SI TOU CHOI KAM v. WEALTH CREDIT LTD

CACV 167/2017

[2018] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2017

(ON APPEAL FROM DCMP 537/2016)

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J U D G M E N T

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Hon Cheung CJHC:

1.  This is the plaintiff’s appeal from the judgment of Deputy District Judge J Chow dated 17 January 2017.

The facts

2.  Very briefly, the plaintiff and her husband are the registered joint owners of a property known as Flat A, 18^th floor, Block 2, The Pinnacle, 8 Wan Hang Road, Tseung Kwan O, Sai Kung, New Territories.  The couple purchased the property in 1999 from the Hong Kong Housing Society.  They obtained a loan from the Housing Society as well as a bank mortgage loan to finance their purchase.  There is some material, described below, suggesting that both the husband and wife contributed to the purchase price and the repayment of the loans.  However, the plaintiff has since claimed that she has been solely responsible for all payments relating to the purchase of the property and repayment of the loans, and the husband has essentially contributed nothing towards the same.  Based on these assertions, the plaintiff has obtained a declaration in HCMP 3339/2013 against the husband that since the purchase of the property in 1999, “the interest and benefit of and in the Property has been and is held by them as joint tenants as trustees thereof in trust for, and for the sole and entire benefit and interest of the Plaintiff absolutely” (paragraph 1 of the Order of Lok J dated 26 November 2015).

3.  It should be noted that by then the husband had already been adjudicated bankrupt, he never attended the proceedings, and the Official Receiver (as trustee in bankruptcy) who appeared at the substantive hearing before Lok J did not contest the plaintiff’s claim (apart from filing some evidence).

4.  Before all this happened, because of some judgment debts owed by the husband to the defendant, a total of four charging orders, that is, two sets of charging orders nisi and absolute, against the property were obtained by the defendant from the District Court.  These charging orders have all been registered in the Land Registry – the two charging orders in DCCJ 252/2009 were registered on 19 May 2009 and 15 June 2009; and the other two charging orders in DCCJ 3761/2009 were registered on 13 November 2009 and 31 December 2009 respectively.

The proceedings below

5.  Armed with the declaration obtained from the High Court, the plaintiff commenced the proceedings below by originating summons to discharge and vacate the registration of the four charging orders. The matter was heard by the deputy judge who decided the application against the plaintiff essentially on the basis of priority under the Land Registration Ordinance (Cap 128) (“the Ordinance”).  She apparently considered that since the charging orders were registered prior to the declaration which was registered against the property in the Land Registry on 28 January 2016[1], section 3(1) of the Ordinance applied and the defendant’s charging orders had priority over the declaration of the existence of a trust in favour of the plaintiff.  The deputy judge also dealt with a number of other arguments raised by the parties, but apparently, the matter was decided on the question of priority as described.

Arguments on appeal

6.  Aggrieved by the decision of the deputy judge, the plaintiff appealed.  The plaintiff argued that the deputy judge had conflated the question of priority with the question of validity.  Given the declaration, the husband simply has never had any beneficial interest in the property, against which a charging order can be made.  The charging orders should therefore all be discharged, and accordingly, their registration in the Land Registry should be vacated.

7.  Less than one month before the hearing (29 March 2018), the defendant, now represented by a new team of solicitors and counsel, applied by summons to run a new point, that is, the declaration is not binding on non‑parties like the defendant.  That being the case, at the very least, it should be open to the defendant to reopen the question of the husband’s holding the property on trust for the plaintiff in the proceedings below.

8.  On a de bene esse basis, we heard arguments on this new point and reserved our decision on the application to run it.

Making of a charging order

9.  I first turn to the question of validity and priority.  There are two related matters.  First, the making of a charging order.  Secondly, the registration of the charging orders in the Land Registry and the question of priority.

