CHOW CHING YEE v. WONG HUNG KEE

DCCJ 35/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 35 OF 2004

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DECISION

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1.  There are two applications before me this morning. First, the plaintiff’s application to re-amend the writ of summons. Second, the plaintiff’s application to transfer the action to the Court of First Instance.

2.  The somewhat unusual feature of this action is that it was commenced in 2004.  The writ was amended shortly after its issue.  The amended writ, endorsed with the statement of claim, was then served on the defendant.  Defence was filed in May 2004.  That would turn out to be the last substantive step taken in this action to date.  Nothing was done between then and 2015 by either party to take the matter forward.  There was an attempt by the plaintiff to revive the matter that was not pursued in the end under the rather curious circumstance that the plaintiff’s legal representatives did not turn up for the interlocutory hearing and thus her application was discussed.

3.  The plaintiff’s claim, in its present form, is for the enforcement of a co-operation deed against the defendant, a “ding” in the New Territories.  The purpose of the deed, the plaintiff says, is for the development of a ding house on the land owned by her. The defendant raises illegality as a defence.

4.  The case has effectively “gone to sleep” for 13 years.  Then, by summons dated 4 July 2017, the plaintiff seeks leave to amend the statement of claim to include a claim for resulting trust based on what appear to be substantially the same factual allegations relating to the co-operation deed.  She relies on the recent Court of Appeal decision in Kan Wai Chung v Hau Wun Fai CACV 7/2016, 30 June 2016 which she submits is authority that insofar an agreement for the development of a ding house between a landowner and a ding is illegal, the landowner may nonetheless seek relief relying on the doctrine of resulting trust, notwithstanding the illegality.

5.  In the same summons, she also applies to transfer the case to the Court of First Instance on the ground that the land concerned has substantially increased in value and she has adduced valuation evidence that the market value is worth over $6,000,000.  The plaintiff claims that the property now exceeds the monetary limit imposed in respect of the District Court’s equity jurisdiction of $3,000,000.  In any event, the plaintiff claims damages as an alternative relief and given the current market value of the land, it is likely that, if awarded, the award will exceed $1,000,000, which is the District Court’s monetary limit in a contractual claim.

6.  In my view, logically speaking, the court should first deal with the transfer application.  This is so because in its present unamended form the statement of claim contains an express claim for “damages to be assessed”.  In view of the substantial increase in the market value of the land over the years, it is possible that any damages that may be awarded under the pleaded contractual claim will exceed the monetary limit under section 32 of the District Court Ordinance, which is the section relied on by the plaintiff in her statement of claim as conferring jurisdiction on this court.

7.  Generally speaking, a plaintiff is entitled to frame his case in the manner that he wishes.  His case on quantum as framed by him ought to be viewed at its highest when determining the proper forum in which his claim is to be pursued.  Unless there is clearly an abuse in the way in which the claim is pleaded or for some other reason, even at an interlocutory stage, the court is able to come to a clear view that the plaintiff would not succeed in being awarded anything in excess of the District Court’s monetary jurisdiction, then the court should decide the issue of jurisdiction by reference to the plaintiff’s case, as framed by him.  See Wong Mui Kwan v FDS Savills [2006] 1 HKC 575 at §21 and Wong Kwong Wa v Hip Hing Construction Co Ltd DCPI 2039/2006, 11 July 2007 at §13.

8.  Here, there is no suggestion of any abuse.  At the hearing this morning, the defendant submits that the wording of the pleading, in its unamended form, is too vague to suggest what amount of damages the plaintiff is seeking.  The quantum of such damages claim is simply not spelt out.

9.  However, when the pleading is read as a whole, it is plain that the damages claim would possibly flow from the breach of the contract and it is possible that it would reflect the value of the land concerned, which may well be over $1,000,000.

10.  In the circumstances, in its unamended form, the District Court does not have jurisdiction to hear the case.  And if the plaintiff would like to (and she is in fact taking step to) progress with this claim, the court should accede to her application to transfer it to the Court of First Instance.  And this would include her application to re-amend the writ.

11.  This is because where, as a matter of analysis, this court has no jurisdiction to hear her case, as presently framed, I would think generally speaking that the court equally has no jurisdiction to hear any application in relation to or arising out of her claim.

12.  The action ought to be transferred to the Court of First Instance under section 41(1) of the District Court Ordinance and the amendment application be dealt with in that forum.

13.  For the above reasons, I make the following orders:-

(1) The action be transferred to the Court of First Instance.

(2) §§1 and 2 of the plaintiff’s summons be adjourned pending such transfer.

14.  In the course of the submissions, the plaintiff undertook to file affidavit evidence relating to the rateable value of the land.  In this regard, I direct that she do so within 14 days from today.  The evidence should cover both the rateable values of the land as of the date of the writ (if practicable) and as of today.

(Discussion re costs)

15.  I order that the costs of and occasioned by the transfer be in the cause and that costs of today’s hearing be reserved.