YU JING JENN v. WONG PE WUN AND OTHERS

1986, No. P2

IN THE HIGH COURT OF JUSTICE

HONG KONG

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JUDGMENT

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1. This is an application by the 1st defendant for an order to vacate the registration of the writ of summons issued in this action that was registered as a lis pendens on the 2nd October 1986 against the property 9A Broom Road, 3rd floor, Hong Kong together with two carparking spaces (the property).

2. The 1st defendant is the widow and administratrix of the estate of Yu Kee Sai (the deceased) who died intestate on the 26th August 1978. Letters of Administration to the estate were granted to the 1st defendant on the 8th February 1980. The plaintiff is the eldest son of the deceased and is entitled to a 1/12th share in the residuary estate under the Intestates Estates Ordinance (Cap. 73). Two other sons the 2nd and 3rd defendants are also beneficiaries of the estate. The writ was issued on the 1st May 1986. By the amended statement of claim, the plaintiff alleges that the 1st defendant is unfit to continue to act as administratrix on the grounds that she has failed to carry out her duties properly. There are also allegations of fraud. Under the prayer for relief, the plaintiff seeks, inter alia, an account and an order that the estate be administered by the Court.

3. In her capacity as administratrix, the 1st defendant entered into a sale and purchase agreement in respect of the property with Madam Chan Ko Yuk Kwei on the 3rd October 1986. On the 7th October 1986, the plaintiff obtained an ex parte injunction against the 1st defendant restraining her from disposing of the property. The order was registered as a lis pendens against the property on the 8th October 1986. The injunction was discharged on the hearing of the inter partes summons on the 28th October 1986 by Liu, J. whilst the registration of the order as a lis pendens was vacated by a consent order made on the 18th November 1986.

4. A lis pendens is described in The Law of Real Property 5th Edition (1984) by Megarry and Wade P.172 as any action or proceeding pending in Court relating to land or any interest in or charge on land. Although the words have been given a wide meaning, the claim must affect the title to the land by asserting some claim to it or some proprietary right over it. However, a lis pendens does not extend to a mere claim to prevent the land from being sold.

5. No allegations of impropriety have been made against the prospective purchaser Madam Chan nor has she been made a party to the action. Further, there is no reference to the property in the amended statement of claim. The result of the registration is that Madam Chan cannot obtain a clear title to the property. The registration accordingly, constitutes a fetter on the 1st defendant's right to sell the property as the trustee of the deceased's estate. The 1st defendant therefore as a person interested in the property under s.20 of the Land Registration Ordinance (Cap. 128) seeks to vacate the registration under s.19 of the Ordinance on the ground that good cause has been shown. It is not in dispute that the 1st defendant as the trustee of the deceased's estate is a person interested under s.20.

6. The registration of the writ as a lis pendens amounts to an attempt by the plaintiff to prevent the 1st defendant from selling the property for there is no claim to a substantive right to the property adverse to the owner. The only lites pendentes which are registrable are those which affect land, see Thian's Plastics Industrial Co. Ltd. & Others (No. 2) v. Tin's chemical Industrial Co. Ltd. and another⁽¹⁾. In this case, the action does not consist of a claim to land nor to an interest in land, but relates to a claim for the administration of the deceased's estate by the Court instead of by the 1st defendant. I am quite satisfied, upon the evidence that the lis pendens was wrongly registered. Accordingly there will be an order to vacate the registration with costs to the 1st defendant.

(1) (1971) H.K.L.R. 249