10.  As Mr Jose D’Almada Remedios, counsel for the plaintiff in this appeal (but not below) correctly pointed out, section 52AA of the District Court Ordinance (Cap 336) provides that:

“(1) … a charge may be imposed by a charging order under this Ordinance only on-

(a) an interest held by the judgment debtor beneficially-

(i) in an asset of a kind mentioned in subsection (2); or

(ii) under a trust; or

(b) an interest held by a person as trustee of a trust (in this paragraph referred to as the trust), if the interest is in an asset of a kind mentioned in subsection (2) or is an interest under another trust and-

(i) the judgment or order for which a charge is to be imposed was made against the person as trustee of the trust;

(ii) the whole beneficial interest under the trust is held by the judgment debtor unencumbered and for his own benefit; or

(iii) 2 or more judgment debtors are all liable to the judgment creditor for the same debt and together hold the whole beneficial interest under the trust unencumbered and for their own benefit.”

11.  Put in a simplified way, a charging order can only be made against a property if the judgment debtor has a beneficial interest in it.  Leaving aside whether the declaration is binding on the defendant for the time being (that is, the new point), and proceeding on the basis that as declared, the husband has always held the property on trust for the plaintiff, he simply has no, and has never had any, beneficial interest in the property, against which a charging order can be made under section 52AA.  That being the case, the charging orders must be discharged for want of jurisdiction on the part of the court to impose the same in the first place.  Section 52AB(4) of the District Court Ordinance provides for the jurisdiction and procedure to do so.

Only instruments that affect land may be registered

12.  Secondly, registration of the charging orders.  Following the discharge of the charging orders, their registration in the Land Registry must be discharged: section 52AB(5).  That is the short and complete answer to the question of vacating the registration of the charging orders (subject to the new point).  However, in view of the way the court below has apparently dealt with the case, some further observations are helpful.

13.  First, it must be remembered that only instruments that affect land may be registered in the Land Registry under the Ordinance: section 2(1).  Instruments that do not affect land are simply not registrable.  If such an instrument is somehow registered in the Land Registry, “everyone with an interest in the land must be entitled to have the registration vacated”: Thian’s Plastics Industrial Co Ltd (No 2) v Tin’s Chemical Industrial Co Ltd [1971] HKLR 249, 257, per Huggins J (as he then was).  The learned judge went on to explain on the same page of the law report:

“ … Not surprisingly the Ordinance assumes that only those matters will be registered which it allows to be registered and therefore it provides no machinery for vacating an unauthorised registration. If the Court has no inherent jurisdiction to order vacation of such a registration, the entry must continue in spite of the damage which may result therefrom. No court of equity could countenance such a state of affairs and I have no doubt that we have power to do what is asked or that we ought to exercise that power in order to prevent a manifest injustice.”

14.  It follows that section 3(1) of the Ordinance, which provides that all instruments registered pursuant to the Ordinance “shall have priority one over the other according to the priority of their respective dates of registration”, simply does not come into play when one of the registered instruments is one that does not affect land. Instruments registered pursuant to the Ordinance in section 3(1) can only mean instruments that are registrable in the first place and are in fact registered accordingly.  An instrument which is not registrable has no place in the Ordinance, and the ranking of priority in accordance with the dates of registration as provided in section 3(1) simply has no application.  See the exposition of the issues concerning the Ordinance by Hunter J in Financial and Investment Services for Asia Ltd v Baik Wha International Trading Co Ltd [1985] HKLR 103.

15.  On the facts of the present case and on the assumption that the husband has never had any beneficial interest in the property, the charging orders made simply are not instruments that affect the property, even when giving the word “affect” in section 2(1) “a large meaning”: Thian’s Plastics Industrial Co (No 2), p 256.  It must be remembered that a charging order is made only as a means to enforce payment of a judgment debt: Order 45, rule 1(1)(c), the Rules of the District Court (Cap 336H).  It is registrable under the Ordinance for that reason: section 52AB(2) of the District Court Ordinance.  However, if the judgment debtor has no beneficial interest in the property, the charging order is simply meaningless in terms of aiding enforcement.  Such a charging order cannot possibly affect the property.  This is quite regardless of section 52AA of the District Court Ordinance discussed above.  For that reason alone, the charging orders in question are not registrable and should therefore be vacated.  The question of ranking of priority under section 3(1) of the Ordinance simply does not come into play.

