THE INCORPORATED OWNERS OF KAN OKE v. LEE YIU KEI AND ANOTHER

HCMP 33/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 33 OF 2014

____________

_____________

_____________

_________________

D E C I S I O N

_________________

1.  This is the defendants’ application for an injunction and RAO and RPO.

2.  The background is this.  By an order dated 5 April 2016, Master Hui required the defendants to pay outstanding charges and interest on a memorandum of charge.  If they failed to pay, then the plaintiff was at liberty to sell the defendants’ properties at a reserve price of $15.5 million.  Master Hui also dismissed six summonses taken out by the defendants.  Subsequently, Master Hui’s order was amended, on 13 January 2017, to specify the interest that the defendants had to pay on the principal sum.  I shall collectively refer to the original order and the amended order as “the orders”.

3.  By the present summons, the defendants seek an order against the plaintiff, the plaintiff’s solicitors and all related parties and all other parties requiring them to stop or be prohibited from enforcing the orders.  The solicitors and so-called related and all other parties are not joined to this summons so I do not have to consider making any order against these persons. In addition, the defendants seek an RAO and RPO against the plaintiff.  The defendants claim that there is urgency in the present application to prevent the plaintiff from recovering possession and selling the properties belonging to the defendants.

4.  A preliminary point has been taken that the affirmation of Li Man-kit filed on behalf of the plaintiff should not be admissible as he is not a party to the present proceedings.  I do not accept this argument.  Mr Li is a witness for the plaintiff and a witness can provide evidence in an interlocutory application by way of affirmation on behalf of the plaintiff. But even if I were to disregard Mr Li’s affirmation altogether, it can be seen that the evidence of the defendants is not sufficient to support any of their applications.

Injunction Application

5.  I have read the supporting affirmations of the defendants and their written submission and every summons and supporting affidavit for those summonses referred to in Master Hui’s orders.  It is quite clear that the defendants feel aggrieved by the orders made against them, ranging from procedural error to merits or lack of merits.  For example, they claim that there was no basis for Master Hui to grant interest and they complain about the procedure before Master Hui in that they were not given the opportunity to respond.  The complaint concerns the rate of interest and period covered.  They assert that the amendments were obtained by fraud or misconduct on the part of the plaintiff.  

6.  All of these complaints go to the merits of the orders.  The proper application should have been an appeal against the orders or a stay of execution on appeal instead of an injunction.

7.  I have nevertheless considered the appropriateness of an injunction.  The orders are valid until set aside on appeal and ought to be complied with within the time specified in the order.  If no time is specified, the time for compliance is usually forthwith.  The defendants appear to be asking for an interim injunction which they say is urgent.  It is noteworthy that they are seeking not to preserve the plaintiff’s assets but their own assets.  Assuming this injunction is of the type that falls within the American Cyanamid situation, being an interim injunction, I have considered the test set out in American Cyanamid. 

8.  In my view, there is no serious issue to be tried on the claim since the substantive issue under the originating summons has been resolved by the orders.  The counterclaim is yet to be tried.  They do not affect the validity of the orders.  There is not shown to be any risk of dissipation of assets on the part of the plaintiff.  The balance of convenience lies in not denying the plaintiff of the fruit of their judgment and in not granting an injunction. The application for an injunction is therefore dismissed.

9.  Separately, I have considered the alternative of a stay of execution of the orders as invited by Madam Leung.  However, there is no appeal against the orders and therefore the court should not consider a stay of execution pending appeal.

10.  Furthermore, if the defendants are relying on Order 45 or 47 of the Rules of the High Court in seeking a stay, they have not set out the evidence in support.  Once again, I do not see why the plaintiff should be denied the fruit of their judgment.  A stay is refused.

RAO or RPO

11.  There are no bases for issue of RAO or RPO either.  The defendants have not provided any facts in support of these applications.  There is no evidence of the plaintiff abusing the process either by persistently making unwarranted applications to the court in the present case (see Hong Kong Civil Procedure 2017, Vol 1, PD11.3, §5) or by seeking persistently to re-litigate in fresh proceedings without viable legal grounds matters which have already been determined by the court (Hong Kong Civil Procedure 2017, Vol 1, PD11.3, §8).  There is simply no evidence that the plaintiff has been making applications to the court that were unwarranted or were persistent.  So far, the applications made were for costs and have been adjudicated upon by the court.  The evidence provided by the defendants in their supporting affirmations simply failed to demonstrate how all the elements constituting abuse have been met.  An RAO is therefore not justified.

12.  In respect of RPO, Madam Leung refers to two previous claims at the Small Claims Tribunal wherein, she asserts, that the plaintiff’s claims were dismissed.  However, the substance of those claims or orders of the Tribunal have not been placed before this court.  There is simply no way in which the court can assess if the plaintiff has re-litigated matters that have been adjudicated upon.  An RPO is not justified.

13.  None of the applications set out in the summons dated 13 January 2017 have been established or are justified.  I therefore dismiss the summons.

(Submissions on costs)

14.  I summarily assess and allow the costs at $10,000, to be paid by the defendants to the plaintiff within 14 days.