JIM KIU t/a SANDWIN INTERIOR CONTRACTOR v. MADAM LAM LEE CHU

DCCJ 8133/1992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 8133 OF 1992

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DCMP 2091/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2091 OF 2009

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BETWEEN

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D E C I S I O N

1.  There are 2 matters before this court:

(1)  in DCCJ 8133/1992 (“8133/92”), the determination of the costs of and incidental to Lam Lee Chu (“Lam”)’s application to discharge and to vacate the registration in the Lands Registry of a charging order in favour of Jim Kiu (“Jim Kiu”) against her property; and

(2)  In DCMP 2091/2009 (“2091/09”), the determination of Lam’s application for the withdrawal of the affirmation of Jim Kiu from the Deeds Pending Registration, or if registered, vacation of the registration, in the Lands Registry against her property in DCCJ 17890/1992 (“17890/92”).

2.  The dealings between the parties that eventually led to these 2 matters now before this court began 17 years ago.

Background

3.  As a result of the business dealings between Lam’s husband and Jim Kiu, Lam drew 2 cheques in favour of Jim Kiu.  The cheques were dishonoured.  In 1992, Jim Kiu commenced 2 actions, namely 8133/1992 and 17890/1992, against Lam for the dishonoured cheques in the sums of HK$100,000 and HK$50,000 respectively.

4.  Jim Kiu obtained default judgment against Lam in 8133/92 on 11 June 1992.  On 25 August 1992, he obtained default judgement against Lam in 17890/92.

5.  In respect of the judgment debt in 8133/92, Jim Kiu has subsequently obtained a charging order against Lam’s beneficial interest (as a joint tenant) in the captioned residential property at Mei Foo Sun Chuen (“the Property”).  Jim Kiu has also commenced bankruptcy proceedings (HCB 539/1992) against Lam.

6.  On 10 October 1992, Lam’s husband tendered a cashier order in the sum of HK$111,000.  Through his then solicitors, Messrs Simon Siu & Wong (“SW”), Jim Kiu accepted the payment and wrote to Lam on the same day as follows (“the 10/10/92 Letter”):

“    Re: C.J. Action No.8133 of 1992

      Bankruptcy No. B538 of 1992

      ___________________________

We have instruction to accept your Cashier’s Order No.41-023839 and to withdraw our client’s claim against you in the above matters.”

[N.B. The bankruptcy proceedings number B538 was a typographical error.  It was in fact B539.]

7.  On 19 October 1992, the bankruptcy proceedings against Lam were indeed withdrawn.

8.  Nothing was done about the charging order in 8133/92 and its registration in the Lands Registry.  So far, no enforcement action in respect of the judgment debt in 17890/92 has been taken.

9.  The whole matter then went dormant.  The record shows that Sandwin Interior Contractor, the business operated by Jim Kiu, also ceased in 2002.

10.  In October 2006, Lam, through her then solicitors, Messrs Gallant Y T Ho & Co (“GH”), made enquiry with Jim Kiu’s solicitors about the charging order against the Property in 8133/92.  SW were now Messrs Simon Siu, Wong, Lam & Chan (“SWLC”).

11.  In the correspondence with GH, SWLC, on behalf of Jim Kiu, stated that the total indebtedness owed by Lam to Jim Kiu had not been fully settled.  The amount owed, inclusive of interest and costs, has accumulated to a total sum of HK$135,635.76.  Through SWLC, Jim Kiu threatened to take enforcement proceedings in respect of such sum, if Lam failed to settle the same.

12.  Indeed, on 26 October 2006, Jim Kiu applied ex parte by affirmation for a charging order against Lam’s interest in the Property in respect of the indebtedness arising from the judgment debt in 17890/92 (“the 26/10/06 Affirmation”).  Jim Kiu also delivered the affirmation to the Land Registry for registration as lis pendens.  However, registration of the 26/10/06 Affirmation was withheld and recorded under “Deeds Pending Registration” (Memorial No. 06102702660016).

13.  The matter was again left dormant for another period of more than 2 years.

14.  In April 2009, Lam, through her current solicitors, Messrs Ng & Co (“NC”), wrote to Jim Kiu and demanded the discharge the charging order in 8133/92.  Through SWLC, Jim Kiu instead demanded settlement of the outstanding indebtedness owed by Lam.

