TOTAL EXPRESS CAPITAL STRATEGY LTD v. YEUNG KA YEE CARRIE AND OTHERS

HCMP 1984/2024

[2026] HKCFI 3550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1984 OF 2024

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DECISION

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1.  The background relating to this mortgage action is set out in my judgment dated 11 March 2026 ([2026] HKCFI 1595) (the “Judgment”)^[1].

2.  For the reasons set out in the said Judgment, I allowed the Plaintiff’s claims in these proceedings.  I entered monetary judgment against the 1^st Defendant.  I ordered that vacant possession of the Property be delivered to the Plaintiff.  I also ordered that the Property be sold pursuant to the provisions under the Partition Ordinance (Cap 352).

3.  On 5 May 2026, the 3^rd Defendant, who did not attend the substantive hearing on 11 March 2026, took out a summons seeking (i) to set aside the order under my Judgment (the “Order”) insofar as the same concerns the 3^rd Defendant; and (ii) stay of execution of the Order.

4.  The 3^rd Defendant alleged that before the Order was served on him, he had not been aware of the present proceedings, and no notice was received at all.

5.  For the following reasons, the 3^rd Defendant’s allegation is incredible:-

(1)     As elaborated in paragraph 12 of the 4^th affirmation dated 27 May 2026 made by Ms Leung Hoi Ki (who was a manager working for Plaintiff):-

(a)     The documents relating to the present proceedings (including the originating summons, notices of appointments, and affirmations) were served at the Property by inserting the same into its letter box, and none of the documents had been returned.

(b)     Furthermore, the notices to occupants were posted on the main entrance at the Property on 15 July 2025, 13 August 2025, and 3 November 2025.

(2)     In the circumstances, it was inexplicable as to why whilst the ELPN’s letter dated 24 March 2026 serving the Order would be brought to the 3^rd Defendant’s attention, all the previous court documents in these proceedings that were served by ELPN would escape the 3^rd Defendant’s attention.  This was inherently improbable.

(3)     In this connection, whilst the 3^rd Defendant admitted that he had been living in the Property, he alleged that he was often on business trip in the Mainland.  This bare assertion was not borne out by any documentary evidence.  For reasons best known to himself, the 3^rd Defendant had chosen not to produce his immigration records to substantiate his allegation that he was often out of town.

(4)     More importantly, at the substantive hearing that took place on 11 March 2026, the 1^st Defendant (who is the 3^rd Defendant’s sister) informed the court that she had discussed the matter with the 3^rd Defendant.  What the 1^st Defendant said to the court made sense and was consistent with the objective circumstances.  There was no reason why the 1^st Defendant would wish to keep the 3^rd Defendant in the dark.  It has not even been suggested that the 1^st and 3^rd Defendants were not on speaking terms with each other.

6.  In the premises, I reject the 3^rd Defendant’s allegation that he had not been aware of the present proceedings prior to March 2026.  Regrettably, I have come to the view that the 3^rd Defendant’s summons dated 5 May 2026 is simply an attempt to cause delay and obstruction.

7.  In any event, none of the matters alleged by the 3^rd Defendant may constitute a valid defence to the Plaintiff’s claims in these proceedings.  I am not of the view that the 3^rd Defendant’s case has a reasonable prospect of success.

8.  First, the 3^rd Defendant alleged that the 1^st Defendant paid an alleged referral fee.

9.  Whilst this allegation has nothing to do with the 3^rd Defendant at all, it is not borne out by a shred of documentary evidence.

10.  Indeed, in paragraphs 34 to 35 of the Judgment, I pointed out that:-

“34.  The 1^st Loan Agreement contains the following annexures, which are documents involving Kapital Oasis Management Ltd (the “Referrer”). All these documents were signed on 13 May 2020: -

(1)   Annexure 2 is a referral agreement signed by the 1^st Defendant and the Referrer. In gist, it was provided that regardless of whether the Plaintiff eventually advanced loans to the 1^st Defendant, the Referrer could not charge any fee against the 1^st Defendant.

(2)   Annexure 3 is a confirmation that the Referrer provided to the Plaintiff. In gist, the Referrer confirmed that it did not charge any fee against the 1st Defendant.

(3)   Annexure 4 is a confirmation signed by the 1^st Defendant and the Plaintiff. In this document, the 1^st Defendant confirmed that the Plaintiff had advised her not to pay any fee to the Referrer and that she understood that the Plaintiff was not related to the Referrer.

