MASTER UNIVERSE DEVELOPMENT LTD v. MASS OCEAN INTERNATIONAL LTD AND OTHERS

HCA 1295/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1295 OF 2015

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HCA 1849/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1849 OF 2015

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HCA 1850/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1850 OF 2015

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D E C I S I O N

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I. INTRODUCTION

1.  Master Universe Development Limited (“MUL”) was the plaintiff in HCA1295/2015 and HCA1850/2015, and MUL’s related company Fortune Gain International Investment Limited (“FGIIL”) was the plaintiff in HCA1849/2015. MUL’s and FGIIL’s common director/shareholder was Chan Cheuk Yin Wendy (“CY Chan”). For convenience, HCA1295/2015, HCA1850/2015 and HCA1849/2015 are collectively referred to as the “Actions”.

2.  Since 1999 the 1^st defendant in the Actions Mass Ocean International Limited (“D1”) was/is the registered owner of the following pieces of land in San Tin, New Territories (“San Tin”): (a) the Remaining Portion of Section D of Lot No 372 in Demarcation District No 99 (“Lot372DRP” in “DD99”), and (b) the Remaining Portion of Lot No 742 and the Remaining Portion of Lot No 743 in DD99 (“Lot742RP” and “Lot743RP”).

3.  By 3 tenancy agreements all dated 23 February 2012 made between D1 as landlord and MUL as tenant (“1295/15 TAs”), D1 granted to MUL 3 tenancies each for a term of 10 years from 14 December 2011 to 13 December 2021 over (a) a portion of Lot372DRP coloured pink on Plan I annexed to the Endorsement of Claim (“EoC”) on the Amended Writ of Summons (“AWoS”) filed on 15 July 2015 at the monthly rent of $66,000 (“TA D1A”), (b) another portion of Lot372DRP coloured pink on Plans II and III annexed to the EoC at the monthly rent of $37,901 (“TA D1B”), and (c) Lot742RP and Lot743RP on Plans IV and V annexed to the EoC at the monthly rent of $11,000 (“TA D1C”).

4.  By a tenancy agreement dated 8 June 2012 made between D1 as landlord and FGIIL as tenant (“1849/15 TA”), D1 granted to FGIIL a tenancy over a portion of Lot372DRP coloured pink on the plan annexed to the Writ of Summons (“WoS”) filed on 14 August 2015 in HCA1849/2015 for a term of 10 years from 23 February 2012 to 22 February 2022 at the monthly rent of $37,901.

5.  By a tenancy agreement dated 30 May 2013 made between D1 as landlord and MUL as tenant (“1850/15 TA”), D1 granted to MUL a tenancy over a portion of Lot372DRP coloured pink on the plan annexed to the WoS filed on 14 August 2015 in HCA1850/2015 for a term of 8 years and 9 months from 1 April 2013 to 31 December 2021 at the monthly rent of $38,322.

6.  For convenience, the 1295/15 TAs, 1849/15 TA and 1850/15 TA are collectively referred to as “TAs”, and the lands let under the TAs are referred to as the “Subject Lands”. The 2^nd Schedule of each of the TAs set out D1’s obligation as landlord to renew the tenancy thereby granted for a further term of 10 years (“Renewal Obligation”).

7.  By 3 leases all dated 22 April 2015 made between D1 as landlord and the 2^nd defendant Grand Fusion Limited (“D2”), the 3^rd defendant Crown Spread Limited (“D3”) and the 4^th defendant Benefit Huge Limited (“D4”) respectively as tenant (collectively, “Leases”), D1 demised for a term of 10 years from 1 November 2015 to 30 October 2025 (a) Lot372DRP to D2 for a monthly rent of $330,000 (“D2 Lease”), (b) Lot742RP to D3 for a monthly rent of $60,000 (“D3 Lease”), and (c) Lot743RP to D4 for a monthly rent of $60,000 (“D4 Lease”).

8.  Mr Wong, solicitor for MUL and FGIIL, prepared a useful summary of the TAs and Leases which I gratefully adopt and reproduce below:

Action No	TA				Lease
	Date	Description of Land	Term	Rent (HK$)	Date	Description of Land	Lessee	Term	Rent (HK$)
1295	23.02.2012	Portion of Lot 372DRP	14.12.2011 to 13.12.2021	66,000	22.04.2015	Lot 372DRP	D2	01.11.2015 to 30.10.2025	330,000
1295	23.02.2012	Portion of Lot 372DRP	14.12.2011 to 13.12.2021	37,901
1849	08.06.2012	Portion of Lot 372DRP	23.02.2012 to 22.02.2022	37,901
1850	30.05.2013	Portion of Lot 372DRP	04.04.2013 to 31.12.2021	38,322
1295	23.02.2012	Lot 742RP and Lot 743RP	14.12.2011 to 13.12.2021	11,000	22.04.2015	Lot 742RP	D3	01.11.2015 to 30.10.2025	60,000
1295					22.04.2015	Lot 743RP	D4	01.11.2015 to 30.10.2025	60,000

