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HCMP 869/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 869 OF 2006
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IN THE MATTER of ALL THOSE 53 equal undivided 700,000th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as THE REMAINING PORTION OF INLAND LOT NO.8566 And of and in the messuages erections and buildings thereon known as KORNHILL TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT A on the 2ND FLOOR of BLOCK 5 of KORNHILL |
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and |
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IN THE MATTER of a Deed of First Legal Charge dated the 4th day of January 2005 and registered in the Land Registry by Memorial No.UB9467806 |
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and
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IN THE MATTER of Order 88 of the Rules of High Court, Cap.4 |
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BETWEEN
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GE CAPITAL (HONG KONG) LIMITED |
Plaintiff |
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and |
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NGAN TSE LEUNG |
Defendant |
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Before: Deputy High Court Judge L. Chan in Chambers
Date of Hearing: 25 January 2007
Date of Decision: 25 January 2007
Date of Reasons for Decision: 31 January 2007
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REASONS FOR DECISION
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1. I heard the Defendant’s appeal on 25 January 2007 and dismissed it with costs with reasons reserved. These are my reasons.
2. The Defendant appealed against an order of the Registrar made on 15 December 2006.
3. The order was made in a mortgage action which required the Defendant to pay the Plaintiff HK$1,365,211.55 together with interest and to deliver up to the Plaintiff vacant possession of the charged property.
4. The originating summons was issued on 2 May 2006. The monthly instalments payable under the legal charge were due on 10 of each month.
5. In the appeal, the Defendant told me that he had paid the January 2006 instalment of $8,275.75 on or before 13 February 2006. He produced a letter issued by the Plaintiff on 13 February 2006 confirming payment of this sum had been made on 11 February 2006. The February instalment was at $8,473.32 and he paid $8,297 on 20 February 2006 to discharge almost the whole of it. He paid the March instalment duly on 10 March 2006.
6. For the April instalment at $8,494.57, he paid the same on 21 April 2006.
7. However, before the May instalment of $8,713.79 was due on 10 May 2006, the Plaintiff had already issued the originating summons against him on 2 May 2006. He paid the May instalment on 1 June 2006.
8. Though he was indeed late for the May instalment, the originating summons was pre-mature and the Registrar should not have made the order requiring him to make payment and delivery up vacant possession of his flat. He also alleged that a Ms Vivian Yuen had told him that the Plaintiff had a grace period of 45 days for its customers. This was denied by Ms Yuen on affirmation.
9. Regarding the payments, the Plaintiff agreed that the Defendant had paid the sums as alleged on 20 February 2006, 21 April 2006 and 1 June 2006 but denied that there was any payment on 11 February 2006 or on or before 13 February 2006 or on 10 March 2006.
10. Mr Chan On Chi of the Plaintiff explained in his 2nd affirmation that the letter dated 13 February 2006 with issued by the Plaintiff to the Defendant in anticipation of payment by auto-pay. It was later discovered that there was no such payment from the Defendant as anticipated. Mr Chan also produced an internal report detailing all the customers who had failed to effect payment by auto-pay on 11 February 2006 and the Defendant was named in the report as one of the defaulters.
11. Regarding the alleged payment on 10 March 2006, the Plaintiff has gone through its account for March 2006 for the whole of March 2006 and could not find any such payment.
12. I then asked the Defendant to produce the bank statement or bank account passbook to prove that the sum of $8,275.75 had indeed been debited from his account on 11 February 2006, but he was unable to produce any. I also asked him to produce some documentary evidence to support his assertion that he had made the March 2006 instalment promptly on 10 March 2006. He again could not produce any such document. He at times seemed to suggest that payment was made by someone on his behalf and he had yet to figure it out.
13. If payment should have been effected by auto-pay, it would have been easy to prove it with bank document. Even if payment was by deposit of cash, as the Defendant alleged for 10 March payment, it is still not difficult to find some documentary proof to show the source of fund and/or the fact of payment.
14. I find that the Defendant’s story wholly unbelievable.
15. In fact, the Registrar had on 10 October 2006 granted him leave to file evidence to prove these two payments. He did not file any and had not given any explanation for it. In the appeal, he seems to argue that the terms of the Registrar’s leave was unclear. I do not think so. If there was anything unclear, he would have short clarification. In any event, he told me this morning that he did not have any document to prove these two payments.
16. Regarding the alleged 45 days grace period, there is no such provision in the legal charge. I see no reason why Ms Yuen should have told him so.
17. In any event, since I do not accept that he had paid on 11 February 2006 or on or before 13 February 2006 or on 10 March 2006, when the originating summons was issued, he was already in arrears for the two instalments for March and April 2006. The March instalment had been outstanding for 53 days and the April instalment for 22 days. The March instalment was only paid on 1 June 2006, but that was too late.
18. In the circumstances, I saw no basis for the appeal and dismissed it with costs.
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(L. Chan)
Deputy High Court Judge |
Ms Liu Kit Sum Margaret, of Messrs Chong & Partners, for the Plaintiff
The Defendant, in person
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