The declaration does not impose a trust

16.  Secondly, with respect, the error involved in the present case is more fundamental.  As mentioned, the court below appears to have ranked the priority of the charging orders against the declaration (pursuant to section 3(1)).  That exercise proceeded on the erroneous premise that the trusteeship of the husband over the property only arose out of the declaration made in 2015 (and registered in the Land Registry in January 2016).  But the terms of the declaration make it very clear that the trusteeship of the husband arose from day one, that is, from the time of purchase in 1999.  What Lok J has effectively decided (leaving aside the question of whether it is binding on the defendant) is that the husband has never had any beneficial interest in the property.  The declaration serves as proof or confirmation by the court of that pre‑existing state of affairs.  By itself, it does not confer or impose a trusteeship on the husband as such.  It simply confirms that he has all along been a trustee.  With respect, it is therefore wrong to rank priority between the charging orders and the declaration as if the declaration by itself imposed on the husband a trusteeship.  It did not.

17.  Rather, if one wishes to approach the present dispute from the perspective of priority, the correct analysis is that between 1999 and the making of the declaration in November 2015, the trust over the property was an unwritten one – by way of a resulting trust as a matter of law – not contained in or evidenced by any registrable instrument. There was simply no instrument to register – bearing in mind that our system of land registration in Hong Kong is a system of registration of title documents, rather than a system of registration of title.  In terms of priority, therefore, it was a contest between the prior, unwritten resulting trust and the subsequent, registered charging orders.  In accordance with the rules of priority in equity, the prior resulting trust was good against the whole world except a bona fide purchaser of the legal estate for value without notice.  Now it is clear that the holder of a charging order is not a purchaser of the legal estate because a charging order has like effect as an equitable charge and does not involve a transfer of legal or equitable ownership to the judgment creditor: section 52AB(3) of the District Court Ordinance; Re Cosslett (Contractors) Ltd [1998] Ch 495, 508G/H.  Nor does the holder provide any fresh consideration when the charging order is obtained: Financial and Investment Services for Asia Ltd at pp 110J‑111G; Ng Kam Ha v Vincent Sina Traders (HK) Ltd [1987] 2 HKC 517, 519A/B.  That being the case, the prior resulting trust in favour of the plaintiff was not defeated by the creation or registration of the four charging orders as a matter of priority in equity, even putting to one side the fatal point discussed earlier that under section 52AA a charging order cannot be imposed in the first place for want of beneficial interest in the property.  Neither section 3(1) nor 3(2) of the Ordinance was engaged in the situation under discussion.  The registration in 2016 of the declaration declaring the existence of the pre‑existing resulting trust does not affect the priority of the resulting trust over the charging orders as analysed above, as the declaration does not create the resulting trust but merely confirms its existence.

18.  For these reasons, on the basis that the declaration of trusteeship is binding on the defendant (or the basis that the husband is indeed a trustee as declared), the registration of the charging orders must be vacated.

Is the declaration binding?

19.  I now turn to the question of whether the declaration is binding on the defendant.  This question arose out of the fact that the defendant was not joined as a party to HCMP 3339/2013, although there is clear material suggesting that the defendant was well aware of those proceedings, if not acquiesced in the position adopted by the Official Receiver.

20.  On the other hand, there is indeed material, as submitted by Ms Bianca Yu appearing for the defendant in this appeal (but not below), which may seem to cast doubt on the plaintiff’s claim in the High Court proceedings that the husband has never contributed anything towards the purchase of the property or the repayment of the loans. Among other things, Ms Yu pointed out that the couple are a married couple with children.  The husband worked as a police officer and received a monthly local education allowance and a school fee allowance in addition to other employment benefits.  The plaintiff claims that all payments concerning the property were supplied by her, but she has not exhibited any documents showing the payment of the initial deposit, payment of legal fees and stamp duty, or evidence that she made all the mortgage repayments.  Furthermore, prior to his bankruptcy, the husband had indicated in a loan application form dated 6 April 2009 that he was the owner of the property and that he did not hold the property on trust.  Likewise, the husband had, prior to his bankruptcy, claimed home loan interest from his taxable income and had used the property as security in various loan agreements signed by him.  The husband had also said in proceedings in relation to his individual voluntary arrangement, prior to his bankruptcy, that his insolvency had arisen in part when he purchased the property with his wife and borrowed money from his grandmother.

