MORNING DEW FINANCE LTD v. WONG WING YAN AND ANOTHER

HCMP 296/2019

[2020] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 296 OF 2019

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DECISION

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1.  This is the application by the plaintiff (“P”) for variation of the Order for Sale I made on 30 October 2019 (the “Order for Sale”).

2.  I have read the affirmation of service of Yu Hung of 28 September 2020 and the 7^th affirmation of Fong Chi Fat.  I am satisfied that the present summons and the affirmation in support of Ng Po Wing Patrick filed on 2 September 2020 have validly been served upon the 1^st defendant (“D1”).

3.  The 2^nd defendant (“D2”) has (by letter of 4 September 2020 to this Court (copied to all other parties)) indicated that he has no objection to the application.  He has asked to be, and has been, excused from attending the present hearing.

4.  D1 appears this morning.  She acts in person.  She claims that she has been somehow been deceived.  She claims to have sought the assistance of a District Board Member, but that she has only recently been informed that that District Board Member does not know how to handle the situation.  She claims that she has also reported the matter to the police.  She seeks an adjournment of the application.

5.  The Order for Sale was made on 30 October 2019, nearly 1 year ago.  There has been no appeal against the same, nor any previous application for it to be set aside.  D1 (and D2) delivered up vacant possession of the Property to P on 4 December 2019, and repeated attempts for its sale pursuant to the Order for Sale have since been made.  The Property, but for the reasons explained below, could have been sold months ago and proceeds distributed.  No previous indication has been given by D1 indicating that she is seeking to contest the present application or otherwise to have it adjourned, and no evidence in support has been placed before this Court.  I refuse D1’s application to adjourn the present application.

6.  The Order for Sale permits and sets a time table for the Property concerned to be sold either by private treaty or by auction.  Minimum prices have also been directed.

7.  I have read the said affirmation of Ng Po Wing.  Despite attempts, the Property concerned could not be sold whether by private treaty or public action at the respective stipulated minimum prices of HK$9,500,000 and HK$9,200,000. 

8.  P has caused 2 updated valuations of the Property to be made by Prudential Surveyors (Hong Kong) Limited and CBRE Limited.  Their valuations were respectively HK8,800,000 and HK$9,000,000.

9.  Given the latest valuation of the Property, given the change of circumstances, and given the “liberty to apply” clause at §9 of the Order for Sale, I am satisfied that I have the jurisdiction to give parties further directions to effect the sale of the Property.  I am prepared to do so.  I am satisfied that giving parties further directions in the light of the change of circumstances is a better option compared with varying the Order for Sale, as P is seeking.  I have invited submissions from Ms Yeung, counsel for P, on the above, which she accepts.

10.  I accordingly give the following order and directions:

(1)     As the sale of the Property could not be effected in accordance with the directions given in the Order of 30 October 2019, the Property can now immediately be put to be sold by way of public auction or by private treaty in the open market at a selling price of not less than HK$9,000,000 (HONG KONG DOLLARS NINE MILLION) to start with, which may be lowered to HK$8,800,000 (HONG KONG DOLLARS EIGHT MILLION EIGHT HUNDRED THOUSAND) if sale at the minimum price of HK$9,000,000 cannot be effected within 3 months.  If the Property is to be sold by public auction, the said auction must be conducted by a licensed auctioneer firm approved by the Estate Agents Authority of Hong Kong by way of open market auction.

(2)     Save as aforesaid, the directions given in the Order of 30 October 2019 remain the same and valid.

(3)     Liberty to apply further.

11.  Costs of the application be to P and D2 in any event.