ST HILAIRE, PAUL JOSEPH v. YEUNG TSANG YING YING SOPHIA

HCMP 769/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 769 OF 2010

----------------------

----------------------

----------------------

R U L I N G

----------------------

1.  I have decided that really an end must be put to this matter now.  This all goes back to an order made by the Registrar on 16 September 2008 in respect of this property and she set out a timetable for the completion of the sale from the plaintiff to the defendant.  There is evidence that the plaintiff did not in fact comply with the precise terms of the Registrar’s order because under (b) of the order, paragraph 3(2), the formal Agreement for Sale and Purchase was to be signed on or before 22 September 2008.  What would appear to have been a draft agreement was sent the following day and come the completion date of course nothing happened. The projected completion date under the learned Registrar’s order was 31 October and since then the matter has been going round in circles.

2.  On 9 May 2009, the defendant then lodged the order with the Land Registry and that has put an end to any hope that the plaintiff might have had to sell this property.  There were two other attempts by the Plaintiff to sell to this defendant which came to nothing, through no fault of the plaintiff, and today the matter comes before me. 

3.  Procedurally, this is a 15 minutes appointment for directions at which the defendant has appeared. The 15 minutes has now run to an hour and 50 minutes because it struck me on my initial reading of the papers that this matter needed a proper and early resolution and whilst it may be said, and I think the defendant does say this, that she had only anticipated a 15 minute hearing and she says that her lawyers are not ready and she has not got the papers, the fact is she has given a very thorough account of herself and I have read everything that she has lodged with the court, including a long statement which runs to over 20 pages and today another document headed “Statement of Defence”. 

4.  But when one looks at this, the fact is that there is no prospect of this lady demonstrating that the plaintiff is in breach of the learned Registrar’s order and certainly come early November, or at the very latest 8 December, the plaintiff was entitled to terminate this matter which he did by letters from his solicitors.  In explaining matters to me, the defendant has said she did not have all the finance ready by 31 October, she is seeking to argue that she should have had another 15 days, but when one looks at this and the whole history of this matter, it has been going on now for 21 months since the Registrar’s order, the defendant has been quite happy to sit back and rely on the registration with  the Land Registry and the plaintiff is now stuck with this property.  Two further attempts were made to convey it to her, nothing came of it, and the time really now has come for a strong order to be made.

5.  In view of the fact that I am satisfied that the defendant would have no defence to this summons if I were to adjourn it for a full hearing, I have decided that the correct order to make is as appears in the draft order which Mr Cheng has shown to me, save that I do not think it is necessary for me to make an order setting aside the order of the Registrar, that order was a perfectly good order, if I may respectfully say so, but the appropriate course is to give the declaration at paragraph 2 that the plaintiff validly terminated the Sale and Purchase Agreement of 28 January 2008 which was the one that the Registrar was dealing with on 16 September 2008, and if that is right then there can be absolutely no justification for the registration with the Land Registry.

6.  And so I will make an order in terms of paragraph 3 that the defendant do forthwith and at her own cost vacate that registration and there must be inevitably an order for costs in favour of the plaintiff in this matter.

7.  Certificate for counsel.