|
HCMP001559/1998
HCMP 1559/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1559 OF 1998
----------------------
|
IN THE MATTER of the land and premises known as All That 1 equal undivided 23rd part or share of and in All That piece or parcel of ground registered in the Tsuen Wan New Territories Land Registry as Section A of Lot No. 2146 in Demarcation District No. 449 and of and in the messuages erections and buildings thereon now known as Wah Sing Building Block A Nos. 207/211 Sha Tsui Road together with the sole and exclusive right and privilege to hold use occupy and enjoy All That Shop B on the Ground Floor of the building ("the said premises").
AND IN THE MATTER of the sale and purchase agreement of 16th October 1997 of the said premises and made between Hanfai Properties Limited, as the vendor, and Multi-Source Development Limited, as the purchaser ("the said sale and purchase agreement").
AND IN THE MATTER of Section 12 of the Conveyancing and Property Ordinance, Chapter 219, Laws of Hong Kong.
|
----------------------
| BETWEEN |
|
|
|
MULTI-SOURCE DEVELOPMENT LIMITED |
Plaintiff |
|
|
|
|
AND |
|
|
|
|
|
HANFAI PROPERTIES LIMITED |
Defendant |
----------------------
Coram : Hon. Godfrey, J.A. in Chambers (sitting as an additional Judge of the Court of First Instance)
Date of hearing : 29 July 1999
Date of judgment : 29 July 1999
----------------------
J U D G M E N T
----------------------
1. This is an application to vary an order as to costs made by Master Muttrie on 24 June 1999, when setting aside a default judgment made in favour of a purchaser in proceedings against a vendor for return to the purchaser of a $3,000,000 deposit paid by the purchaser to the vendor under a contract for the sale of land. The proceedings had been commenced by originating summons, pursuant to section 12 of the Conveyancing and Property Ordinance, Cap. 219.
2. The default which led to the judgment was a default on the part of the defendant's solicitors, who have very properly accepted that any order for costs made which might otherwise have been made against the defendant should be made instead against themselves. The Master made an order that all the plaintiff's costs of the application to set aside the default judgment should be paid by the defendant's solicitors.
3. The solicitors now object to this order, on the ground that it had earlier been decided by Yuen J., at the initial hearing of the originating summons, that the defendant's defence had a realistic prospect of success.
4. This decision is said to have been made when Yuen J. concluded that the proceedings raised disputes of fact which were unsuitable for resolution on an originating summons, and directed that the proceedings should continue as if commenced by writ. No application had been made by the plaintiff to Yuen J. for summary judgment on the originating summons under Order 28, rule 4(1) of the Rules of the High Court. She had not decided anything.
5. In these circumstances, I cannot see how the view of the judge, that the proceedings raised disputed questions of fact unsuitable for resolution on originating summons, can be equated with a finding by the judge that the defendant's case had a realistic prospect of success. The two seem to me to be totally different matters.
6. I shall therefore refuse to disturb the order of the Master, and this application will accordingly be dismissed with costs.
|
(Gerald Godfrey) |
|
Justice of Appeal |
Representation:
Mr. K.M. Chong, instructed by Messrs. Chung & Partners, for the Plaintiff
Mr. Benjamin Chain, instructed by Messrs. So & Co., for the Defendant
|