TUNG TAT CONSTRUCTION LTD v. EAGLE LUCK (HONG KONG) LTD AND OTHERS

DCCJ 5616/2020

[2020] HKDC 1067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5616 OF 2020

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DECISION

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A.   INTRODUCTION

1.  This is an application by the 8^th defendant by way of Summons dated 2 November 2020 (“the Summons”) for an order that the Writ of Summons in this Action (with Memorial No 20102001910029), which is pending registration against the property known as Section B of Lot No 105 in DD 292 (“the Subject Lot”), be withdrawn or vacated.

2.  In support of the application, the 8^th defendant has filed the Affirmation of Lai Kam Fong, and subsequently the Supplemental Affirmation of Lai Kam Fong.  The 8^th defendant contends, inter alia, that the present action does not relate to land or any interest in or charge on land and is not registrable under the Land Registration Ordinance (Cap 128) (“the Ordinance”).

3.  The application was heard before me today.  The plaintiff was represented by Mr Cheng of the plaintiff’s solicitors.  He indicated to me that the plaintiff now agrees to withdraw the pending registration.  Accordingly, Paragraph 1 of the Summons is no longer in dispute.  The only dispute before me is whether the 8^th defendant should be entitled to the costs of the application on indemnity basis.

B.   THE PLAINTIFF’S CLAIMS AGAINST THE 8^th DEFENDANT

4.  It is trite law that the court has inherent jurisdiction to vacate a non-registrable document, including a lis pendens, from the “pending for registration” section of the Land Registry, and to deal with the registrability of such a document: Shineland Corp Ltd v Gladford Ltd HCMP 1972/2017, 30 November 2017, at §44 (per Recorder Stewart Wong SC).   

5.  In the present case, the Endorsement of Claim contains 5 paragraphs.  Paragraph 1(g) points out that the 8^th defendant is the owner of the Subject Lot.  The rest of Paragraph 1 does not concern the 8^th defendant.

6.  Paragraph 2 does not relate to the 8^th defendant.

7.  Paragraph 3 sets out, inter alia, the year in which the Subject Lot was assigned to the 8^th defendant.

8.  Paragraph 4 states that the 1^st defendant is and was at all material times authorized by the rest of the defendants (including the 8^th defendant) to act on their behalf in respect of many matters of the lots (including the Subject Lot), including but not limited to entering into (i) mortgages and/or legal charges with various financial companies and (ii) various construction agreements via an engineer, namely PGS Limited with the plaintiff.

9.  Paragraph 5 states as follows:-

“The Plaintiff claims against the Defendants for the outstanding sum of HK$2,340,961.47 due and owing by the Defendants for the construction works having been carried out by the Plaintiff on the Subject Lots at the request of the Defendants, together with interest and the costs of this action.”

10.  It is plain from the Endorsement of Claim that if there are any valid claims against the 8^th defendant, the claims would be in relation to the outstanding payment allegedly due and owing by the 8^th defendant for the construction work having allegedly been carried out by the plaintiff on the Subject Lot.  This claim has nothing to do with the Subject Lot itself.  Accordingly, the Writ of Summons is clearly not registrable as a lis pendens.

11.  I echo what Deputy High Court Judge Kwok SC said in Shing Shu Lung v Shing Kam Chuen HCA 2067/2013, 7 July 2017. It is an abuse of the registration system to register or try to register the Writ of Summons when it should be clear to any competent solicitors that the same is not registrable.  I note that in Shing Shu Lung v Shing Kam Chuen, Deputy High Court Judge Kwok SC also requested the handling solicitor to show cause as to why he should not be personally liable to pay costs of the vacation of registration. 

12.  In the present case, I note that the 8^th defendant’s solicitors had written to the plaintiff’s solicitors on 23 October 2020, and asked, inter alia, how the plaintiff’s claims in this action against the 8^th defendant affect the Subject Lot.  The plaintiff has not provided any response until, I was told, around 6 pm yesterday.  As a result, the 8^th defendant was forced to take out the present application.

13.  In the light of the above, in particular to mark the court’s strong disapproval of the abuse, I make an order that the costs of the application be paid by the plaintiff to the 8^th defendant on indemnity basis, to be taxed if not agreed.