THE INCORPORATED OWNERS OF YUEN LONG YIK FAT BUILDING v. CHAN LAP PONG

DCMP 1777/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1777 OF 2005

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Decision

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1. The Plaintiff (“P”) appeals against a Master’s dismissal of its application on the 18th August 2005 to sell the Defendant’s (“D”) share of land under a Charging Order.  The Charging Order was made absolute by this Court on the 15th April 2005: see Bundle at pages 41 and 42.  The arithmetic relating to sale and surplus is listed in Bundle pages 19 and 20.  Therefore, subject to a legal charge by a G.E.Capital Ltd in preference to P’s interest on the same property, a sale would discharge D’s debt owed to P.  D is, as he has been, absent from hearings despite having been served notices to attend.

2. The Master refused P’s application on the 18th August 2005 because he considered that a sale of property worth close to $0.5M merely to pay off the charge of $5428.10 together with interest and costs, totalling at most only about $11,000, was disproportionate, and secondly, D might be pushed out from his matrimonial home. 

3. However from the Affirmation of Mr HO Kwan-chuen filed today, particularly in paragraph 3, the evidence is that D no longer uses the property as his matrimonial home.  Instead, a Nepalese man Mr Rai has been in occupation since July 2004.  D is still the registered proprietor of the property, and so I can see the position is either Mr Rai is a tenant renting from D, in which case D is receiving rent but defaulting his legal obligations regarding management and other fees, or Mr Rai is a trespasser.  Either way Mr Rai is in no better position than D in these proceedings.

4. The history of this case shows D to be an inert person who simply disregards his debt as well as any consequence in law.  I am satisfied that he is most unlikely to discharge the debt on his own volition, and P has no other means than to enforce the Charging Order by sale in order to recover his losses.  It is clearly unjust to a creditor who has been owed money since 6 years ago, who has acted properly and according to law, but who can see no light at the end of the tunnel if this Court continues to delay an obvious remedy which is ready and available. 

5. In all the circumstances I am of the view that a sale is appropriate and necessary.  Accordingly I grant the orders sought by the Plaintiff as stated in Bundle pages 93 and 94, with certificate for counsel.