WU WAI SUM STELLA v. MAN TING CHU

DCCJ1742/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1742 OF 2008

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BETWEEN

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D E C I S I O N

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1.  The applicant, the Plaintiff applied under Section 38A of the District Court Ordinance, Cap.336 for an order that the Registrar of the District Court to be authorised to execute an assignment to reassign the suit property which is registered in the name of the Defendant to the Plaintiff pursuant to my judgment of 22 October 2009.

2.  The Defendant opposed the application claiming he is willing to execute the assignment on condition that he is paid his out of pocket expenses which included the renovation of the suit premises in 1987 to 1992 during his occupation of those premises, and the Government rates and ground rents he had paid out, plus the insurance premia during and after the mortgage period of the suit property.

3.  Section 38A of the District Court Ordinance provides the following:

“Execution of instruments by order of the Court

(1) subsection

(2) applies where

(a) The Court has given or made a judgment order directing a person to

(i) execute any conveyance, contract or other document or,

(ii) endorse any negotiable instrument and;

(b) That person

(i) neglects or refuses to comply with the judgment or order or;

(ii) cannot, after reasonable enquiry be found.

(2) The Court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document is to be executed, or that the negotiable instrument is to be endorsed, by such person as the Court may nominate for that purpose.

(3) A conveyance, contract, document or instrument executed or endorsed in accordance with subsection (2) has the same effect as if it had been executed or endorsed by the person originally directed to execute or endorse it.

(4) Nothing in this section abridges the powers of the Court to proceed by attachment against any person neglecting or refusing to execute and endorse any such instrument.”

4.  The Plaintiff exhibited with her affirmation of 22 November 2010 correspondences between the Plaintiff’s solicitors and the Defendant’s former solicitors on the execution of the reassignment.  The Defendant’s solicitor then filed an affirmation of the Defendant in answer dated 10 December 2010, claiming he is entitled to be reimbursed all Government rates and rents on the suit property from August 1994 to June 2008, insurance premia between 1992 to 2011 and decoration expenses between September 1987 to May 1992.  The Defendant is, in fact, making a claim for damages for the decoration expenses, rates and ground rents and insurance premia in his affirmation. 

5.  This claim was not part of his counterclaim in these proceedings.  The prayer in his counterclaim was for the vacant possession of the suit property and for damages for trespass against the Plaintiff.  He had never prayed for the return of the out of pocket expenses that he contributed to the suit property.  He has further raised legal arguments referring to case law in his affirmation.  It was obviously drafted by his then solicitors, Messrs P T Yeung & Tang and filed on his behalf by his then solicitors.

6.  He is now acting in person.  His former solicitors should have known better to raise legal arguments citing case authorities in an affirmation in opposition to the Plaintiff’s summons.  These should have been raised in the submission of the Defendant at the hearing today, rather than by an affirmation in opposition to the application.  I suspect the Defendant’s former solicitors knew they were not going to be retained by the Defendant at the hearing, therefore, they had prepared his argument with authorities for him but wrongly included the arguments and case authorities in his affirmation.  This is against the rules of the court and well known to Messrs P T Yeung & Tang. 

7.  I agree with Mr Lee, legal representative for the Plaintiff, that the Court, after giving judgment in the case is ‘functus’ save for the execution of the orders given at the time of the judgment.  This is also further covered by Section 38A of the District Court Ordinance, Cap.336.  The Court has the jurisdiction to grant the Plaintiff’s application under Section 38A in the execution of the judgment but not to impose conditions which are outside the proceedings. 

8.  Section 38A provides that the Court may, on such terms and conditions as may be just, order the conveyance or other documents or contract to be executed, these terms and conditions under 38A(2) may be imposed for the execution of those orders granted in the judgment, not to impose additional conditions proposed by the Defendant.

9.  The Defendant is, in fact, making a different claim on top of the counterclaim he brought in these proceedings.  They are outside the ambit of his counterclaim. Even if he had included them in his counterclaim and the prayer, he still would not have a lien over the suit property.  I have set out in my judgment that the Defendant had benefited from the enjoyment of the suit property rent free when he resided at the property with the Plaintiff and their children. 

10.  The payment of rates was levied by the Government as the registration of the property was in his name and, in fact, he had defaulted in the payment of the Government rates and he had only paid them after he was taken to the Small Claims Tribunal by the Government Department.  The insurance premia he had to pay because he had a mortgage on the suit property for his own use.  All of these I have covered in my judgment which I will not repeat here.

11.  In any event, as mentioned above, I have no jurisdiction to impose any condition in the terms set out by the Defendant.  The Defendant has no locus to demand such repayments when he had never claimed for them in the first place in these proceedings.  Therefore I reject the Defendant’s demands for conditions to be imposed i.e., payment or reimbursement of his out of pocket expenses.

12.  I grant an order in terms of the Plaintiff’s summons and order costs against the Defendant.

(Discussion re error in Plaintiff’s summons)

13.  I insert the words “To the Plaintiff” in line two after the words, “of the Defendant.” 

(Discussion re costs)

15.  I’ll cut it down to $20,000.