XCHRX LAI YIN FUN v. WONG FAI KUN

HCMP 7967/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 7967 OF 1999

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D E C I S I O N

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1. This is an application made purportedly pursuant to s. 25A of the High Court Ordinance Cap. 4 which provides:

"(1) Where the Court of First Instance has given or made a judgment or order directing a person to execute any conveyance, contract or other document, ... then, if that person -

(a) neglects or refuses to comply with the judgment or order; or

(b) cannot after reasonable inquiry be found,

the Court of First Instance may ... order that the conveyance, contract or other document shall be executed ... by such person as the Court may nominate for that purpose." (emphasis supplied).

2. The Plaintiff applicant seeks an order from this Court to order the Defendant to execute an assignment in her favour. Alternatively, this application seeks an order in effect that the Registrar of the High Court is to do so on the Defendant's behalf.

3. The order based on which this application was made was however not made by the Court of First Instance but by His Honour Judge de Souza on 23 March 1994 in Suit No. 5057 of 1993 when he sat as a Judge of the Family Court. The Plaintiff applicant herein was the Petitioner therein and the Defendant was the Respondent therein.

4. S. 25A(1), Cap. 4 expressly refers to a judgment or order given or made by the Court of First Instance. This application therefore clearly does not fall within the ambit of s. 25A, Cap. 4.

5. It is strictly unnecessary to determine whether any other venue is open to the Applicant. I shall do so for completeness. S. 26 of the Matrimonial Proceedings and Property Ordinance Cap. 192 provides:-

"Where the court decides to make an order under this Ordinance ... under s. 6 or 6A -

(a) it may direct that the matter be referred to the Registrar of the High Court for him to settle a proper instrument to be executed by all necessary parties; and

(b) in the case of an order under s. ... 6 or 6A, it may, if it thinks fit, defer the grant of decree in question until the instrument has been duly executed."

6. In the content of this application, the words "the court" and "it" in s. 26 clearly refer to the Family Court: s. 2A, Cap. 192. Further, this construction is supported by, for example, s. 6(1)(a), Cap. 192. The order made by the Family Court on 23 March 1994 was one made under s. 6, Cap. 192.

7. According to the above provisions, the Family Court has the power to make appropriate consequential or supplemental orders. I understand that the present practice of the Family Court accords with these provisions, that is, if a litigant should encounter difficulties in obtaining a transfer of property after such an order has been made, he or she can make an application similar to the present one in the Family Court and obtain an order from the Family Court for such purpose.

8. This application is therefore wrongly made in this Court and should be dismissed without prejudice to the Plaintiff's right to take out an appropriate application in the Family Court.

9. It appears to me that this case falls within RHC Ord. 62 r. 8(1)(a). Mr Wong indicates that the Plaintiff's solicitors do not wish to be heard pursuant to Ord. 62 r. 8(2). In these circumstances, I will order that the Plaintiff's solicitors' costs of this application be disallowed as between them and the Plaintiff.