LI JING v. CHAN TAI KUK MELVIN AND ANOTHER

HCA3803/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3803 OF 2003

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J U D G M E N T

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1. The plaintiff lodged this action against her previous tenant, Mr Chan, and her ex-husband, Mr Lau, i.e. the 1^st and 2^nd defendants herein respectively.  The property was at one time jointly owned by the plaintiff and the 2^nd defendant and it was a matrimonial property. 

2. Mr Lee, solicitor for the 1^st defendant, applied to strike out certain parts of the plaintiff’s Statement of Claim.  In fact, it is the majority part of the Statement of Claim he sought to strike out.  The first part is concerned with the plaintiff’s home-made Statement of Claim which, in a nutshell, was in respect of the so-called conclusion―a word used by the plaintiff―which was actually the prayer of the Statement of Claim : a claim against the 1^st defendant for five items of court charges and costs.  They are in paragraphs 1B to F. 

3. In this respect, the costs were allegedly incurred in previous proceedings.  They should not be proper items to be claimed by the plaintiff.  If the plaintiff wanted to seek costs from Mr Chan, she should do so in those proceedings and not in separate proceedings as in the present action. 

4. The second item concerned paragraph 2 of the prayer, which was quite incoherent.  It reads :

“	Re-grantee your kindness the house-resuming order for my house of Hung Hay Building in this case, because my mater [I think ‘mater’ means mother] … ill, urgent need money in to hospital.”

5. The Chinese version is a little bit more coherent.  It reads, paragraph 2 :

“	申請繼續執行那我已有的收樓令，因為我的媽媽病重，需錢入院留醫。”

6. In a nutshell, the plaintiff wants to execute the Writ of Possession obtained by her on 6 June 2003.  This order had been revoked subsequently on 30 September 2003 and thus the Writ of Possession is no longer enforceable.  For the same reason, this paragraph should be struck out. 

7. The remaining part―and that is the third part Mr Lee sought to strike out is in respect of paragraph 1A whereby the plaintiff is claiming 20 months’ rental amounting to $120,000 plus interest.  The lease was dated 6 February 2002, running from 15 February 2002.  Upon signing the tenancy agreement, Mr Chan has paid two months’ deposit and one month’s rental, covering the period of 15 February to 14 March.  So the outstanding rent would be from 15 March onwards.  However, on 19 December in HCMP2594/2002, Master Ho made an order that :

“	Pursuant to section 48 of the Trustee Ordinance, Cap. 229, and for the purpose of facilitating the sale of all the defendants [the defendant was Madam Li in those proceedings] and interest in the property be vested in the plaintiff.”

8. The plaintiff was Mr Lau in those proceedings, i.e. the 2^nd defendant in the action before me today.  Thus from at least 19 December 2002 onwards, Madam Li has no interest in the subject premises and Mr Lee therefore sought to strike out paragraph 1A of the prayer save as to the part of the allegation that the 1^st defendant, i.e. Mr Chan, should pay rent to Madam Li for the period from 15 March 2002 to 18 December 2002. 

9. I accept the submissions of Mr Lee for the 1^st defendant and therefore I order in terms of the whole summons. 

[Submission re costs]

10. In respect of costs,  I think the skeleton bill of Mr Lee is a reasonable assessment of costs.  Thus in respect of paragraph 3 of the summons, I summarily assess the costs incurred in respect of the summons amounted to $4,000.