15.  Finally on 9 July 2009, Lam filed her summons for the discharge of the charging order in 8133/92.  The summons was heard on 27 July 2009.  Registrar Poon (as he then was) discharged the charging order in 8133/92 and vacated its registration at the Lands Registry.  The issue of costs was reserved for argument.  This became one of the matters now before this court.

16.  On 24 July 2009, Lam also commenced originating proceedings, i.e., DCMP 2091/09, seeking to remove the 26/10/06 Affirmation from the Lands Registry.  This became the other matter now before this court.

17.  In September 2009, I ordered these 2 matters to be heard together.  Both parties have filed affidavit evidence for the purpose of this hearing.

Costs of Lam’s application to discharge the charging order (8133/92)

18.  By her summons dated 9 July 2009, Lam asks for costs of her application to discharge and to vacate the registration of the charging order in 8133/92 to be borne by Jim Kiu on an indemnity basis.  To determine the incidence of the costs liability, it is relevant to consider the question of the obligation to make the application and the parties’ stance in the application.

The obligation to apply to discharge the charging order and to vacate its registration

19.  There is no dispute that the indebtedness arising from the judgment debt in 8133/92 was settled by way of the cashier order on 10 October 1992 mentioned above.  Was there a legal obligation on either party to take step to discharge the charging order?

20.  Miss R Lam for Jim Kiu referred to section 52AB(4) of the District Court Ordinance which provides that:

“The court may at any time, on the application of the judgment debtor or of any person interested in any property to which the order relates, make an order discharging or varying the charging order.”

      [emphasis added]

21.  Likewise, O.50, r.7(1) of the Rules of the District Court provides that:

“Subject to paragraph (2) on the application of the judgment debtor or any other person interested in the subject-matter of the charge, the Court may, at any time, whether before or after the order is made absolute, discharge or vary the order on such terms (if any) as to costs or otherwise as it thinks just.”

      [emphasis added]

22.  Miss R Lam noted the specific reference in the above provisions to “the debtor” as opposed to the judgment creditor.  She submitted that there is no legal obligation on Jim Kiu as the judgment creditor to take step to apply for the discharge.  It should be the debtor’s burden to satisfy the court that the judgment debt has been satisfied to obtain the discharge.

23.  In my view, Miss R Lam’s construction of the provisions is too narrow.  In the context of the equivalent provision, i.e., section 20B(4) of the High Court Ordinance, Hong Kong Civil Procedure 2010 (Vol.1) at 50/9A/42 says:

“ …… The phrase “any other person interested in the subject-matter of the charge” is very wide and of course includes the creditor …… It would seem that if such application is made by the creditor, and there are no other interested parties, it may be made ex parte to the practice master, who may direct that notice of the discharge of the charging order should be served on the debtor.”

24.  In the present case, both Lam and Jim Kiu were persons interested in the subject matter of the charge.  The provisions do not impose an obligation to apply for the discharge of the charging order on one as opposed to the other.

25.  The above provisions were introduced by way of amendment in 2000.  However, neither party pointed out that the position was or ought to be different under the repealed Ordinance and Rules.

26.  There was no legal basis for maintaining the charging order in relation to any indebtedness other than that arising from the judgment in 8133/92.  The Registrar apparently held the same view when he granted the order to discharge the charging order in July 2009.  However, this per se does not give rise to a legal obligation on Jim Kiu to apply to discharge and to vacate the registration of the charging order at his cost.

27.  Has Jim Kiu agreed or undertaken to discharge the charging order and to vacate its registration upon the settlement of judgment debt in October 1992?  At the hearing in July 2009, Miss Chan of SWLC appearing on behalf of Jim Kiu confirmed to the Registrar that there was no such agreement between the parties.  The Registrar then queried what the 10/10/92 Letter (above) from SW to Lam could mean.  Indeed, the letter spoke of withdrawal of Jim Kiu’s claims.

28.  In my view, the terminology in the letter was embarrassing.  There is clearly no such thing as withdrawal of claims in an action where judgment has already been entered.  In the circumstances known by the parties then, this could only mean satisfaction of all the claims in the action and the withdrawal of any proceedings to enforce the judgment in 8133/92.

29.  As at the date of the letter, no step has been taken to enforce the charging order (e.g. by application for an order for possession and sale) yet. Bankruptcy proceedings have already been filed, as specifically captioned in the letter.  Jim Kiu did apply to withdraw the bankruptcy proceedings.  Lam must be aware of that as she actually signed the consent summons for that purpose 4 days after the 10/10/92 Letter.