9.  There was no dispute that (a) the TAs were written instruments affecting land and hence registrable under section 2 of the Land Registration Ordinance Cap 128 (“LRO”), (b) the Leases all dated 22 April 2015 were registered at the Land Registry within 2 days on 24 April 2015, and (c) the 1295/15 TAs and duplicates/counterparts of the 1849/15 and 1850/15 TAs (which were earlier in time) were subsequently registered in May 2015.

II.  SUMMONSES

10.  On 30 September 2015, D2, D3 and D4 (collectively, “D2-4”) in HCA1295/2015 and D2 in HCA1849/2015 and HCA1850/2015 filed the following summones (“1295/15, 1849/15 and 1850/15 Summonses” and collectively, “Summonses”) for the following reliefs:

Summons	Description
1295/15	(a)	the following questions of law be determined in favour of D2-D4, ie (i) whether the Leases had priority over the 1295/15 TAs by virtue of sections 3-4 of the LRO so that the legal estate vested in the Leases was not affected by any notice of the 1295/15TAs, and (ii) if the answer to (i) is in the affirmative, whether MUL had no right which it was entitled to assert against D2-4 to remain in possession of the relevant Subject Lands after 30 October 2015, and final judgment should be entered for D2-4 against MUL in terms of the counterclaim in HCA1295/2015;
	(b)	further or alternatively, the AWoS in HCA1295/2015 be struck out and MUL’s action be dismissed as against D2-4 on the ground that MUL’s Statement of Claim (“SoC”) disclosed no reasonable cause of action as against D2-4
1849/15	(a)	the following questions of law be determined in favour of D2, ie (i) whether the D2 Lease had priority over the 1849/15 TA by virtue of sections 3-4 of the LRO so that the legal estate vested in the D2 Lease was not affected by any notice of the 1849/15 TA, and (ii) if the answer to (i) is in the affirmative, whether FGIIL had no right which it was entitled to assert against D2 to remain in possession of the relevant Subject Lands after 30 October 2015, and final judgment should be entered for D2 against FGIIL in terms of the counterclaim in HCA1849/2015;
	(b)	further or alternatively, the WoS in HCA1849/2015 be struck out and FGIIL’s action be dismissed as against D2 on the ground that FGIIL’s SoC disclosed no reasonable cause of action as against D2
1850/15	(a)	the following questions of law be determined in favour of D2, ie (i) whether the D2 Lease had priority over the 1850/15 TA by virtue of sections 3-4 of the LRO so that the legal estate vested in the D2 Lease was not affected by any notice of the 1850/15 TA, and (ii) if the answer to (i) is in the affirmative, whether MUL had no right which it was entitled to assert against D2 to remain in possession of the relevant Subject Lands after 30 October 2015, and final judgment should be entered for D2 against MUL in terms of the counterclaim in HCA1850/2015;
	(b)	further or alternatively, the WoS in HCA1850/2015 be struck out and MUL’s action be dismissed as against D2 on the ground that MUL’s SoC disclosed no reasonable cause of action as against D2

11.  The Summonses were combined applications under Order 14A and Order 18 rule 19(1)(a) of the Rules of the High Court (“RHC”) for disposal of the claims by MUL and FGIIL against D2-4 on a point of law, striking out their claims against D2-4, and judgment on their counterclaim.

12.  On 26 October 2015, D2-4 in HCA1295/2015 and D2 in HCA1849/2015 and HCA1850/2015 filed 3 affirmations of D2’s director Ho Man Yi (alias Mandy Ho, “Ho”), and D2-4 in HCA1295/2015 filed affirmations of D3’s director Yu Ling Ling (alias Amy Yu, “LL Yu”) and D4’s director Chan Shuk Siu (“CS Chan”) in support of the Summonses (“Ho, LL Yu and CS Chan Affs”). On 30 November 2015, MUL in HCA1295/1015 and HC1950/2015 and FGIIL in HCA1849/2015 filed 3 affirmations of CY Chan in opposition (“CY Chan Affs”).