Judgment in personam or in rem?

21.  In my view, Ms Yu was correct in submitting that the declaration in question is in the nature of a judgment in personam, rather than one in rem, despite Mr Remedios’ arguments to the contrary.  As has been explained by Lord Mance in Pattni v Ali [2007] 2 AC 85, paras 20 and 21, a decision in rem may be described as one by a tribunal with jurisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing.  The importance of this distinction is that a judgment in personam binds only the parties to the proceedings, as distinguished from one in rem “which fixes the status of the matter in litigation once for all, and concludes all persons”.  Spencer Bower & Handley, Res Judicata (4^th ed) puts the distinction this way (pp 58 and 157):

“4.20 Whether a foreign judgment is in rem or in personam is a question of fact. A judgment in rem deals with the status of persons or things, or effects a disposition of movable or immovable property. Judgments in rem derive their validity from the situation of the person or property within the jurisdiction. Judgments dealing with status, to be effective, must bind the so called world because status must be generally accepted. If the action is in rem service on or notice to the defendant must still be proved.”

…

10.01 A decision in rem conclusively determines the status of a person or thing; that is its jural relation to persons generally, not just parties and privies.  It is sometimes said to be binding on the world, unlike decisions in personam which determine the jural relation of persons to each other.”

22.  In the present case, the declaration determined the trusteeship of the husband of the property in favour of the plaintiff.  It did not deal with any disposition of the trust property.  It could not possibly prevent, as a hypothetical example, a close relative of the couple, who had been unaware of the High Court proceedings, from emerging subsequently and making a claim to the property as being the real person who had contributed to the purchase of the property: see the example given by Lord Mance in Pattni (para 29) of a third party making a claim subsequent to the relevant judgment there.  As explained by his Lordship:

“ … in order for a judgment to have in rem effect …, the determination must be a determination regarding the status or disposition of property which is to be valid as against the whole world. The fact that a judicial determination determines or relates to the existence of property rights between parties does not in itself mean that it is in rem.” (paragraph 23)

23.  It is true that paragraph 2 of the Order of 26 November 2015 directs the Official Receiver to execute an assignment to convey the registered legal title of the bankrupt husband to the plaintiff, and therefore, so Mr Remedios argued, constitutes an order determining disposition of property.  However, the proceedings below were not concerned with this part of the Order, that is, the proceedings below had nothing to do with the Official Receiver’s transferring the legal title to the plaintiff, or the situation after the conveyance is so made.  Rather, the material part of the Order involved in the proceedings below and this appeal relates to the declaration by the court that the husband has been holding the legal title on trust for the plaintiff.

Notice to non‑party: Order 15, rule 13A

24.  In short, the declaration is a declaration in personam.  In itself, it does not bind any non‑party, the defendant included.  However, this is not the end of the matter.  Order 15, rule 13A of the Rules of the High Court (Cap 4A) provides:

“(1) At any stage in an action to which this rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the action be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.

…

(4) A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the writ or originating summons and shall thereupon become a party to the action, but in default of such acknowledgment and subject to paragraph (5) he shall be bound by any judgment given in the action as if he was a party thereto.”

25.  Mr Remedios suggested, though vaguely, that in substance, although not in form, such notice was given to the defendant in the High Court proceedings when the court ordered notice of hearing be served on the defendant, which was done (see below).  Ms Yu pointed out, correctly, that no such notice, in the statutory form, was ever served on her client in the High Court proceedings.  Therefore, she argued, the declaration was not binding on the defendant.