30.  The 10/10/92 Letter made no mention of how the charging order should be dealt with or by which party and at which party’s expense.  I do not believe the evidence permits any suggestion further than that.  The fact was that Jim Kiu has since never evinced an intention to enforce the charging order.

31.  However, there is the allegation of an oral agreement between Jim Kiu and Lam’s husband back in 1992.  Allegedly, it was agreed that the judgment debt in 8133/92 would be settled first and that in 17890/92 would be settled about a month later.  Jim Kiu would not be responsible for applying for the discharge of the charging order or the costs of that unless and until the judgment debts in both cases have been settled.

32.  The circumstances in which such allegation was for the first time raised were odd.  What happened was that half way through the hearing before the Registrar, Miss Chan’s principal, Mr Siu of SWLC, joined the hearing.  Mr Siu then relayed to the Registrar the instruction from Jim Kiu about the alleged oral agreement.  According to Mr Siu, he received such instruction while he was on his way to the court that very morning.

33.  It is indeed difficult to accept that the existence of the alleged agreement was not hinted at all in the correspondence between GH and SWLC in 2006 or that between NC and SWLC in 2009 or that it somehow came to be recalled by Jim Kiu in the morning of the hearing.  If a ruling on this apparent factual dispute is called for, I am prepared to reject such allegation.

34.  In conclusion, I am not satisfied that there was any agreement regarding which party should apply to discharge and to vacate the registration of the charging order.

The parties’ stance in application

35.  Now Lam has taken out this application to discharge and to vacate the registration of the charging order.  What then was the stance of the parties?

36.  It was in October 2006 when Lam, through her husband, instructed GH to contact SWLC inquiring as to whether the charging order could be discharged.  The evidence shows the following correspondence took place between the solicitors.

37.  On 12 October 2006, Mr Ma of SWLC informed Mr Ng of GH on the telephone that Lam has not fully settled all the indebtedness owed to Jim Kiu.  It was suggested that Lam ought to be aware of such outstanding indebtedness.

38.  During the telephone conversation with Mr Ng on 17 October 2006, Mr Ma quantified the outstanding indebtedness owed by Lam to Jim Kiu.  The amount basically consisted of the principal sum of HK$50,000, interest and costs.  The total sum was HK$135,635.76.  On 24 October 2006, SWLC recapitulated the amount in writing to GH and demanded settlement of the same.

39.  In their subsequent letter to NC in 2009, GH explained that at the time, they were only given to understand that there was the charging order in respect of the judgment debt in 8133/92.  SWLC never explained that there was another action, namely, 17890/92.  GH thought SWLC were referring to the outstanding indebtedness in 8133/92 which stood in the way of the intended discharge of the charging order.

40.  Contrary to the suggestion of Lam’s husband, I am not satisfied that Jim Kiu or SWLC sought to confuse the indebtedness in the 2 actions.  Mr Ma of SWLC knew he was talking about the judgment debt in 17890/92.  This is apparent from the record of the breakdown of the indebtedness that Mr Ng of GH kept on 17 October 2006.  When threatening to institute enforcement proceedings in their letter to GH dated 24 October 2006, SWLC did not purport to seek to enforce the charging order in 8133/92.  The fact that Jim Kiu filed the 26/10/06 Affirmation 2 days later for a charging order in 17890/92 shows that.

41.  While SWLC might not have mentioned to GH about 17890/92, Lam or her husband must have also remained silent about that when they instructed GH.

42.  Further, it does not appear to me that Lam’s husband misunderstood the situation as GH did at the time.  Mr Ng of GH has apparently informed Lam’s husband of SWLC’s demand for settlement of the outstanding indebtedness.  On 24 October 2006, Mr Ng recorded the following instruction from Lam’s husband:

“…… He said he will consider to settle the outstanding amount of judgment debt.  He will inform us after consider.”

43.  It was clear to Lam’s husband that the indebtedness in 8133/92 was already settled by the cashier order for HK$111,000 on 12 October 1992.  If he thought Jim Kiu was demanding another sum in excess of HK$134,000 in relation to the same judgment debt in 8133/92, he could not have given the above instruction to GH.