13.  At the hearing on 20 April 2016 (“Hearing”), Mr Yin, counsel for D2-4, and Mr Wong agreed to focus on HCA1295/2015 as it was agreed the Summonses would stand or fall together upon the outcome of the 1295/15 Summons. But for convenience, I have summarised the parties’ respective pleadings in HCA1849/2015 and HCA1850/1205 in Schedules A and B annexed to this Decision (“Schedules A and B”). The references to paragraphs in Schedules A and B are references to paragraphs in this Judgment.

III. PLEADINGS IN HCA1295/2015

14.  SoC filed on 30 July 2015  MUL claimed (i) it was/is in possession of the relevant Subject Lands let to it under the 1295/15 TAs as lawful tenant thereof, (ii) the Leases were sham transactions, and (iii) in purporting to execute the Leases and registering them at the Land Registry D2-4 acted in collusion and conspired with D1 (who acted wrongfully in breach of its obligation as landlord under the 1295/15 TAs) for the unlawful purpose of defeating and injuring the legal/equitable estate of MUL as tenant in possession of the relevant Subject Lands:

(a)	at all material times, Wong Sai Chung (D1’s sole director, “Wong”) was/is the person in effective control of all Ds;
(b)	Ho as D2’s sole director executed the D2 Lease on D2’s behalf;
(c)	LL Yu as D3’s sole director executed the D3 Lease on D3’s behalf;
(d)	CS Chan as D4’s sole director executed the D4 Lease on D4’s behalf;
(e)	LL Yu was/is a staff member of Wong and/or companies under his effective control, and she was/is a director of 16 companies of which Wong was/is a director;
(f)	Ho was/is a staff member of Wong and/or companies under his effective control, and she was/is a director of 4 companies of which Wong was/is a director;
(g)	LL Yu and Ho were/are the only 2 directors in respect of 7 companies as nominee of Wong and/or of companies under his control;
(h)	D3/D4 had the same registered office in Jordan, Kowloon and the same company secretary Smart Wit Consultancy Limited;
(i)	D3/D4 were newly incorporated companies acquired by or on behalf of Wong and/or were company(ies) under his effective control from the same shelf-company provider (GRL15 Limited), and LL Yu and CS Chan were both appointed directors of D3/D4 on 13 April 2015 for the purpose of executing the D3 and D4 Leases on 22 April 2015;
(j)	the Leases were all executed or to take effect at the same time and attested by the same solicitor Yeung Sui Hung on 22 April 2015 as part of a scheme orchestrated by Wong, and D2-4 as D1’s alter egos had or were imputed with the same actual knowledge which D1 had had of P’s interest under the 1295/15 TAs.

15.  MUL claimed D1’s wrongful breaches of the 1295/15 TAs put MUL at risk of suffering loss and damage, so on 12 June 2015 MUL commenced HCA1295/2015 against Ds to claim the following reliefs:

(a)	as against D1, a declaration that MUL was/is D1’s tenant in possession of (i) a portion of Lot372DRP under the terms of TA D1A, (ii) another portion of Lot372DRP under the terms of TA D1B and (iii) Lot742RP and Lot743RP under the terms TA D1C, all with the Renewal Obligation, and damages for breaches of the 1295/15 TAs;
(b)	as against D1 and D2, (i) a declaration that the D2 Lease was a sham transaction of D1/D2 acting in collusion for the purpose of defeating MUL’s interest as tenant under TA D1A and TA D1B and hence null and void against MUL, (ii) an order that the registration of the D2 Lease in the Land Registry be vacated, and (iii) damages for conspiracy to act in breach of trust and/or to injure MUL to be assessed;
(c)	as against D1 and D3, (i) a declaration that the D3 Lease was a sham transaction of D1/D3 acting in collusion for the purpose of defeating MUL’s interest as tenant under TA D1C and hence null and void against MUL, (ii) an order that the registration of the D3 Lease in the Land Registry be vacated, and (iii) damages for conspiracy to act in breach of trust and/or to injure MUL to be assessed;
(d)	as against D1 and D4, (i) a declaration that the D4 Lease was a sham transaction of D1/D4 acting in collusion for the purpose of defeating MUL’s interest as tenant under TA D1D and hence null and void against MUL, (ii) an order that the registration of the D4 Lease in the Land Registry be vacated, and (iii) damages for conspiracy to act in breach of trust and/or to injure MUL to be assessed.

16.  Defence and Counterclaim filed on 29 September 2015  Ds denied liability. Ds further denied the 1295/15 TAs were acts of and/or binding on D1, and they were “contracts which may be made on behalf of [D1] only in the manner prescribed by section 121(3) of the Companies Ordinance, Cap 622 [“New CO”] (or formerly by section 32(b) of the Companies Ordinance, Cap 32 [“Old CO”]), namely in writing signed by a person acting with [D1’s] authority ......”

