ON TAK DEVELOPMENT LTD. and Another v. NG WOON TONG and Another

1996, No.MP1004

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application by way of originating summons dated 23 March 1996 for a declaration that the Deed exhibited to the supporting affirmation is sufficient for the purpose of rectifying an error made in the Assignment of various properties including a particular car park in the Basement of Hong Kong Industrial Centre.

2. By way of background, this matter came before the Court as a result of the following events. In 1988 the 1st Plaintiff assigned Car Park 95 to the 1st Defendant by Assignment No.3608802. The 1st Defendant was registered as the owner on 29 January 1988. On 4 December 1989, as a result of an internal re-organisation, the 1st Plaintiff assigned various properties to the 2nd Plaintiff which was a company within the same group. Unfortunately, in the Deed of Assignment two mistakes occurred. The first was that Car Park 95 was assigned instead of Car Park 89 and the second mistake was that the plan of Car Park 95 instead of the plan of Car Park 89 was annexed to the Assignment. Following the Assignment from the 1st Plaintiff to the 2nd Plaintiff which contained the errors and notwithstanding the fact that the 1st Plaintiff, having assigned away all its interest in Car Park 95 in 1988 and therefore had no estate or interest in Car Park 95 that it could possibly assign to the 2nd Plaintiff, the Land Registry registered the 2nd Plaintiff as the registered owner of Car Park 95 on 17 January 1990.

3. When the mistakes were discovered on 29 July 1993 the 1st and 2nd Plaintiffs entered into a Deed of Rectification and Confirmation No.5759385 to correct the error by substituting Car Park 89 for 95 in the earlier conveyance and confirmed the assignment of Car Park 89 to the 2nd Plaintiff. On 30 July 1993, the 1st Defendant assigned Car Park 95 to the 2nd Defendant.

4. The Land Registry not only refused to register the Deed of Rectification and Confirmation against Car Park 95, it apparently insisted that the 2nd Plaintiff re-assign Car Park 95 to the 1st Plaintiff. This stance of the Land Registry is clearly untenable: as the 1st Plaintiff no longer had any estate or interest in Car Park 95 at the date of its purported Assignment of Car Park 95 to the 2nd Plaintiff, no estate or interest in Car Park 95 could have vested in the 2nd Plaintiff that could be reassigned back to the 1st Plaintiff. The position of the Land Registry defies comprehension.

5. In any event, there is a refusal by the Land Registry to register the Deed of Rectification and Confirmation against Car Park 95 notwithstanding the obvious error in the Land Registry's records, where the 2nd Plaintiff is shown to be the registered owner of Car Park 95 as of 17 January 1990. Clearly, the matter has to be rectified and the registration of this Deed of Rectification and Confirmation against the title to Car Park 95 would resolve the matter without the Court's intervention.

6. These proceedings have been brought in order to satisfy the wholly unreasonable demands of the Land Registry : it insisted that a court order to the effect that the mistakes could be rectified by this Deed of Rectification and Confirmation be obtained before it would register the Deed against Car Park 95. So much for the history relating to the application.

7. This matter was listed as a Chambers' application and it came before me as such. The relief that is sought is the substantive relief claimed in the originating summons. For reasons referred to below, the matter should really have been set down for hearing in open court. As it was not practicable to adjourn the matter for hearing in open court because the parties before me were solicitors rather than counsel, I heard the matter in Chambers but adjourned the hearing to deliver this judgment in open court.

8. There appears to be a widespread misunderstanding of the practice relating to originating summonses. Matters are listed for hearing in Chambers when they should be heard in open court. I have recently had occasion to consider this in Mayluck Investment Ltd. v. Lee Yih Ping, M.P.1537 of 1995. As explained in that case, originating summonses are heard in Chambers only in special cases such as the protection of the interests of infants or disabled persons or the protection of trade secrets or the security of the state. It is not in the public interest for originating summonses relating to other matters to be heard behind closed doors. I can only repeat what I said in that judgment and I urge the legal profession to take note of and abide by originating summons procedure.

9. Turning to the matter before me, I will grant the declaration sought. As noted above, this application was wholly unnecessary and a waste of time, effort and money on the part of all concerned but administrative proceedings aside, the Plaintiff had no real option given the intransigence of the Land Registry in this matter. That the court's time should be taken up in this manner is to be deplored. The Land Registry should ensure that its "demands" that court orders be obtained are not made without good reason.

10. The costs of these proceedings of the 1st and 2nd Defendants are to be paid by the Plaintiff to be taxed if not agreed and I further order that the 1st and 2nd Plaintiffs indemnify all the stopped fees which may be imposed by the Land Registry as a result of the withholding of registration of Assignment Memorial No.5760611 in favour of the 2nd Defendant pending the registration of the Deed.

(Doreen Le Pichon)

Judge of the High Court