YAN MEI and YAN DONG the Joint and Several Administrators of the Estate of FONG LAP CHUNG GEORGE, Deceased AND ANOTHER v. FONG LAP SHAN

HCA 1562/2022 &
HCA 104/2023
(Consolidated)

[2025] HKCFI 6437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS 1562 OF 2022 AND 104 OF 2023

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(Consolidated pursuant to the Order of
Master David Chan dated 15^th May 2023)

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D E C I S I O N

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I.  INTRODUCTION

1.  Before me is the Defendant’s Inter-Partes Summons filed on 9 December 2025 for an unless order that unless the 1^st Plaintiff shall comply with the interim payment order (the “Interim Payment Order”) made by Master Teresa Wu on 29 November 2024 and DHCJ Anthony HK Chan SC’s Order (the “Payment Order”) made on 31 October 2025 that the 1^st Plaintiff shall, within 21 days from 31 October 2025, pay the outstanding amount to the Defendant in the sum of HK$460,538 under the Interim Payment Order, the 1^st and 2^nd Plaintiffs’ (collectively the “Plaintiffs”) claim shall be dismissed and judgment shall be entered on the Defendant’s counterclaim, including delivery of vacant possession of the subject property to the Defendant.

II.  BACKGROUND

2.  The parties’ respective cases have been set out by Master Teresa Wu in §§4-10 of her decision (the “Master’s Decision”) granting the Interim Payment Order ([2024] HKCFI 3464). In gist, the 1^st Plaintiff, being co-administrators of the estate of the Deceased, claim that the Deceased (and therefore the estate of the Deceased) was the beneficial owners of the subject property, which they have been using and occupying, while the Defendant, the registered owner of the subject property denies. The 2^nd Plaintiff is one of the co-administrators in the 1^st Plaintiff, and the 2^nd Plaintiff has been residing in the subject property. The Plaintiffs seek a declaration of beneficial ownership in the estate’s favour and an order to transfer the legal title to the estate, while the Defendant counterclaims against the Plaintiffs for delivery of vacant possession of the subject property, mesne profits and other damages, including mortgage payments which the Defendant had been making.

3.  As said, on 29 November 2024, Master Teresa Wu made the Interim Payment Order against the 1^st Plaintiff. The interim payment was in relation to the mortgage payments. The reason for granting the Interim Payment Order was, in essence, that if the 1^st Plaintiff wins, the Deceased and its estate being the true owner would have to be responsible for the mortgage payments, and if the Defendant wins, the 1^st Plaintiff would be liable to pay mesne profits to the Defendant, who would have used part of the mesne profits to make the mortgage payments. In fact, the Plaintiffs did not dispute such liability before the Master, but only disputed quantum (see §§27(4), 30, 31, 33, 39 of the Master’s Decision).

4.  The Interim Payment Order was made. No appeal was made against that Order.

5.  There is dispute over whether the 1^st Plaintiff has complied with part of the Interim Payment Order, but there is no dispute that the 1^st Plaintiff has at today failed and/or refused to complied with it fully, if not partially. Therefore, the Defendant applied for an unless order by Inter-Partes Summons filed on 10 September 2025 (the “September Summons”). The unless order sought by the September Summons is the same as the unless order now being sought before me. On 31 October 2025, the September Summons was heard by DHCJ Anthony HK Chan SC, who refused to grant any unless order, but instead made the Payment Order.

6.  In his decision ([2025] HKCFI 5287) (the “October 2025 Decision”), his Lordship explained:-

(1)  The Defendant had not attempted other less draconian means to enforce the Interim Payment Order (§20).

(2)  “Counsel [for the Defendant] argues that unless order is the last resort. Other methods of enforcement would not be quick enough to bring about payment by the 1^st Plaintiff to stave off the bank’s action for default in mortgage repayment. But with respect, any suggestion that there is urgency because of the bank’s action seems to me to be a result of the Defendant not having applied for enforcement earlier” (§21).

(3)  “[I]t is in my view premature for the Defendant to have applied for an unless order without first resorting to other less draconian means available under our civil procedures” (§21).

(4)  The 1^st Plaintiff had no excuse not to comply with the Interim Payment Order. The 1^st Plaintiff’s alleged financial difficulties was not a good reason (§22).

(5)  The 1^st Plaintiff was aware that the Defendant was applying for an order that the 1^st Plaintiff had to comply with the Interim Payment Order within a specified time. (§23)

III.  THE PRESENT APPLICATION

7.  The present application is for the same unless order which DHCJ Anthony HK Chan SC refused to grant. Mr Andrew H.P. Lau, counsel for the Defendant, submits that the change of circumstance is the 1^st Plaintiff’s failure to comply with the Payment Order. He submits that the Payment Order should be regarded as the last chance for the 1^st Plaintiff, and this is now the right time to make sure that the Interim Payment Order and the Payment Order would be complied with by way of an unless order or else the Plaintiffs should be met with draconian consequences proportionate to repeated breaches of court orders.

