|
HCMP001175A/2000
HCMP 1175/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1175 OF 2000
____________
|
IN THE MATTER of the property known as ALL THOSE the estate right title and interest of ALL THAT piece or parcel of ground registered in the Yuen Long New Territories Land Registry as SUBSECTION 40 of SECTION L OF LOT NO.4665 in DEMARCATION DISTRICT NO.104 together with the building erected thereon or some part thereof (House 37, 5th Street, Section L, Fairview Park, Yuen Long, New Territories) |
|
|
|
and
|
|
|
|
IN THE MATTER of an Indenture of Legal Charge dated 7th July 1997 and registered in the Yuen Long New Territories Land Registry by Memorial No.777636 |
|
|
|
and
|
|
|
|
IN THE MATTER of a Guarantee dated 5th July 1997 |
|
|
|
and
|
|
|
|
IN THE MATTER of Order 88, The Rules of the High Court |
| BETWEEN |
|
|
|
YU TAI HING COMPANY LIMITED |
Plaintiff |
|
|
|
|
AND |
|
|
|
|
|
RIGHTAN TRADING LIMITED |
1st Defendant |
|
SO YAN YAN |
2nd Defendant |
|
SO SO HEUNG |
3rd Defendant |
____________
Coram: Hon Chung J in Chambers
Date of Hearing: 6 June 2001
Date of Decision: 6 June 2001
_______________
D E C I S I O N
_______________
Introduction
1. This is D3's appeal against the Order of the Master dated 16 March 2001. That order dismissed D3's summons dated 23 February 2001 which asked for:
(1) the service of the originating summons dated 3 March 2000 and the notice of appointment for hearing the originating summons dated 5 May 2000 to be set aside for irregularity;
(2) the setting aside of the Master's order dated 20 June 2000 whereby the Master entered monetary judgment against the 3 defendants (including D3) and an order for possession against the property the subject matter of a legal charge dated 7 July 1997;
(3) all proceedings in HCMP 335of 2001 to be stayed pending the determination of the said summons.
2. The background leading to the said summons can be found in the Judgment of S Kwan DJ (as she then was) dated 6 December 2000. Briefly, by the said legal charge dated 7 July 1997, D1 mortgaged the suit property to the plaintiff. By a document described as a guarantee dated 5 July 1997, D2 and D3 agreed to stand as guarantors of D1's debt under the legal charge. As will be set out in more detail below, D3 now disputes the validity of that document which she admittedly signed.
3. D1 defaulted in payment. The plaintiff issues the originating summons herein under RHC O. 88 seeking, inter alia, an order of possession of the suit property and monetary judgment. On 20 June 2000, the Master granted an order which now forms part of the subject matter of this appeal. Further, on 4 July 2000, the plaintiff applied to the Master, and was granted (on an ex parte basis), a charging order nisi against 2 properties registered in D3's name. D3 filed an affirmation on 1 August 2000 to oppose the application to make the said charging order absolute. The only ground put forward therein was an alleged agreement to compromise said to have been made between D3, D3's husband Mr Ip Lam On and the plaintiff. There is no need to go into the details of that application save to say that the Master made a charging order absolute against D3 on 16 November 2000. D3 appealed against that order. In the said Judgment of 6 December 2000, S Kwan DJ dismissed that appeal.
This appeal
4. The present appeal dated 20 March 2001 seeks the same relief sought in D3's said summons dated 23 February 2001. It is usually unnecessary to set out the grounds of appeal in a Notice of Appeal issued under O. 58. D3 has however done so and the grounds set out in the Notice of Appeal include a complaint that the Master erred in refusing to give leave to D3 to file a further affirmation in support of her application, that the Master erred in concluding that para. 3 of D3's affirmation dated 1 August 2000 is inconsistent with para. 6 of D3's affirmation dated 24 February 2001 and that D3's application was not made within a reasonable time.
5. In the skeleton argument of counsel for D3, 2 grounds are relied upon in this appeal:
(1) the service of the originating summons and the Notice of Appointment to hear the originating summons should be set aside for irregularity;
(2) there are merits in D3's defence that the doctrine of non est factum is applicable to the so-called "guarantee" signed by her.
These grounds will be dealt with under separate headings below.
The alleged irregular service
6. O.2 r.2(2) requires the grounds of objection to be stated in an application to set aside for irregularity. This has not been done in either the summons or the notice of appeal. Having said so, the grounds of objection can be gathered from D3's affirmation dated 24 February 2001 in support of this application and appeal. No objection has been raised by the plaintiff in relation to O.2 r.2(2) as such and this point is not considered further.
