THE LEIGHTON PARK TRUST v. HUYNH FAI

DCMP 1610 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1610 OF 2006

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JUDGMENT

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1.  This is an appeal against an Order made by Master Lai on 12 January 2007 (“the Order”). Save for what is stated herein, I do not see the need to go into the finer details of the course of proceedings or the terms of the Order.

2.  In September 2004, a Writ endorsed with Statement of Claim was issued against the Defendant and his wife (“the Wife”). The claim was for unpaid school fees relating to education of their 2 children in the United Kingdom. The claim was in relation to school-terms in 2002 and 2003.

3.  On 17 January 2005, the Plaintiff obtained summary judgment against the Defendant and the Wife.

4.  A Charging Order absolute was made on 8 June 2005 against property registered in the name of the Defendant (“the Property”). By the Order, Master Lai ordered sale of the Property unless payment was made within a certain period.

5.  On 29 January 2007, I dismissed the appeal with costs to the Plaintiff. I now state the reasons for my decision.

6.  The main complaints of the Defendant can be summarized as follows:

a)	the Plaintiff’s original claim is unclear on quantum outstanding;
b)	the Plaintiff has failed or refused to render proper accounts;
c)	certain payments have been made in satisfaction of the Plaintiff’s claim (hence, the Plaintiff is not entitled to summary judgment or, at least, not for the sum claimed);
d)	some of the money used to purchase the Property was borrowed by the Wife from her father and
e)	the children’s personal effects have been detained or even appropriated by the school.

7.  Complaints a) and b) are but attempts to attack the summary judgment entered in January 2005. There has never been an appeal against that judgment. I note in passing that, unless the Court orders otherwise, the notice of appeal must be issued within 14 days after the judgment (Rules of the District Court, Order 58, Rule 1(3)). As far as I am concerned, that judgment stands. The Defendant cannot be heard to attack its validity or correctness. Complaints a) and b) are irrelevant to the present appeal.

8.  For the reasons just stated, complaint c) also cannot be entertained. Mr. Pierrepont, solicitor for the Plaintiff, explained that the amount of alleged payment was just over ₤11,000. He said that although he was taking further instructions on this, he thought the payment was in relation to school-terms prior to those relevant to the claim. Mr. Pierrepont said that, if appropriate, the Defendant and the Wife will be given credit for such payment. I note that even if such credit is given, there will still be an outstanding sum with interest accruing thereon. I find no merits in complaint c).

9.  Assuming complaint d) is an assertion that the Wife is the true beneficial owner of the Property, I see no reason to set aside the Order. Summary judgment was entered against the Defendant and the Wife jointly and severally. I see no basis for the Wife to complain about sale of the Property in satisfaction of that judgment. On the affidavit evidence in the Court file, it is far fetched to suggest that the Property is held in trust for the Wife’s father.

10.  Complaint e) may indicate a potential claim against the school. It cannot be reason for allowing the present appeal.

11.  In the course of submission, the Defendant also mentioned such matters as his ignorance of the law, his not being able to afford legal advice or representation and that he spends a lot of time in Mainland China. I will simply say that all these matters do not avail the Defendant.

12.  I see no reason why costs should not follow the event. I thus ordered the Defendant to pay the Plaintiff’s costs arising out of and incidental to this appeal.