CHOI CHONG MAN ROY v. HO SUK YEE JANICE

DCMP 3037/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3037 OF 2015

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DECISION

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1.  By way of originating summons dated 16 November 2015, the plaintiff’s claim was for the following:-

(1) A Declaration that the property situated at Flat A on 18^th Floor of Block G (Sun Ning Building) Shatin Centre, Nos 2-16 Wang Pok Street, Shatin, New Territories (Land Registry Property Reference Number A9687818) (“the Property”) is held by the defendant on trust for the plaintiff absolutely;

(2) An Order that the defendant do execute and deliver a conveyance and assignment of the Property to the plaintiff absolutely, or alternatively, that all rights, title and interest of and in the Property be vested in the plaintiff absolutely;

(3) An Order that the defendant do refund all the rental income arising from the Property to the plaintiff absolutely;

(4) further or other relief; and

(5) costs.

2.  The defendant took out a summons on 11 January 2016 to strike out the originating summons on the ground that it is frivolous, vexatious and abuse of process.  Ms Chan appeared in court on behalf of the defendant.  The plaintiff has been acting in person since 30 December 2016 and was not in court.  Notice of hearing was dully given to the plaintiff and the hearing was to proceed in his absence.

3.  As a matter of background, the plaintiff was the husband and the defendant was his wife in the marriage solemnized on 31 May 1992 in Hong Kong, and there is one child in this marriage.  When the relationship turned sour, divorce proceedings were commenced in the Family Court (the “Divorce Proceedings”).  On the First Appointment Hearing on 11 September 2013 both the plaintiff and the defendant agreed to the terms of settlement for ancillary relief.  The learned judge ordered on 11 September 2013 (“Consent Order”) that:-

“經聆聽呈請人及答辯人下親自陳述：

經答辯人承諾會繼續支付沙田沙田中心新寧大廈十八樓A室物業現存尚欠的按揭供款直至全部清還為止及該物業的管理費、差餉和地租；

經答辯人承諾會在出售沙田大圍碧田街18號恆峰花園一座15樓B室的聯名物業後所得的淨收益中向呈請人支付$1,500,000港元的整筆款額；

現特頒令：

1. 答辯人須付呈請人每月$20,000港元作為贍養費，直至任何一方身故或呈請人再婚之日，兩者以較早出現為準。首次繳款日期為2013年10月20日，之後每月20號為一期並存入呈請人的銀行戶口。

2. 答辯人須付呈請人每月10,000港元作為家庭子女蔡浩然的贍養費，直至子女年滿18歲或完成全日制教育為止。首次付款日期為2013年10月20日，每月20號為一期並存入呈請人銀行戶口。

3. 在絕對命令作出時答辯人須付呈請人$500,000港元的整筆付款。

4. 在絕對命令作出後6個月內呈請人及答辯人須將沙田大圍碧田街18號恆峰花園一座15樓B室的聯名物業以巿值出售，而岀售物業相關費用則從售樓得益中扣除。

5. 不作訟費命令。

法官又聲明，法庭信納上述家庭子女是香港法例第192章《婚姻法律程序與財產條例》第18條適用的唯一家庭子女；上述家庭子女的福利已有所安排，而此等安排乃是令人滿意的安排，不然便是在目前情況下可作岀的最佳安排。

日期：2013年9月11日

司法常務官”

4.  Apparently the plaintiff and defendant duly complied with the Consent Order uneventfully.  Eventually, the Order Absolute was issued on 15 October 2013.  Until October 2014, the defendant issued a judgment summons against the plaintiff for the non-payment of maintenance and a summons for the return of rent of the Property which have been wrongfully pocketed by the plaintiff.  The plaintiff filed a cross application by way of summons on 22 July 2015 seeking to sell the Property. Further, the plaintiff commenced this action for the relief stated in §1 hereof.

5.  On 19 November 2015, the defendant applied to the Family Court to amend the Consent Order.  Eventually, the Family Court allowed the amendments to add a recital (“Amended Order”) stating that:-

“經呈請人及答辯人同意沙田沙田中心新寧大廈十八樓Ａ室物業業權全歸呈請人”

6.  Not satisfied with the Amended Order, the plaintiff applied to the High Court for leave to appeal to the Court of Appeal against the Amended Order, which was refused.  The plaintiff applied to the Court of Appeal for leave to appeal against the Deputy Judge’s Amended Order (the “Leave Proceedings”).  In the judgment dated 15 August 2016, after going through the entire history of the proceedings in the Family Court, the Court of Appeal held that the Deputy Judge was entitled to hold that there was no ambiguities in his Consent Order that the Property did not have any need to make any change to the title, nor was there a need to make provision for the title of the Property.  No transfer of interest in the Property was involved since the defendant was the registered owner of the Property and there was no issue at the hearing that the beneficial interest in the Property did not also reside with the defendant.

7.  In conclusion the Court of Appeal came to the view that none of the intended grounds of appeal enjoyed reasonable prospects of success.  There were no other reasons in the interest of justice for the Court of Appeal to be heard.  Leave to appeal was refused, and the plaintiff’s summons for leave to appeal was dismissed with costs.  The Court of Appeal also made a direction pursuant to Order 59 rule 2A(8) that no party may request a reconsideration of their determination under rule 2A(7) at an oral hearing inter partes (“Direction”).

8.  After the judgment in the Leave Proceedings was handed down, the defendant applied to restore this action including the hearing of the defendant’s summons for striking out.  Ms Chan clarified that she will proceed on the basis that the present action should be struck out on the only ground of an abuse of process, and she no longer relied on other grounds mentioned in §2 hereof.  She also helpfully pointed out that Order 18 rule 19(3) of the Rules of District Court, Cap.336H provides that:-

“this rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.”

