TAN WAI KEE v. MARSPAN LTD AND ANOTHER

HCA 1852/2020 & HCA 153/2021
(Heard together)

[2022] HKCFI 2577

HCA 1852/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1852 OF 2020

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BETWEEN

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HCA 153/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 153 OF 2021

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BETWEEN

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(Heard together)

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JUDGMENT (NO.2)

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1.  On 10 December 2021, I handed down my Judgment (“Judgment”) in the trial of (a) the mortgagee action in HCMP No. 1484 of 2019 (“2019 Proceedings”) and (b) preliminary issues in HCA No. 1852 of 2020 (“2020 Action”) and HCA No. 153 of 2021 (“2021 Action”). For convenience I will adopt the nomenclature in the Judgment herein.

2.  By the Judgment, I found in favour of CS Credit that it was a bona fide purchaser for value of the Property without notice of either Tan’s or Far East’s alleged equitable interests. The net result is that CS Credit is entitled to vacant possession of the Property and takes free of Tan’s and Far East’s alleged beneficial interests. On that basis I gave judgment in favour of CS Credit in the 2019 Proceedings that (inter alia) Marspan do deliver up to CS Credit vacant possession of the Property.

3.  Far East and CIE have filed a Notice of Appeal against the Judgment on my finding in §2 above; Tan has not appealed against the Judgment.

4.  By summonses issued on 14 June 2022, CS Credit seeks dismissal of the 2020 Action (issued by Tan) and the 2021 Action (issued by Far East and CIE), on the basis that my finding in §2 above leaves no further issue to be determined in the respective claims against it.

5.  On 7 July 2022, I directed that Tan and Far East/CIE should indicate whether they oppose CS Credit’s application, and if so such application is to be determined on the papers.

6.  By letters dated 20 July 2022, solicitors for Tan and Far East/CIE respectively stated they would oppose CS Credit’s application. However, on 5 August 2022 (deadline for Tan and Far East/CIE to file their written submissions in opposition), Tan’s solicitors informed the Court that they have no instructions from Tan on this application and Far East/CIE’s new solicitors on record stated they now take a neutral stance. In other words, CS Credit’s application is essentially unopposed.

7.  Order 1B, rule 1(2)(k) of the Rules of the High Court expressly confers power on the Court to dismiss or give judgment on a claim after a decision on a preliminary issue.

8.  Such power is given effect to by Order 33, rule 7 of the Rules of the High Court, which provides that:-

“If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.”

9.  I consider it appropriate to exercise my power under Order 33, rule 7 to dismiss the respective claims against CS Credit in the 2020 Action and the 2021 Action. The findings I have made in the Judgment vis-à-vis CS Credit has completely disposed of the cause Tan and Far East/CIE have against CS Credit; the remaining issues to be determined in the 2020 Action and the 2021 Action concern the alleged beneficial interests of Tan and Far East in the Property respectively (see Judgment §4(1)-(2)) and would not have affected the determination of the cause against CS Credit in any way.

10.  As to costs:-

(1) I direct that costs of the summonses in §4 above should be borne by Tan and Far East/CIE respectively. Solicitors for CS Credit have invited them to consent to dismissal of the 2020 Action and the 2021 Action which was rejected, and as can be seen from §6 above they continued to resist the application up to the time they were due to file written submissions in opposition. I further direct that there be a certificate for counsel for taxation purposes.

(2) As for costs of the 2020 Action and 2021 Action, I direct that costs of the same be to CS Credit.

11.  I further direct that final judgment in favour of CS Credit in the 2020 Action and the 2021 Action be drawn up as per the drafts submitted by CS Credit.