WONG CHOR CHEUNG v. WONG HARK CH

HCA 1676/2006

[2021] HKCFI 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1676 OF 2006

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DECISION

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1.  On 31 December 2020, I handed down a judgment dismissing the plaintiff’s claim to a partial beneficial interest in the Property (as defined in the judgment).[1]

2.  The Writ in this action is registered as a lis pendens against the Property at the Land Registry under the Land Registration Ordinance.[2]

3.  By letter dated 31 December 2020, the defendant asks for an order vacating the lis pendens under sections 19 and 20 of the LRO.   Since my Judgment has not been sealed, I retain jurisdiction to consider this application, being an application for an order consequential to the Judgment.

4.  Section 19 of the LRO provides as follows:

“ The court or judge before whom any property sought to be bound is in litigation, may on the determination of the lis pendens, or during the pendency thereof, where the said court or judge is satisfied that the litigation is not prosecuted bona fide, or for other good cause shown, make an order for the vacating of the registration in the Land Registry of such lis pendens without the consent of the party who registered it, and may direct the party on whose behalf the registration was made to pay all the costs and expenses occasioned by the registration or the vacating thereof, including the costs of the application to vacate, or may make such other order as to such costs or any of them as to the said court or judge may seem just.”

5.  Section 20 of the LRO provides as follows:

“ The application to vacate a lis pendens under section 19 may be in a summary way by petition or motion in court or by summons in chambers, and may be made by any person interested in the property against which the lis pendens has been registered, whether such person is a party to the lis pendens or not.”

6.  The plaintiff has filed a notice of appeal against the Judgment. 

7.  The plaintiff objects to the application to vacate the lis pendenson the ground that as he has filed an appeal, it would be unfair to him if the lis pendens is vacated, the defendant sells the Property in the meantime, and he then wins the appeal.

8.  Having dismissed the plaintiff’s action, I see no reason why the lis pendens should not be vacated.   While the plaintiff is claiming a share in the beneficial ownership of the Property, if he succeeds on appeal and the Property having been sold in the meantime, no doubt he will be entitled to be paid a proportional share of the sale proceeds, in which case his claim is satisfied and there is no unfairness.  The plaintiff is not claiming that the Property should be kept in the co-ownership of himself and the defendant, and indeed he asked for an order for sale and distribution of the sale proceeds in the Statement of Claim. There is no evidence that a monetary award against the defendant (if the plaintiff wins the appeal) will be nugatory if the Property is sold.

9.  I order that the registration of the Writ in this action, and all other documents (if any) of and in relation to this action, as a lis pendens against the Property at the Land Registry be vacated forthwith.  The plaintiff is to pay the costs of this application to the defendant, to be taxed if not agreed.