35.  The 1^st Defendant does not dispute that she had signed the referral agreement and the confirmation under annexures 2 and 4.”

11.  In the premises, it is clear that the 1^st Defendant had unequivocally acknowledged that she should not pay any referral fee and that no referral fee would be charged against her.

12.  Second, the 3^rd Defendant alleged that the 1^st Defendant did not serve notice of severance on him and the 2^nd Defendant.

13.  I cannot see how this allegation may avail the 3^rd Defendant. In this connection:-

(1)     The 1^st Defendant did execute a notice of severance, which has been registered with the Land Registry.

(2)     In any event, it is trite that a co-owner’s act of executing a legal charge to deal with his or her own share in the property would destroy the unity of interest existing between the joint owners and thus put an end to the joint ownership: see Cedar Holdings Ltd v Green & Anor [1981] 1 Ch 129, 138F‑H (per Buckley LJ); Mak Pui Ki v Ho Wing Ha [2020] HKCFI 2705 at para 28 (per DHCJ MK Liu). 

(3)     There is no dispute that the 1^st Defendant did execute the Mortgage over her 1/3 share of the Property to secure the indebtedness under the Loan Agreements.  As such, there is no room for the 3^rd Defendant to contend that Property is still subject to a joint tenancy.  This is not the case.

14.  Third, like the 1^st Defendant, the 3^rd Defendant alleged that the sale of the Property would cause hardship to the 2^nd Defendant.

15.  In this connection, in paragraphs 66 and 67 of the Judgment, I stated:-

“66. Fourth, I am not of the view that the sale of the Property would cause hardship to the 2^nd and 3^rd Defendants: -

(1) Upon the sale of the Property, the 2^nd and 3^rd Defendants will receive 2/3 of the balance of the sale proceeds after the relevant expenses are deducted. In light of the substantial value of the Property, the 2^nd and 3^rd Defendants will receive a substantial amount of money. As such, the 2^nd and 3^rd Defendants could purchase an alternative property for residential purposes.

(2) In this connection, at the hearing, the 1^st Defendant alleged that the 2^nd Defendant was a fragile elder. Thus, she would suffer distress if she is forced to move to another residential property. I am not in a position to accept the 1^st Defendant’s bare assertion (which was not even raised in her affirmation in opposition filed on 14 March 2025). For reasons best known to themselves, the Defendants have not adduced any evidence on the 2^nd Defendant’s health conditions. As such, I am unable to conclude that the sale of the Property will have a devastating effect on the 2^nd Defendant’s health as alleged. In any event, whilst I accept that the 2^nd Defendant will face some inconvenience, this is not a sufficient reason to deprive the Plaintiff of remedies.

67. Fifth, I am also of the view that the interests of the Defendants are adequately safeguarded. In this connection, I take into account that: -

(1) The proposed sale of the Property will be conducted by the Plaintiff’s solicitors, ie ELPN, who are officers of the Court.

(2)  There will be a reserved price (ie HK$70,000,000). This is based on the valuation conducted by Mr Raymond Hui of Midland Surveyors Ltd (which has not been disputed by the Defendants).”

16.  By now, the 3^rd Defendant has put forward a medical receipt issued by Dr Mak Ying Fai on 19 March 2024^[2]. However, according to Dr Mak’s diagnosis on the 2^nd Defendant, there was:-

“no evidence of dementia”

17.  Based on the evidence available to the court, it appears that both the 1^st and 3^rd Defendants had exaggerated the medical condition of the 2^nd Defendant.

18.  I reject the 1^st and 3^rd Defendants’ allegations that the sale of the Property would have a devastating effect on the 2^nd Defendant.  In this connection, I fail to see any reason why the 2^nd and 3^rd Defendants may not utilize the sale proceeds arising from the Property to purchase an alternative residential property.  It is obvious that the Plaintiff is entitled to recover the substantial indebtedness owed by the 1^st Defendant, and it would be most unjust and unfair if the Plaintiff were left with no remedy at all.

19.  For all the above reasons, I dismiss the 3^rd Defendant’s summons dated 5 May 2026.

20.  Costs should follow the event.

21.  I order the 3^rd Defendant to pay the Plaintiff’s costs in respect of the summons dated 5 May 2026, summarily assessed at HK$50,000.

22.  I thank Ms Lydia Leung and Mr Lo Sek Man for their assistance.