are enclosed.

Pursuant to the Decision and the Order, we hereby immediately withdraw and cancel the application for registration of the sealed copy of the writ of summons issued on 3 April 2023 in the Proceeding (bearing Memorial No. 23040400100015) and recorded under the “deeds pending registration” section of the land register of the Property (“Instrument”).

We request that you kindly remove any and all references to or notations of the Instrument from the land register of the Property forthwith.

We shall be grateful if you would kindly return all relevant documents delivered to your office for the registration of the Instrument to us.

If you should have any questions or require any further information, please contact our [●] at +852 [●] or [insert email].

Yours faithfully,

Jun He Law Offices

Encl