XCHRX CHOI SZE FAI v. TSUI LAP LUNG AND ANOTHER

HCMP No. 3087 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3087 OF 1999

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D E C I S I O N

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1. On 24th May 1999, the Applicant in these proceedings, Mr. Choi Sze Fai, issued a Notice of Application for leave to apply for committal. This Notice was supported by his affirmation filed on the same day. After having read the affirmation evidence, I indicated on the papers that I was not satisfied that the evidence disclosed such a clear case that leave could be granted without a hearing and I indicated to the Applicant that he may ask for a hearing of his application under Order 52 r.2(4). Today was the hearing of that application.

2. Mr. Choi has very clearly set out his case before me. Having looked at the affirmation of Mr. Choi and his exhibits together with the benefit of his submissions, in my view, I should grant leave to apply for committal on Ground A. As I have granted leave, I should say no more about that ground.

3. In relation to Ground B, I refused to grant leave to apply for committal on that ground because of the following reasons. First, the end purchasers, namely Mr. Lau Sui Ming and Madam Yuen Wai Ching, had acquired their equitable interest in the property in question from a Sale and Purchase Agreement dated 12th September 1994, which pre-dated the Applicant's summons to set aside the Orders of Masters Woolley and Jennings which was filed on 23rd September 1994. Therefore, there was no change in circumstances which was effected by the adjournment obtained by the Respondents from Master O'Donnell on 18th October 1994.

4. Secondly, this Sale and Purchase Agreement to the end purchasers had been disclosed to the Court in the 4th affirmation of the 1st Respondent, so it is not a question of anything having failed to be disclosed to the Court.

5. Thirdly, even if the 4th affirmation of the 1st Respondent was not available to the Applicant on 18th October when he appeared before Master O'Donnell, it was available to him in the period before 31st October, because he said it was made available to him shortly after 18th October. However, he made no attempt to restore the matter before the Court within that period, and there is insufficient evidence before me to say what attempts, if any, he had made to restore the matter during the adjourned period in his attempt to set aside the Orders prior to the completion of that sub-sale, or to explain why he did not make any such attempts.

6. For those reasons, I am not satisfied that there is sufficient evidence in support of the application for leave to apply for committal on Ground B.