9.  From the history of this matter and also the proceedings in both the Divorce Proceedings and the Leave Proceedings (collectively “Earlier Proceedings”), it is observed that:-

(1) Prior to the commencement of this action on 16 November 2015, the plaintiff was not yet able to obtain an Order for sale of the Property in his favour in the Family Court (which he never did).

(2) On 16 November 2015, and before any clarification was obtained from the Family Court, the plaintiff commenced these proceedings, seeking orders and declarations under §1 above.

(3) On 25 November 2015 the Family Court granted the Amended Order by which a recital was added to remove any doubt that the legal and beneficial interests of the Property belonged to the defendant.

(4) On 15 August 2016, the Court of Appeal’s dismissal of the plaintiff’s application for leave to appeal, together with the Direction have completely dealt with the subject matter in this action once and for all.  The plaintiff’s claim over his purported rights on the Property in this action could no longer be sustainable as all of those arguments were rejected by the Court of Appeal.

10.  The subject matter of dispute in this action, namely, whether the plaintiff had the beneficial interest of the Property as the defendant held the Property on trust for him, should have been dealt with in the Earlier Proceedings.  There is no reason why the plaintiff could not await the outcome of the Earlier Proceedings before he chose to commence the present action.

11.  Ms Chan submitted that the doctrine of res judicata is applicable in this case.  Res judicata was explained in 覃美金 v HSBC International Trustee Limited and others HCA 510/2013.  At §§30-32 Hon To J stated that:-

“30. There are two aspects under this doctrine. In the narrower sense, the term includes two species: cause of action estoppel and issue estoppel. The first species prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined in a previous judgment. See Thoday v Thoday. A cause of action estoppel can be seen as an estoppel on all the issues which formed conditions of the conclusion on the cause of action. Issue estoppel similarly prevents a party asserting or denying, as against the other party, an issue which has been determined in a previous judgment.

31. In the wider sense of “Henderson v Henderson sense”, it means “where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.” See Henderson v Henderson. This estoppel is founded on abuse of process of the court.

32. To give rise to an estoppel, the earlier decision must satisfy the following requirements; (i) it must be judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final and (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies or the earlier decision in rem.  See Spencer Bower & Handley Res Judicata.”

12.  In Greenhalgh v Mallard [1947] 2 All ER 255, at 257 Somervell L.J. explained that res judicata is not confined to issues which the court was actually asked to decide in the original litigation, it also covers issues or facts which are so clearly part of the subject-matter of the original litigation and so clearly could have been raised them then that it would be an abuse of process to allow new proceedings to be started in respect of them.

13.  As explained in §9 above, after the Court of Appeal decision was handed down, the plaintiff would have no prospects of success in this action.

14.  In the circumstances, I am satisfied that an order should be made in terms of the defendant’s summons in that the originating summons dated 16 November 2015 be struck out on the ground of an abuse of process.

15.  The defendant claims costs on an indemnity basis.  Ms Chan refers me to two letters.  One was from the defendant’s solicitors of 19 November 2015 sent to the plaintiff’s solicitors three days after the issuance of this action, stating that this action was absolutely unnecessary, was a duplication and was abusive to the court process.  Notice was also given that application to court for costs on an indemnity basis would be made if the action was not withdrawn within 3 days.

16.  The plaintiff’s then solicitors replied in their letter of 4 January 2016, categorically denied that this action was unnecessary, was a duplication and was abusive to the court process, and the plaintiff would not withdraw this action.

17.  When this action was commenced, the outcome as to the amendments to the Consent Order in the Divorce Proceedings was not known; and the Leave Proceedings was not yet commenced.

18.  Further, even if the plaintiff might have been eager to take his chancethat the outcome of the Court of Appeal might be in his favour and therefore commenced this action, the plaintiff should have realised that there is absolutely no hope to advance his case further in this action after the judgment in the Leave Proceedings was handed down by the Court of Appeal.  The plaintiff should have been advised on costs consequence as he was legally represented at that time.  He filed a Notice to Act in Person in this action on 31 December 2016.  Then he defaulted all of the subsequent court appearances.  The plaintiff did nothing to pursue his arguments on his purported interest in the Property in this hearing, and some of the court’s time could have been saved.  However, some may suggest that more costs could have been saved if the plaintiff simply discontinues this action which the plaintiff failed to do.

19.  In Choy Yee Chun (the representative of the estate of Chan Pui Yiu) v Bond Star Development Limited [1997] HKLRD 1327, the Court of Appeal cited the following passage from the dicta of Godfrey J. (as he then was) in Overseas Trust Bank Ltd. v Coopers & Lybrand (a firm) and Others [1991] 1 HKLR 177 at 182-183:-

“...... a case in which the successful party has demonstrated that the proceedings were initiated or prosecuted by the unsuccessful party in a manner which constitutes that party’s proceedings an abuse of process of the court might well be a candidate for an award of taxation of costs on an indemnity basis. A taxation of the successful party’s costs on an indemnity basis could properly be ordered, in my opinion, where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s costs on the indemnity basis.”

20.  The above oft-quoted passage was obviously obiter dicta, but it must have been given weight it deserves especially it has been approved by the Court of Appeal.

21.  Taking a broad brush approach, the proper order on costs would be that there be a costs order nisi that the defendant’s costs of this action including all costs reserved be paid by the plaintiff on an indemnity basis with certificate for counsel, to be taxed if not agreed, which shall become absolute if there is no application to vary the same within 14 days. 

22.  Lastly, I thank Ms Chan for her assistance.