44.  By then, there was no suggestion of an intended application by Lam to discharge the charging order.  Nothing in the 2006 episode manifested opposition by Jim Kiu to such intended application if made.  The fact was that after the telephone conversation on 24 October 2006, Lam or her husband did not revert or give further instruction to GH.  It was more than 2 years later did Lam instruct her present solicitors, NC, to handle the matter instead.

45.  In their first letter of demand to Jim Kiu dated 27 April 2009, NC recited Lam’s instruction that back in 1992, she had already repaid what were owed under both actions to Jim Kiu.  Notwithstanding that, and unknown to her, Jim Kiu registered the charging order against the property.  The above suggestion by Lam cannot be true.  As mentioned above, the cashier order for the sum of HK$111,000 was tendered only after Jim Kiu has already registered the charging order absolute and commenced bankruptcy proceedings against Lam.

46.  This letter went on to propose to apply for the discharge the “charging orders …… in respect of the two actions” and the “setting aside of the said charging orders”.  There was obviously only one charging order in 8133/92.  There is also no issue of the charging order being liable to be set aside as such.

47.  In any event, this letter set the beginning of correspondence between NC and SWLC that eventually led to Lam’s application to discharge and to vacate the registration of the charging order on 9 July 2009.  But I do not understand from the correspondence in 2009 that Jim Kiu would oppose to the discharge of the charging order.

48.  This is not surprising.  In view of the previous correspondence with GH in 2006 and now NC’s letter of demand, the focus of SWLC in the subsequent letters to NC was basically to rebut Lam’s allegation that all the indebtedness owed to Jim Kiu have been repaid and to demand for settlement of the outstanding indebtedness.  SWLC also provided, this time to NC, the same quantification of the outstanding indebtedness in 17890/92 which they have already provided to GH in 2006.

49.  By the without prejudice letter dated 24 July 2009, SWLC indicated that Jim Kiu had no objection to Lam’s application.  The letter was apparently despatched on the same day.  But NC complained that that was a Friday and they had yet to receive such letter by the hearing before the Registrar on the following Monday.  Nevertheless, the transcript of that hearing recorded the parties’ indication to the Registrar from the outset that Jim Kiu would not oppose to Lam’s application.

50.  In view of the above discussion of the allegation regarding the oral agreement in 1992 raised during the latter half of that hearing by Mr Siu of SWLC, I do not find that such allegation actually altered the stance of Jim Kiu in this application.

51.  Could the hearing have been avoided?  I think not.  Neither Lam nor Jim Kiu yields to the other on the question of the costs of the application.  In fact both ask for costs on an indemnity basis against the other.

52.  The circumstances show that both parties have not been as sensible as they ought to have been in satisfactorily dealing with the charging order upon and since 1992.  In my view, neither of them should be entitled to the costs order being sought against the other.  It is therefore fair to exercise my discretion to make no order as to the costs of and incidental to Lam’s application to discharge and to vacate the registration of the charging order in 8133/92.

The 26/10/06 Affirmation in 17890/92 (DCMP 2091/09)

53.  The 26/10/06 Affirmation was delivered for registration as a lis pendens, which was the ex parte application by Jim Kiu for a charging order against Lam’s interest in the Property in respect of the indebtedness arising from the judgment debt in 17890/92.

54.  Section 19 of the Land Registration Ordinance, Cap.128 provides the court with a wide discretion to order vacation of lis pendens and to make order as to costs:

“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 of 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 make such other order as to such costs or any of them as to said court or judge may seem just.”    

      [emphasis added]

55.  Registration of the 26/10/06 Affirmation has been withheld.  No evidence has been adduced as to why that happened.  The document has since been placed under ‘Deeds Pending Registration’ at the Land Registry.  Nevertheless, the parties do not really dispute that section 19 applies: see Brightland Corporation Ltd v Bamhart Company Ltd HCA 1445 & 1540/2005 (10 April 2008) at para.8; Sun Ngai International Investment Ltd v Zhang Suhua [2009] 1 HKLRD 48 at para.7; Tai Yip Dyeing Factory Ltd v Kong Hoi Sang [2007] 1 HKLRD 608 at para.34.

56.  It was not seriously argued that the document is by nature not registrable.  Lam’s major contention is that the indebtedness arising from the judgment debt in 17890/92 was already settled in October 1992.

