KENT REGINALD ALBERT v. MAK KIT MAN

Headnote

[The Land Registrar should be prepared to vacate an entry of a pending action in the Register if the parties concerned consent to his doing so; an application to the court in those circumstances is, or should be, unnecessary]

1993, No. MP4098

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

----------------------

J U D G M E N T

----------------------

1. This is an application made by originating summons pursuant to the provisions of ss.19 and 20 of the Land Registration Ordinance, Cap.128 for vacation of the registration in the Land Register of a pending action, being a claim made in the Small Claims Tribunal by the applicant in these proceedings against the respondent.

2. The parties have come to a settlement of the claim ventilated in the Small Claims Tribunal and now come before this court asking the court to exercise the power, which it undoubtedly has, to order vacation of the entry.

3. The applicant and the respondent are, then, agreed that they no longer want the pending action to remain on the register. In these circumstances, I suggested to the solicitors for the applicant and for the respondent that they had no need to apply to this court to exercise its powers under the Ordinance. I suggested that it would have been sufficient for the applicant to write to the Land Registrar stating the applicant's desire to vacate the entry (accompanying that letter with the signed consent of the respondent). The Land Registrar could then have registered the fact that the entry of the pending action had been vacated by consent, so that anyone inspecting the register would have seen that, although there had been a pending action registered, that pending action need not be of any concern to him.

4. The use of the court as a rubber stamp is in my judgment quite unnecessary. The court is here to decide disputed issues; not to spend its time on undisputed ones. S. 19 of the Ordinance is plainly designed to enable the court in a proper case to resolve any dispute between the person responsible for the entry on the Land Register and the person against whom the entry has been made. Where there is no such dispute, a reference to the court is or should be entirely unnecessary.

5. However, in the present case, it was an abuse of the statutory provisions for registration of a pending action which led to the entry on the register of the applicant's claim against the respondent in the Small Claims Tribunal. In no sense was that claim an action affecting the respondent's title to the land. The application for registration of the pending action ought never to have been made, and ought never to have been entertained, by the Land Registrar. In these circumstances, I am prepared to exercise the power conferred on the court by s.20 and order the Land Registrar to vacate the entry.

6. I will now hear both sides on what, if anything, I should do about the costs of this application.