YAN MEI and YAN DONG the Joint and Several Administrators of the Estate of FONG LAP CHUNG GEORGE, Deceased AND ANOTHER v. FONG LAP SHAN

HCA 1562/2022 and HCA 104/2023

(Consolidated)

[2025] HKCFI 5287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1562 OF 2022

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DECISION

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INTRODUCTION

1.  Before me is a summons dated 10 September 2025 (“Unless Order Summons”) issued by the Defendant to, inter alia, enforce by way of an unless order an interim payment order dated 29 November 2024 (“IPO”) whereby Master Teresa Wu ordered the 1^st Plaintiff to make certain interim payments to the Defendant.

2.  More specifically, the IPO ordered the 1^st Plaintiff to pay to the Defendant (in respect of the use and occupation by the 1^st Plaintiff and/or the 2^nd Plaintiff of a property defined in the pleadings as “House 10”):

2.1.  HK$95,983 forthwith for the period of 1 February 2017 and 30 June 2024 to reimburse the Defendant for the mortgage repayments he had paid for House 10.

2.2.  A monthly sum of HK$45,000 after 30 June 2024, 3 days in advance of the first day of each month, and until final judgment or such order from the Court for the Defendant to effect monthly mortgage repayments of House 10.

2.3.  HK$98,700 forthwith for the period of the first quarter of 2017 and the third quarter of 2023 to reimburse the Defendant for the rates and Government rent paid for House 10.

2.4.  The rates and Government rent of House 10 after the first quarter of 2024 as determined by the Rating and Valuation Department (“RVD”) 14 days before the due date and until final judgment herein or such further order of the Court for the Defendant to effect quarterly payment to the RVD, or where appropriate, the Plaintiffs may, as directed by the Defendant, make direct payments to the RVD.

3.  In brief, the Unless Order Summons, led by the 6^th Affirmation of Kwok Hong Yee Jesse, asks for an order that unless the Plaintiffs comply with the IPO by paying the outstanding payments with interest in full by 4 pm on 26 September 2025, the Plaintiffs’ claim be dismissed and judgment be entered on the Defendant’s counterclaim. 

4.  The Unless Order Summons first came before another Judge on 15 September 2025 who gave leave to the Plaintiffs to file evidence to oppose by 4 pm on 19 September 2025, and reserved costs of the hearing. 

5.  On 19 September 2025, the Plaintiffs filed the 2^nd Affidavit of Ng Siu Ling Rowena exhibiting a signed copy of the Affirmation of Yan Dong, one of the 1^st Plaintiff, which he apparently signed in the Mainland.  On 22 September 2025, Yan Dong signed the same affirmation before the PRC Notarial Officer.

6.  On 26 September 2025, the Defendants filed the 7^th Affirmation of Kwok Hong Yee Jesse exhibiting a signed copy of the Affirmation of Fong Lap Shan dated 25 September 2025 apparently signed in New York.

7.  The parties had also filed skeleton submissions.  The Plaintiffs’ skeleton submissions came on 11 September 2025 whereas the Defendant filed 2 skeleton submissions on 12 and 26 September 2025.

8.  On 27 October 2025, I directed the Unless Order Summons be relisted before me for substantive hearing on 31 October 2025.  The parties were also directed to file updated skeleton submissions to supplement their earlier skeleton submissions, and they have done so.

9.  I also directed that no further evidence is permitted without leave of the Court and that any application for retrospective leave to file evidence would be dealt with at the hearing.  At the beginning of the hearing, I gave retrospective leave to the parties to file and serve (a) the Affirmation of Yan Dong dated 22 September 2025 (b) the 7^th Affirmation of Kwok Hong Yee Jesse dated 26 September 2025 and (c) the Affirmation of Fong Lap Shan dated 25 September 2025.

DISPOSITION

10.  It appears that the 1^st Plaintiff did initially comply with the IPO, but then failed to make payment as ordered.  The result is that the total outstanding and unpaid sum as of today is HK$460,538.  That figure is not in dispute.

11.  As far as I see it, the 1^st Plaintiff has no good answer for not paying. 

12.  Ms Rowena Ng for the 1^st Plaintiff takes two main points.  First, she argues that the provisions of the Rules of the High Court cited in the margin note of the Unless Order Summons are wrong in that they do not concern unless orders.  Second, she argues that it would be unjust and disproportionate to make an unless order with the effect of dismissing the Plaintiffs’ claim for failure to pay the outstanding sum.

13.  The first submission is plainly unmeritorious.  It is trite that citing the wrong order or rule in the margin note of a summons is not fatal.  A party is not bound to state under which order or rule he proposes to move.  It frequently happens that parties move under a particular rule and then, when they find it is a wrong one, turn to another and an order is made: Premier Fashion Wears Ltd v Chow Cheuk Man [1994] 1 HKLR 377 at 383 (Godfrey JA).

14.  There is no doubt the Court is empowered to grant an unless order in an appropriate case. 

15.  That said, it is important to bear in mind that the Court of Appeal has explained in Bruce James Stinson v Gu Ming Gao [2018] HKCA 10 §58 (Kwan JA, as she then was), that the purpose of an unless order is not to punish conduct but to secure a fair trial in accordance with the due process of law.  The draconian sanction of striking out a litigant’s claim or defence in its entirety should not be the default consequence of an unless order as it would effectively deprive the litigant of its substantive rights on account of a procedural fault.  A “more calibrated use” of such orders should be adopted following these guidelines:

15.1.  Unless orders stipulating the consequence of dismissal should not be given as a matter of course but as a last resort when the defaulter’s conduct is inexcusable.

