XCHRX SHUN SZE YING v. LEE KA WAI YVONNE

HCA13961/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13961 OF 1999

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D E C I S I O N

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1. This is an application made on an urgent ex parte basis for a Mareva injunction. The facts disclosed in the affirmation of Madam Lee Chia Hsien, the next friend of Madam Shun Sze Ying (whom I shall referred to as "the Mother") showed that the Mother has been suffering from Alzheimer's disease, to the knowledge of an adopted daughter, the Defendant.

2. The land search records revealed that in June 1999, the Mother apparently signed an Agreement for Sale and Purchase and an Assignment of her property in favour of the Defendant, and the Defendant entered into a mortgage of the property in favour of a bank.

3. Madam Lee Chia Hsien was made aware of the sale on 9th July 1999 and she said two weeks were further needed for the obtaining of a copy of the documents in question. That was mid to end of July 1999. This was one and a half months ago. However, she has only today issued a writ and is now asking the court for a Mareva injunction against the Defendant.

4. It may or may not be that the Mother has a strong case against the Defendant. But the grant of a Mareva injunction on an urgent ex parte basis is one of the strongest weapons in the court's arsenal and should not be lightly deployed when the Plaintiff has sat on her rights for such a lengthy period, with no real explanation for the delay other than that Madam Lee Chia Hsien needed time to consider her decision whether to come to court.

5. Whilst the Court fully understands the need for a period of time for consideration of the consequences of litigation, especially of the consequences of applying to court for a Mareva injunction, one and a half months cannot be regarded as a reasonable time. It is well-established that Mareva relief must be sought with reasonable promptness, once all the facts on which the application is founded are known.

6. Further there is no evidence of any risk of the Defendant's dissipation of assets. Mr. Wan, counsel for the Plaintiff, submitted that since the Defendant had taken out the mortgage, that is evidence that she needed the funds. It does not necessarily follow that the Defendant has the proceeds of sale under her control, whether right from the start, or by virtue of control of a possible bank account which may or may not have been opened in the name of the Mother. The evidence on that is purely speculative at the moment.

7. In any event, whatever mileage the Plaintiff might have been able to make from the Defendant's need for funds from the mortgage in June, it is now nearly three months down the road, and if the Defendant had needed the funds in June of 1999, then presumably those funds for the most part would have been dissipated by now.

8. In my view, there is no ground for the Court in the present case to grant a Mareva injunction on an urgent ex parte basis in these circumstances and therefore, I would dismiss the application with costs, if any.