7. In an affidavit of Poon John dated 15 March 2000, he deposed that service of the originating summons was effected on D3 on 7 March 2000 by inserting the court documents through the letter box of the suit property which was said to be the last known address of D3. In another affidavit of Poon John dated 23 May 2000, he deposed that service of a number of related court documents including the notice of appointment for hearing the originating summons was effected on D3 on 6 May 2000 by inserting them through the said letter box.
8. In the affirmation dated 24 February 2001, D3 deposed that she did not receive any of the said court documents. This is because on 1 February 2000, she entered into a 2-year tenancy agreement relating to the suit property with a tenant (from 1 February 2000 to 31 January 2002). Further, on about 3 February 2000, D3 sent a letter to the plaintiff informing them she had moved out of the suit property and gave a new address to the plaintiff. In these circumstances, D3 claims that the plaintiff knew at least since February 2000 that the suit property was not her last known address.
9. In a 4th affidavit of Li Yuk Hing Vivian dated 13 March 2001 filed by the plaintiff. Ms Li deposed that the plaintiff never received the said letter of 3 February 2000. Further, the plaintiff refers to the previous proceedings relating to the charging order (which covered the period from about the beginning of August 2000 to about December 2000) and deposed that the court documents relating to the application for a charging order absolute was served on D3 at the suit property by ordinary post on 19 July 2000. Those documents came to D3's attention and resulted in D3 filing an affirmation in opposition on 1 August 2000.
10. In these circumstances, I agree with the plaintiff and conclude that D3's allegation that the address at the suit property was not her last known address in March 2000 or May 2000 is unbelievable and is rejected. For the above reasons, I do not find the service of process herein to be irregular.
Delay and waiver of the irregularity
11. Moreover, D3 has not explained when and how she first came to know of the Master's order dated 20 June 2000. Having rejected D3's assertion regarding irregular service, I am entitled to, and do, infer that the relevant court documents came to her notice in March 2000 and May 2000 respectively. I therefore conclude (and, if necessary, would agree with the Master's conclusion) that D3's summons dated 23 February 2001 (taken out about 8 months after the Master's order dated 20 June 2000) was not made within a reasonable time.
12. In any event, as D3's counsel fairly accepts in this appeal, D3 must have known of the order of 20 June 2000 by September 2000. There was therefore a delay (which I find to be unreasonable) of about 4 to 5 months (from about September 2000 to February 2001).
13. Further, since D3 has notice of the plaintiff's application resulting in the order of 20 June 2000 from September 2000 onwards, I agree with the plaintiff's argument that D3 has "taken fresh steps" in opposing the plaintiff's application for a charging order absolute (from about August 2000 to about December 2000) within the meaning of O.2 r.2(1).
The alleged non est factum defence
14. D3 asserted in her affirmation of 24 February 2001 that the "guarantee" dated 5 July 1997 was not explained to her by Messrs Chan, Lau & Wai: see para. 6 thereof. I was informed by counsel for D3 that that solicitors firm represented the plaintiff. D3 further deposed that she was told by her husband and the solicitor's clerk that the documents were for D1 to borrow money and did not concern her. It was on that understanding that D3 signed the guarantee.
15. The plaintiff denies this allegation and points out that the allegation of non est factum was only raised for the first time in D3's said affirmation dated 24 February 2001. Further, the plaintiff refers to para. 3 of D3's affirmation dated 1 August 2000 where she said:
"I am a shareholder and Director of the 1st Defendant. On or about 7 July 1997 our company mortgaged a property known as House 37, 5th street, Section L, Fairview Park, Yuen Long, New Territories, Kowloon (Subsection 40 of S.L. of Lot No.4665 in DD No.104) to the Plaintiff for money facilities and I stood as one of the Guarantors of the said Mortgage." [emphasis supplied].
16. I agree with the plaintiff that D3's case of non est factum is not believable and thus reject it.
17. Having so concluded, it is unnecessary to deal with the plaintiff's argument that D3 is now estopped from re-litigating this point not having raised it in the earlier application for a charging order absolute.
Conclusion
18. By reason of the above matters, I find that the Master is entirely correct in making the order of 16 March 2001. The appeal is dismissed.
|
(Andrew Chung) |
|
Judge of the Court of First Instance |
|
High Court |
Representation:
Mr Richard Leung, instructed by Messrs Fairbairn Catley Low & Kong, for the Plaintiff
Mr David Y F Chum, instructed by Messrs Christopher K Y Wong & Associates, for the 3rd Defendant
|