The indebtedness arising from the judgment debt in 17890/92

57.  It should be noted that 8133/92 and the bankruptcy proceedings as a result of that action were specifically captioned in the 10/10/92 Letter (above).  No reference whatsoever was made in that letter to 17890/92.

58.  Lam, through NC’s letter to Jim Ku dated 27 April 2009, alleged that the sums owed in both 8133/92 and 19780/92 had already been repaid.  This was met with SWLC’s denial on behalf of Jim Kiu.

59.  By letter dated 29 April 2009 to SWLC, NC expressed no idea about what outstanding indebtedness SWLC were referring to.  By letter dated 30 April 2009, SWLC replied to NC and explained the outstanding amount of HK$50,000 plus interest and costs.  This was actually the breakdown that SWLC already explained to GH in 2006.  As mentioned above, this was effectively the indebtedness in 17890/92.

60.  In their reply dated 30 April 2009, NC stated their client’s contention that all money had already been paid by agreement at the material time, though not the total judgment sums in the 2 actions.  On the same day, NC further wrote to SWLC and explained that it was the parties’ agreement to settle at a lesser sum.

61.  Besides the apparent change from the alleged repayment of both judgment sums to the alleged agreement to settle at a lesser sum, Lam’s allegations are at odd with her husband’s instruction to GH in 2006 that he would consider settling “the outstanding balance of the judgment debt” as mentioned above.

62.  Further, as Miss R Lam for Jim Kiu submitted, the alleged agreement to settle at lesser sum lacked accord and satisfaction and thus failing for want of consideration.  Lam’s allegation is therefore bad in law: see Foakes v Beer (1884) 9 App Cas 605; see also Lee Tak Wan v Chekiang First Bank Ltd HCSD 14/2000 (3 November 2000); Bank of China (Hong Kong) Limited v Cosnan Limited & Ors HCA 1600/2004 (11 August 2006).

63.  When he came to make his affirmation in July 2009 in support of Lam’s application, Lam’s husband further alleged that partial payment in the total sum of about HK$50,000 had already been paid to Jim Kiu prior to the commencement of 8133/92 and 17890/92.  The cashier order for the sum of HK$111,000 dated 10 October 1992 was made out to cover the total judgment debts of HK$150,000 in both 8133/92 and 17890/92 after taking into account the HK$50,000 already paid.  He and Lam has since believed that both actions have been settled.

64.  First, the allegation regarding partial payment of about HK$50,000 prior to the commencement of the 2 actions has never been foreshadowed in any documents or correspondence between the parties in 2006 or 2009.  There is also no documentary evidence of such payment.

65.  Secondly, the case according to this affirmation in July 2009 suggests that the judgment debts in both actions have been settled by full payment.  This does not sit well with the alleged agreement to settle at a lesser sum than the judgment amounts contained in NC’s last letter in April 2009.

66.  Thirdly, in any event, the alleged belief that both actions have been settled by such payment still does not sit well with the apparent acknowledgement of an unpaid outstanding balance of the judgment debts when Lam gave his instruction to GH in 2006.

67.  In my view, for the purpose of this application, there is sufficient basis to reject the allegation that the indebtedness arising from the judgment debt in 17890/92 in 1992 has already been settled in 1992 as alleged.

S.19 of Cap.128

68.  Miss C Lam for Lam made clear at the beginning of the hearing that she was prepared to argue that the 26/10/06 Affirmation ought to be withdrawn from the Land Registry, irrespective of the dispute as to whether the judgment debt in 17890/92 has been fully settled.

69.  Miss C Lam submitted that pursuant to section 19 of Cap.128, the litigation is not prosecuted bona fides in view of the excessive and unreasonable delay on the part of Jim Kiu in enforcing the judgment in 17890/92.  Alternatively there is other good cause for granting the order.

70.  Delay by a party in prosecuting proceedings which have been registered as a lis against property, if not explained, could amount to lack of bona fides and the court under section 19 could order the vacation of a lis on the grounds of dilatoriness in the prosecution of the action: see Tahir v Cheung Wai Bun Charles [1980] HKC 370.

71.  In the present case, the action has been prosecuted which resulted in the judgment.  Jim Kiu is being criticised for delay in enforcing the judgment.  In Re Ching Yue Chong (Deceased) [1997] 3 HKC 548, Le Pichon J (as she then was) expressly left open (at 559D) the question of whether the Tahir principle above applies to the enforcement of judgment.  Miss C Lam submitted that there is no logical reason why not.