8.  Ms Rowena Ng, for the Plaintiffs, submits that the fair resolution of the dispute in accordance with the parties’ substantive rights is the most important objective and failure to comply with the Orders should not deprive of the Plaintiffs of the right to such fair resolution. As regards the reason for the breach of the Payment Order, the 1^st Plaintiff’s evidence before me is still her financial difficulties, which has already been ruled by DHCJ Anthony HK Chan SC not to be a good reason at all. In any event, the alleged financial difficulties on the evidence are mere allegation without details. I do not see why such reason and such evidence would constitute any good reason.

9.  The 1^st Plaintiff’s draft affirmation made by the 2^nd Plaintiff (signed but not affirmed) also alleges that the 1^st Plaintiff tried to sell one of the properties of the estate to raise fund, but failed. However, a failed attempt is not a good reason for not complying with a court order. This may or may not be relevant if the present application is committal proceedings, but the present application is an application for an unless order only.

10.  Notably, the 1^st Plaintiff has adduced no evidence to explain the financial position of the estate, for example, whether the estate has some other assets. In gist, the draft affirmation only alleges that the 1^st Plaintiff had financial difficulties without providing any details, that the 1^st Plaintiff attempted to sell a landed property but failed, and that the 1^st Plaintiff would continue to try to sell the property.

11.  I bear in mind the legal principles in relation to unless order as expounded in Bruce James Stinson v Gu Ming Gao [2018] HKCA 10 at §58. I consider the following:-

(1)  There is no good reason for the 1^st Plaintiff to have repeatedly breached court orders. The 1^st Plaintiff must be met with appropriate measures, or else the 1^st Plaintiff may have got a misimpression that court orders are just mere paper tigers.

(2)  There are other enforcement means which the Defendant has not taken. Mr Lau submits that a charging order application would not be quick enough given that the mortgagee bank’s application for mortgage repayment will be heard next month. With respect, I agree with the observation made at §21 of the October 2025 Decision that “any suggestion that there is urgency because of the bank’s action seems to me to be a result of the Defendant not having applied for enforcement earlier”. Mr Lau submits that this observation is completely wrong. With respect, I do not accept such submissions. There has been no good explanation as to why enforcement action had not been taken earlier at all, when the Interim Payment Order was made back in 2024.

(3)  The Interim Payment Order was against the 1^st Plaintiff only. Although the 2^nd Plaintiff is one of the co-administrators in the 1^st Plaintiff, when the Interim Payment Order was made against the 1^st Plaintiff, it means that it is the estate of the Deceased that has to pay. The same is true in respect of the Payment Order. Therefore, I see no reason why the 2^nd Plaintiff, in her personal capacity, should be affected.

(4)  The payment in question arises from the Defendant’s counterclaim. Absent any special circumstances, in my view, the sanction in the unless order should be related to the counterclaim rather than the 1^st Plaintiff’s own claim.

(5)  The subject matter is landed property. I cannot say at this stage that the 1^st Plaintiff’s claim is unmeritorious at all. The sanction as sought by the Defendant would mean that without any trial giving the Plaintiffs a fair opportunity, the subject property would be awarded to the Defendant. The sanction, if it would come into effect, would be disproportionate. Mr Lau effectively submits that the 1^st Plaintiff’s repeated breaches of court orders should deprive the Plaintiffs of such a fair opportunity for just resolution, or that the Plaintiffs deserve such deprivation. I do not see that one has to be that extreme especially when, as explained above, the Defendant here also has himself to blame for not taking other enforcement actions earlier.

12.  Having considered the above, I think it is appropriate to impose an unless order, and the sanction in the unless order should affect the 1^st Plaintiff only.

13.  As to what sanction should be imposed against the 1^st Plaintiff, given the Interim Payment Order and the Payment Order were made on the Defendant’s counterclaim only, in my view, the sanction should be that the 1^st Plaintiff shall be debarred from defending against the counterclaim. I make it clear that if the 1^st Plaintiff would be debarred from defending against the counterclaim, the 1^st Plaintiff may of course still pursue their claim. But there is practical effect of debarring the 1^st Plaintiff from defending against the counterclaim. For example, the 1^st Plaintiff would not be able to defend against the Defendant’s counterclaim for damages and injunction against the 1^st Plaintiff (which the 1^st Plaintiff would otherwise be able to defend even losing their claim by adducing expert evidence on quantum and/or pray in aid some factors that would have impact in the court’s exercise of equitable jurisdiction to grant or not grant an injunction), and the 2^nd Plaintiff would presumably have to defend against the counterclaim against her in her personal capacity out of the 2^nd Plaintiff’s own pocket without any resort to the estate. For the avoidance of doubt, the real effect of the sanction against the 1^st Plaintiff only is something to be seen, but at least the above is what I can see preliminarily at this stage.

IV.  CONCLUSION

14.  In the circumstances, I make the following order:-

(1)  Unless the 1^st Plaintiff do pay the Defendant HK$460,538 by 4pm on 19 January 2026, the 1^st Plaintiff shall be debarred from defending the Defendant’s counterclaim.

(2)  The 1^st Plaintiff shall pay the costs of the present application to the Defendant on an indemnity basis, summarily assessed at HK$120,000, forthwith.