NG TSUI FONG PRISCILLA v. CHAU CHAM CHIU OTHERWISE KNOWN AS PETER CHAU CHAM CHIU

DCMP 593/2018

[2019] HKDC 129

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 593 OF 2018

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DECISION

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1.  By a summons filed on 17 January 2019, the plaintiff seeks a default judgment against the defendant. Having considered the evidence as to service adduced by the plaintiff, I am satisfied that the documents in these proceedings have been duly served on the defendant.

2.  These proceedings were initially instituted by an originating summons.  The trial was originally fixed on 4 and 5 October 2018.  However, on the 1^st day of the trial, the court took the view that these proceedings should be converted to a writ action and so ordered.  The plaintiff filed the statement of claim on 21 November 2018. The defendant filed a notice of intention to defend on 3 December 2018. However, up to now, the defendant has not filed any defence.

3.  It is well established that in an application for a default judgment, only the matters pleaded in the statement of claim would be considered and no evidence on merits is admissible^[1].

4.  The plaintiff’s case as pleaded in the statement of claim is as follows:-

(1)   The defendant is and was at all material times the registered owner of a car parking space known as Car Parking Space No 1 on the Ground Floor of No 1 Robinson Road, Mid-Levels, Hong Kong (“the Car Parking Space”).

(2)   On 8 December 2017, the plaintiff as purchaser and the defendant as vendor entered into a provisional sale and purchase agreement concerning the Car Parking Space (“the Agreement”), the price as per the Agreement is HK$1,300,000.

(3)   The plaintiff has duly paid the initial deposit of HK$100,000 and the further deposit of HK$30,000 stipulated in the Agreement on 8 December 2017 and 21 December 2017 respectively.

(4)   At all material times, the plaintiff was ready, willing and able to complete the purchase under the Agreement.

(5)   The original completion date as per the Agreement is 31 January 2018.

(6)   On 31 January 2018, the defendant returned the further deposit of HK$30,000 to the plaintiff.

(7)   The defendant failed to complete the sale and purchase on or before the agreed completion date.

(8)   On 7 February 2018, the plaintiff requested the defendant to complete the sale and purchase.  Notwithstanding this request, the defendant still failed to complete the sale and purchase.

5.  Having considered the matters pleaded in the statement of claim, in my view, the plaintiff is entitled to have judgment by relying upon those matters.  The plaintiff is seeking an order for specific performance compelling the defendant to complete the sale and purchase as set out in the Agreement.  I am prepared to give the plaintiff that order.  The following matters would be provided in the order:-

(1)   Following Wise Think Global Ltd v Finance Worldwide Ltd (No 2)[2], the plaintiff would need to pay interest on the balance of the purchase price at the rate of 4% per annum from the original completion date as stated in the Agreement (ie 31 January 2018) to the new completion date provided in the order.  Since the defendant has returned the further deposit of HK$30,000 to the plaintiff on 31 January 2018, there should also be interest on this sum at the rate of 4% per annum from 31 January 2018 to the new completion date provided in the order.

(2)   The rents and profits from the Car Parking Space received by the defendant or by another person or persons by his order for the use and benefit of the defendant from 31 January 2018 to the new completion date provided in the order (if any) should be given by the defendant to the plaintiff.

6.  I order that judgment be entered against the defendant and make the following order:-

(1)   The Agreement be specifically performed and carried into execution.

(2)   The transaction in the Agreement be completed in the manner as prescribed in this order on a date to be agreed by the parties, and in the absence of such an agreement, on a date to be fixed by the court (“the completion date”).

(3)   The parties shall try to agree on the following sums within 28 days:-

(a)   the sum due from the plaintiff to the defendant, which is the total of the further deposit and the balance of the purchase price and the interest thereon as provided in this decision (“Sum A”);

(b)   the sum due from the defendant to the plaintiff, which is the total of the rents and profits from the Car Parking Space and received by the defendant or by another person or persons by his order for the use and benefit of the defendant from 31 January 2018 to the completion date (if any) (“Sum B”);

(c)   the net sum due from the plaintiff to the defendant after taking the aforesaid into account (“Sum X”)[3].

(4)   In the absence of an agreement between the parties on the aforesaid sums within 28 days, those sums be assessed by the court.  The parties shall seek directions concerning the assessment exercise as soon as practicable after expiration of the 28 days.

(5)   The defendant do execute a conveyance of the Car Parking Space free from all incumbrances as an escrow to be delivered to the plaintiff.

(6)   On the completion date, upon the plaintiff paying to the defendant Sum X, the defendant shall at the same time deliver to the plaintiff:-

(a)   The said conveyance so executed and all other deeds and writings in his possession or power relating solely to the Car Parking Space, and verified the same by an affidavit/affirmation made by the defendant; and

(b)   Vacant possession of the Car Parking Space.

(7)   There be liberty to apply.

7.  Costs of this action, including costs of this application and all costs reserved, be to the plaintiff, with a certificate for counsel.  Those costs are summarily assessed at HK$120,000[4].

8.  I thank counsel for the assistance provided to the court.