26.  I have two observations to make on counsel’s respective arguments.  First, Order 15, rule 13A, which applies to cases concerning the estate of a demised person or trust property is applicable to a judgment which “will or may” affect a person who is not a party to the relevant proceedings: rule 13A(1).  On the face of it, where one is concerned with a judgment in personam, strictly speaking, it is not a judgment that will or may affect a non‑party.  This reading, however, will render rule 13A quite meaningless, and it seems to me that on a purposive interpretation, the rule should be given a more liberal construction.  But I need not dwell on this point as there is a second, more important, observation that I would like to make.  That is, Ms Yu’s argument proceeded on the assumption that apart from Order 15, rule 13A, a judgment in personam cannot otherwise become binding on a non‑party.

Estoppel by conduct

27.  With respect, this assumption is not correct.  In Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95, 101 (PC), Lord Denning, giving the judgment of the Judicial Committee, pointed out:

“ The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. But this general rule admits of two exceptions: one is that a person who is in privity with the parties, a ‘privy’ as he is called, is bound equally with the parties, in which case he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct.”

28.  Elaborating on estoppel by conduct, his Lordship referred to a passage from the judgment of Lord Penzance in Wytcherley v Andrews (1871) LR 2 P & M 327, 328:

“There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re‑open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re‑opened.”

29.  After discussing the facts of the case before the board which involved an attempt to re‑open a land dispute that had been litigated before in Ghana between the subordinate stool of one party against the subordinate stool of an opposite party to the subsequent litigation, Lord Denning said:

“ Their Lordships are of opinion that the principle stated by Lord Penzance should be applied in this case unless technical legal reasons exist which prevent its application.” (pp 103 to 104).

30.  As Stuart‑Smith LJ pointed out in House of Spring Gardens Ltd v Waite [1991] 1 QB 241, 253, although the rule enunciated by Lord Penzance may have originated in the special position in probate, “[one] cannot see that justice and common sense require it to be so confined”.

Circumstances in the present case

31.  This being the true legal position, one must turn to the circumstances under which the defendant, having knowledge of the High Court proceedings, allowed the declaration to be made without intervening.  In this regard, the court has had the benefit of examining the court files in the High Court proceedings as well as the bankruptcy proceedings of the husband.  According to the court record, although formal notice under Order 15, rule 13A was never served on the defendant in the High Court proceedings, the existence and interest of the defendant as the holder of the charging orders were disclosed by the plaintiff to the court from the beginning, which adjourned the first hearing of the originating summons in the High Court proceedings on 9 May 2014 for service of notice of hearing on the defendant.  Notice of hearing was duly served on 14 May 2014.

32.  Within two weeks (28 May 2014), the bankruptcy petition was presented.  The defendant, although the holder of the charging orders in question, reckoned that the outstanding indebtedness of the husband exceeded the net value of the husband’s interest in the property as a joint owner.  Therefore, to the extent that the defendant was an unsecured creditor, and on the basis of the excess part of the indebtedness, the defendant (and a related creditor) petitioned for the bankruptcy of the husband.

33.  On 6 June 2014, that is, the second hearing of the High Court proceedings, a director of the defendant (Mr Wong) appeared in person and informed the court of the bankruptcy proceedings. Mr Wong also informed the court there was evidence that the husband had contributed to the purchase of the property and that bankruptcy proceedings had been commenced against him.  The court required that evidence be filed by the defendant to put forward the same, observing that it was not right to supply such information orally.  The court adjourned the hearing pending the outcome of the bankruptcy proceedings.

34.  On 17 September 2014, a bankruptcy order was made against the husband.  Skipping several procedural steps, on 14 August 2015, Lok J ordered the Official Receiver to be joined as a 2^nd defendant in the High Court proceedings with leave to file evidence relating to the husband’s financial position, which the Official Receiver did.  On 26 November 2015, the matter was heard before the same judge.  Skeleton submissions had been filed on behalf of the plaintiff seeking the declaration sought.  The Official Receiver did not seek to contest the proceedings.  Mr Wong was present at the hearing (as is evidenced by the contemporaneous correspondence).