72.  In the proceedings that have been registered as a lis, the parties’ rights are yet to be determined.  It is the plaintiff’s duty to prosecute the claim without inordinate delay.  Likewise, the defendant, whose property is encumbered by the registered lis, is not bound to sit back and wait for the plaintiff to proceed at his leisure: see Tahir (at 375D; 376A-C).

73.  However, by virtue of the judgment or order, whether obtained by default or after argument, the defendant becomes a judgment debtor.  It is primarily the duty of the judgment debtor to satisfy the judgment.  The judgment debtor cannot be heard to complain that the judgment creditor delays in enforcing the judgment, whilst at the same time neglecting or refusing to satisfy the judgment debt.  This is so even though interest on the judgment debt is accruing.

74.  The fact that no step has been taken to enforce the judgment in 17890/92 since 1992 until 2006 is undeniable.  By his affirmation, Jim Kiu explained that he did not consider it commercially feasible to pursue Lam.  In view of the above discussion, I do not think the Tahir principles apply or, if applied, could lead to a conclusion that there is lack of bona fides in Jim Kiu.

75.  This is not to say that the lapse of 14 years is irrelevant.  By the filing 26/10/06 Affirmation, Jim Kiu did take step to enforce the judgment in 17890/92.  Presumably, the previous concern about commercial feasibility no longer prevented him from taking such a step.  Jim Kiu further sought to assert his right to the Property by the lis.  In the circumstances, I see no reason why the Tahir principles should not apply in respect of his application once filed.  The fact was that Jim Kiu has let the matter go dormant again.  This is where the lapse of the previous 14 years remains a relevant consideration.

76.  Even assuming that the good faith of Jim Kiu is not thus implicated, I think there are good causes shown for the purpose of section 19 of Cap.128.

77.  Since the Civil Justice Reform in April 2009, the court has a positive duty to ensure that a case is dealt with as expeditiously as is reasonably practicable: see O.1A, r.1(b) of the Rules of the District Court.  Both counsel agreed that the statutory limitation period has no application to the procedural machinery in enforcing a judgment by way of obtaining a charging order: see Hong Kong Civil Procedure 2010 at 50/9A/15.  Miss C Lam pointed out that an application for a charging order to enforce a judgment could not be struck out for want of prosecution.  All these add to the expectation that the applicant for a charging order must proceed with his application reasonably expeditiously.

78.  Miss R Lam pointed out that the registration of a lis pendens is effective for 5 years from the date of registration and may be re-registered if do desired: see section 17 of Cap.128.  But in my view, this does not therefore give the applicant the right to take the time for no good reason.

79.  In his affirmation, Mr Ma of SWLC explained that after the 26/10/06 Affirmation was filed, there was further correspondence between them and the court.  Due to the loss of the court file in 17890/92, the court directed by letter dated 20 November 2006 that the application for the charging order should be made by way of miscellaneous proceedings.

80.  Clearly Jim Kiu has yet to obtain the charging order.  If Jim Kiu is to apply for the order now, the court probably would not entertain the application as proceedings in 17890/92.  Jim Kiu also could not ride on Lam’s application in DCMP 2091/92 for the purpose of putting forward his application for a charging order.  If Jim Kiu has to apply for the charging order by originating proceedings, the basis for the 26/10/92 Affirmation in 17890/92 to remain in the Land Registry becomes questionable.

81.  Considering all the circumstances, I would exercise my discretion to order that the 26/10/06 Affirmation be withdrawn from the ‘Deeds Pending Registration’ at the Lands Registry.

82.  As to the costs, section 19 of Cap.128 confers on the court wide discretion to make any order as the court may seem just.  Having succeeded in her application, Lam is prima facie entitled to costs.  However, in view of this court’s unfavourable view towards the major contention of Lam in this application, I am of the view that the appropriate costs order should reflect that.

Order

83.  In respect of the costs of and occasioned by Lam’s summons to discharge and to vacate the registration of the charging order in 8133/92, I make no order.

84.  In respect of DCMP 2091/09, I give an order that the 26/10/06 Affirmation be withdrawn from ‘Deeds Pending Registration’ in the Land Registry.  For reasons explained above, I order that Jim Kiu shall pay 60% of Lam’s costs of and occasioned by her application.  Costs shall be taxed, if not agreed, with certificate for counsel.