WONG CHONG KWAI YIN v. TANG LAN FONG AND ANOTHER

HCA 939/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 939 OF 2005

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J U D G M E N T

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1.  This is an application by the 2^nd Defendant to apply to cease to be a party in this action and his name be struck out from all proceedings herein “on the grounds that he no longer has interest in the lots in question and accordingly no longer has any rights and in this action.”

2. In this action the Plaintiff claims against the 1^st Defendant and 2^nd Defendant a declaration that he has better title than the two defendants in respect of the subject property, an injunction against the defendants restraining them and their agents and representatives from causing any harassment and annoyance, and damages.

3. It is alleged that the defendants or his agents have tried to coerce the Plaintiff to give up possession of the property.

4. In support of his application the 2^nd Defendant filed an affirmation setting out the circumstances how and why he purchased the subject property from the 1^st Defendant on 1 February 2002.  After receipt of the writ herein he decided to sell back the property to the 1^st Defendant which took place on 5 July 2005.

5. The only ground submitted by Mr. Chan for the 2^nd Defendant as stated in paragraph 1 is that the 2^nd Defendant has sold the property and has no further interest in the proceedings.  I do not think he can walk away like that.

6. It seems to me that Mr. Chan fails to appreciate, apart from the title claim, that the Plaintiff has other claims against the defendants e.g. the injunction and damages because of the alleged harassments and nuisance created by the defendants.  If the Plaintiff could prove his case, he is entitled to those claims.

7. Even for the title claim, it is right for the Plaintiff to seek the declaration that they have better title than the defendants in order to avoid claims by the successors in title to the defendants.

8. I find that the Plaintiff has good reasons in opposing the application.  I dismiss the 2^nd defendant’s application.

9. I see no reason why costs should not follow the event.  Accordingly I make the following order nisi in respect of costs:

(a)   Costs of and occasioned by this application be to the Plaintiff and be borne by 2^nd Defendant.

(b)   I assess the costs in (a) above in the sum of $1,500.00.

(c)   As the 1^st Defendant has remained neutral in this application, she pays her own costs.

(d)   Pursuant to Order 42 rule 5B(6) this order nisi shall become absolute 14 days after the date of handing down this judgment unless within the period application in writing is made to vary this order.