35.  Several observations can be made.  First, the defendant, on the facts briefly outlined above, was fully aware of the High Court proceedings.  Secondly, both the court and the plaintiff, as well as the defendant, were aware of the possible implications of the plaintiff’s seeking the declaration on the position of the defendant, holder of the charging orders.  That was the only explanation for the plaintiff’s informing the court of the existence of the defendant and the charging orders, and the only explanation for the court’s adjourning the first hearing and directing that notice of hearing be served on the defendant.  Thirdly, the defendant through Mr Wong was present at all material hearings in the High Court proceedings, including the substantive hearing resulting in the making of the declaration.  Fourthly, the interest of the defendant and the interest of the Official Receiver were common to this extent, that is, if there was any arguable ground for resisting the plaintiff’s proceedings for a declaration, it would be in the interest of the general creditors (including, importantly, the defendant to the extent that the judgment debts were not covered by the charging orders), as well as the defendant as secured creditor under the charging orders, to do so. Finally, yet, the defendant knowingly stood by, and watched the plaintiff obtain the declaration before Lok J at the substantive hearing, with the Official Receiver not contesting – a position fully known to the defendant.

36.  In my view, the facts in the present case are such that it would be an abuse of the process of the court to allow the defendant to re‑open the matter decided by the declaration in the subsequent proceedings below, and the defendant is estopped by its own conduct from doing so.

37.  Ms Yu argued that the Official Receiver’s failure to contest the proceedings was occasioned by resource consideration.  In my view, if that were so, that must have been known to the defendant as petitioning creditor, and it should be all the more reason for the defendant to intervene, which the defendant did not do.

38.  Ms Yu argued that the declaration was obtained uncontested, and was no different in nature from a declaration by consent.  The court should be most slow to conclude that it is binding on a non‑party like her client.  With respect, I do not agree.  First, the declaration was obtained by the plaintiff in the High Court proceedings in circumstances described above.  To say simply that it was obtained uncontested was an over simplification of what had been involved.

39.  Secondly, a declaration is a particularly solemn form of relief.  It is not granted by a court lightly even when the proceedings are uncontested.  It will not be granted by the court as a matter of course even by consent.  A court will examine the merits of the case before deciding to grant a declaration.  See generally, Hong Kong Civil Procedure 2018, vol 1, para 15/16/2.  Based on the material in the court file, including the evidence filed and the various sets of skeleton arguments submitted by the plaintiff, it is plain that the judge had had the benefit of considering the evidence and submissions placed before him, including evidence filed by the Official Receiver pointing out the various matters suggesting that the husband might have contributed to the purchase of the property or the repayment of the loans described earlier in this judgment, before making the declaration.  The fact that the Official Receiver did not see fit to contest the proceedings at the substantive hearing cannot, in all fairness to the judge, turn the declaration into one made without consideration of the merits by the judge.

A new point

40.  For all these reasons, I reject this new point on the binding effect of the declaration.  I have been calling it a new point despite arguments to the contrary by Ms Yu who contended that the deputy judge actually relied on this point as part of her reasoning for dismissing the plaintiff’s application.  She made that submission in order to say that it was not necessary to put in a respondent’s notice to support the deputy judge’s conclusion on this alternative basis.  I do not wish to lengthen this judgment by turning to the judgment of the deputy judge again.  Suffice it to say, it was for Ms Yu to persuade the court that the deputy judge did rely on this point as suggested.  Having read the judgment, I am far from sure or persuaded that this was the position.

Disposition

41.  In other words, leave to argue the new point is required.  Given that I reject the new point, there is no point in giving leave to allow it to be run.  I would refuse the defendant’s application with costs.

42.  For all the reasons given above, I would allow the appeal, set aside the deputy judge’s order, make an order discharging the charging orders and vacating their registration in the Land Registry, and awarding the costs of the proceedings below to the plaintiff, with a certificate for counsel.  As for the costs of this appeal, I would make an order nisi that they be borne by the defendant.

Hon Cheung JA:

43.  I agree with the judgment of the Chief Judge.

Hon G Lam J:

44.  I also agree.

Hon Cheung CJHC:

45.  Accordingly, we dispose of this appeal in terms of paragraphs 41 and 42 above.