CHINA CONSTRUCTION BANK (ASIA) CORPORATION LTD v. LI KA YUET AND ANOTHER

HCMP 1858/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1858 OF 2006

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D E C I S I O N

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1.  This is a mortgage action.  The appellant appeals against an order for possession and an order for sale made by the Registrar on 30 January 2007.  The only ground of appeal is that the appellant has found a purchaser who is willing to pay $4.8 million for the flat in question.

2.  There was an earlier hearing on 11 May 2007 before the Yam, J where the appellant asked for an interim stay of the orders pending appeal.  He produced to the learned judge a provisional agreement dated 10 May 2007 for selling the flat at $4.7 million.  However, that agreement has not been pursued.

3.  Today he produces another agreement which is dated 12 May 2007 and for selling the flat at $4.8 million.  However, this agreement has not been signed by him or his wife.  His wife’s solicitors say that his wife would sign the agreement if he should move out of the property first and the bank should also consent to the sale. 

4.  The bank has made it quite clear that it would not be consenting to the sale of the flat by the appellant.  Mr Fung, for the bank, told me that the current market price of the flat is at about $5 million.  However, if the appellant should be able to introduce a purchaser offering $4.8 million, the bank would be willing to sell the flat to that purchaser at $4.8 million, as this sum is enough to cover the judgment debt plus interest up to date. 

5.  Since the bank is willing to sell the flat to the purchaser found by the appellant and at the price offered by this purchaser, I see no reason why I should stay the execution of the Registrar’s order for possession and order for sale.  I dismiss the appeal with costs against the appellant.

6.  Since the mortgage deed has provided for solicitor and own client costs and the hourly rate is reasonable, I therefore carry out gross sum assessment of the costs payable and order the appellant to pay the respondent costs assessed at $7,500.