XCHRX HOLIDAY RESORTS (MANAGEMENT) CO. LTD. v. K.T.B. CO. LTD.

HCMP No. 391/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 391 OF 2000

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J U D G M E N T

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1. This is an appeal from an order made by Master Lam on 28 September 2000 whereby he ordered that the hearing of the Plaintiff's application by Concurrent Originating Summons issued on 18 February 2000 be adjourned sine die with liberty to restore after assessment of damages in High Court Action No. 2409 of 1999. He also ordered the Plaintiff to pay its own costs of these proceedings incurred up to 28 September 2000 except costs with regard to the application for leave to serve and the service of the Concurrent Originating Summons which were reserved.

2. The Plaintiff obtained final and interlocutory judgment on 23 November 1999. It was adjudged that the Defendant do pay the Plaintiff :

1. the sum of HK$141,830.00

2. the sum of HK$4,210.00

3. collection charges in the sum of HK$300.00

4. interest in the sum of HK$37,470.15 being interest at the rate of HK$1.00 for each HK$100.00 per month from the respective due date to 9 February 1999 and interest on the sum of HK$141,830.00 at the rate of HK$1.00 for each HK$100.00 per month from 10 February 1999 to the date thereof and thereafter at judgment rate until the date of payment; and

5. damages for costs of this application on solicitors and own client basis to be assessed

3. The Plaintiff obtained the Charging Order absolute on 5 January 2000. The Master came to the view that the Charging Order was also in respect of the sum which had not yet been assessed because of the final and interlocutory judgment given on 23 November 1999 which included para. 5 which was for damages for costs of this action on solicitors and own client basis to be assessed. This has not yet been assessed. However, looking at the Charging Order absolute, I agree with Counsel for the Plaintiff that the Charging Order absolute was only in respect of the specific sums and in respect of which judgment had been obtained including interest. The Charging Order absolute was not in respect of what has been termed as damages for costs of this action on solicitors and own client basis to be assessed. That is my view on the proper reading of the Charging Order absolute. That being so, there is no reason why the Originating Summons should have been adjourned pending assessment of costs which was the subject matter of para. 5 of the final and interlocutory judgment.

4. I am told by Counsel for the Plaintiff that the Plaintiff no longer seeks an order for possession. He simply seeks to enforce the Charging Order absolute by seeking an order for sale. That being so, it is not necessary to consider whether O. 88, r. 4 applies to the proceedings although it is arguable that this being an action to which rule 5A of O. 88 applies, by virtue of O. 88, r. 1, r. 4 does not apply. But in view of the fact that possession is no longer claimed, it is not necessary to consider that point.

5. In the circumstances, the appeal is allowed. The order of the Master is set aside. I make an order as follows :

1. that the property subject to the Charging Order absolute dated 5 January 2000 made in High Court Action No. 2409 of 1999 be sold by public auction;

2. that the conduct of the said sale be committed to the Plaintiff's solicitors Messrs. M. K. Lam & Co.;

3. that the reserve price for the property be fixed at HK$650,000.00;

6. I now have further evidence which was not available before the Master as to the valuation of HK$650,000 being a proper valuation.

7. I also order :

4. that any party to this action is to be at liberty to bid at the said sale;

5. that the proceeds of such sale be applied and discharged on what shall be due to the Plaintiff for the amount as stated in the Originating Summons and for its costs of this action and of all other proper costs charges and expenses incurred in connection with the said sale and any surplus be lodged in Court to the credit of this action subject to further order;

6. that the Plaintiff's solicitors be appointed to execute all necessary documents including the engrossment of the conveyance of the property for the purpose of carrying such sale of the property into effect;

7. that the Defendant do pay the Plaintiff its costs of this action including the application and this appeal, such costs to be taxed if not agreed;

8. that the parties be at liberty to apply; and

9. that unless within 14 days from the date of service of this order, the Defendant redeems the said Charging Order absolute and pays the Plaintiff's costs of the action the property be sold without further reference to the Court at the price of not less than HK$650,000.00.