15.2.  The conditions appended to unless orders should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance.

15.3.  Other means of penalizing contumelious or persistent breaches are available, including but not limited to (a) awarding costs on an indemnity basis (b) order the payment of the plaintiff’s claim or part thereof into court where the defaulting party is a defendant (c) striking out the relevant portions of the defaulting party’s statement of claim or defence rather than the whole (d) barring the defaulting party from adducing certain classes of evidence or calling related witnesses and (e) raising adverse inferences against the defaulting party at trial.

16.  That case was about default of making discovery.  Be that as it may, I consider that the Court of Appeal’s guidance should apply mutatis mutandis to the present case.  In my view, ordinarily a party should not as a matter of course enforce an interim payment order via an unless order with striking out of the other side’s claim or defence in its entirety (as the case may be) as the consequence of default. Generally, such an unless order should be applied for as a means to enforce an interim payment order only as a last resort when the circumstances so justify.

17.  Indeed, our civil procedures provide for other means of enforcement of an order for the payment of money such as a writ of fieri facias or where a person breaches an order requiring him or her to make a payment of money within a specified time, an order of committal: Rules of the High Court O.45 r.1(1)(a) & (e), O.45 r.5. 

18.  Where an order for the payment of money does not specify a time within which that act is to be done, the Court is empowered under O.45 r.6(2) to make a subsequent order requiring that act to be done within such time after service of that order, or such other time, as may be specified therein.  Any breach of that subsequent order may be enforced by an order of committal.

19.  I am reinforced in my view by Baker & Mckenzie (A Firm) v The Grande Holdings Limited (unreported, CACV 102/2011, 14 December 2011).  In that case (see §§1-3, 6, 9, 17), the defendants appealed against, inter alia, the order of the learned judge below ordering them to make interim payment of 50% of the plaintiff’s profit costs. There was no stay and the plaintiff applied to the Court of Appeal for an order that unless the interim payments were made by a certain date, the appeal be struck out.  Yuen JA dismissed the application and noted that the plaintiff had not made any attempts to enforce the order by other means.  Instead, the plaintiff tried to strike out the appeal when the judge below had noted the defendants have reasonable grounds.  Hence, the effect of the proposed unless order would be to stifle a reasonable appeal when other less draconian methods of enforcement had not been attempted.  While each case turns on its own facts, I consider the sentiments expressed to be germane for present purposes.

20.  In my view, the circumstances of the present case do not merit the Court ordering the 1^st Plaintiff to pay the outstanding sum on an unless order basis at this stage.  The Defendant has not attempted other less draconian enforcement methods.  Mr Andrew H.P. Lau explains that the Defendant did not take out any enforcement action earlier because in 2 previous interlocutory applications, the Court made certain costs orders.  Those orders are not before me (nor are they discussed in Mr Lau’s skeletons), so I make no comment on the validity of the point.

21.  Mr Lau further says the Defendant had written to the other side to urge them to make payment, only to be met with letters to the effect that the 1^st Plaintiff had financial difficulties but would pay soon, and urged the Defendant not to take action. Those correspondence was in the earlier part of 2025.  It is for the Defendant to decide what should be a proper response.  Mr Lau argues other enforcement orders would be futile.  Counsel argues that unless order is the last resort. Other methods of enforcement would not be quick enough to bring about payment by the 1^st Plaintiff to stave off the bank’s action for default in mortgage repayment.  But with respect, any suggestion that there is urgency because of the bank’s action seems to me to be a result of the Defendant not having applied for enforcement earlier.  As I have explained, it is in my view premature for the Defendant to have applied for an unless order without first resorting to other less draconian means available under our civil procedures.

22.  Having said that, the 1^st Plaintiff has no excuse not to comply with the IPO either.  Ms Rowena Ng submits that the 1^st Plaintiff is experiencing financial difficulties.  But that is plainly not a reason not to comply with the IPO.  She claims that her client could pay the outstanding sum of HK$460,538 within 3 months.  But there is no basis for that claim.  Ms Ng tells me her client would try to borrow the funds from others.  But there is no explanation why her client could not have done so earlier. 

23.  The Unless Order Summons has been served on the Plaintiffs’ solicitors on record so the 1^st Plaintiff is clearly aware that the Defendant is applying for an order with the effect that the 1^st Plaintiff comply with the IPO order by paying the outstanding sum with interest by a specified date.

24.  Considering all the relevant circumstances in the round, I make an order that the 1^st Plaintiff do pay the outstanding sum of HK$460,538 within 21 days after service of the order.

25.  I give the parties liberty to apply.

26.  I make no order as to costs for the Unless Order Summons.  Whilst I consider it was premature to apply for an unless order in this case, what cannot be disputed is that the 1^st Plaintiff has repeatedly breached the IPO.  The 1^st Plaintiff’s conduct must not be condoned.

27.  I also dismiss the Plaintiffs’ summons dated 27 October 2025 to file a further affirmation with no order as to costs.  First, before the summons was issued, I had directed that no further evidence is permitted without leave of the Court.  Second, having considered the further affirmation on a de bene esse basis, I do not consider it is material to the fair disposal of the Unless Order Summons.  Third, the Defendant (and not the 1^st Plaintiff) should have the last word on the Unless Order Summons.