17.  Ds claimed the Leases were “lawfully granted by [D1] in the right which a landlord possesses to make a demise of the reversion”, and were not sham transactions, and denied (a) the alleged purpose for execution of the Leases and their registration[1] could turn the transactions into shams and/or (b) Ds committed any actionable wrong merely by taking advantage of a situation, which the law provided, to defeat an earlier unregistered interest.

18.  By their counterclaim, Ds alleged that if (which they denied) MUL was/is in possession of the relevant Subject Lands, any right to such possession could only be based upon 3 separate written tenancy agreements relating to different parts of the Subject Lands respectively dated 26 April 2004 (“2004 TA”), 12 March 2005 (“2005 TA”) and 28 February 2006 (“2006 TA”) (collectively, “Old TAs”) whereby D1 agreed to let the relevant Subject Lands upon the terms/conditions therein, but all the Old TAs had expired by effluxion of time and/or were duly terminated by D1 by notice in writing prior to commencement of the terms created by the Leases.

19.  Ds further claimed sections 3-4 of the LRO gave priority to the Leases over the 1295/15 TAs registered after the registration of the Leases, and prevented the legal estates vested in D2-4 from being affected by any notice of the 1295/15 TAs, so MUL had no right (at least as against D2-4) to remain in possession of the relevant Subject Lands after 30 October 2015. Since MUL had no intention to quit and yield up any part of the relevant Subject Lands on or before 30 October 2015, and threatened/intended, unless restrained by the court, to remain in wrongful possession after such date, Ds counterclaimed against MUL for the following reliefs:

(a)	an injunction that MUL be restrained, whether by its directors, employees, agents, sub-tenants/licensees, contractors and whosoever, from staying in occupation or using any part of the relevant Subject Lands except for the orderly removal after 30 October 2015;
(b)	an order that MUL do deliver up vacant possession of the land coloured pink on Plans I, II and III and on Plans IV and V annexed to the EoC on or before 1 November 2015;
(c)	in the event MUL failed to comply with (b) above, an order that Ds shall be entitled to and be at liberty to forthwith re-enter the land coloured pink on Plans I, II and III and on Plans IV and V annexed to the EoC;
(d)	further or alternatively, an order for possession of the relevant Subject Lands;
(e)	mesne profits from 1 November 2015 until possession is delivered up at a rate not less than the rent payable under the Leases.

20.  Reply and Defence to Counterclaim filed on 27 October 2015 MUL claimed the 1295/15 TAs were signed on D1’s behalf by its manager Yu Kin Cheung(“KC Yu”) who was in charge of D1’s land matters in San Tin and who had D1’s actual authority in signing the 1295/15 TAs. If KC Yu did not have D1’s actual authority (which MUL denied), D1 had clothed him with apparent authority and led MUL to believe he had proper authority to act on D1’s behalf, so D1 was estopped from denying KC Yu had authority to bind it in signing the 1295/15 TAs as he did:

(a)	the Old TAs were all signed on behalf of D1 as landlord by its manager K C Leung (“Leung”) with MUL or FGIIL as tenant, and Leung as D1’s manager dealt with MUL’s or FGIIL’s CY Chan on D1’s land matters in San Tin;
(b)	Leung signed 3 “Option to a Tenancy” Agreements (“Leung Option Agts”) all dated 23 May 2003 on behalf of D1 as landlord with FGIIL as tenant for several portions of Lot372DRP described therein as land nos 3, 4 and 6 respectively;
(c)	at all material times, D1 allowed its manager KC Yu to represent it in dealings with CY Chan on behalf of MUL or FGIIL on D1’s land matters in San Tin;
(d)	prior to the TAs, KC Yu had signed 5 “Option to a Tenancy” Agreements all dated 14 December 2011 (“Yu Option Agts”) on behalf of D1 as landlord with MUL as tenant for 5 several portions of Lot372DRP described therein as land nos 1, 3, 4, 5 and 6 respectively;
(e)	at all material times, Chui & Lau (“C&L”) routinely acted as D1’s solicitors, and were known to MUL and FGIIL to have so acted, and in particular Siu Choi Fat (“Siu”) was C&L’s solicitor-in-charge of D1’s land matters in San Tin;
(f)	the Old TAs, Leung Option Agts, Yu Option Agts and TAs were all prepared by C&L as D1’s solicitors;
(g)	Leung’s signatures in the Leung Option Agts and Old TAs were all attested by Siu (solicitor-in-charge at C&L) who verified all Leung’s signatures therein;
(h)	KC Yu on behalf of D1 signed the Yu Option Agts and the 1295/15 and 1849/15 TAs, and his signatures were attested by Siu who verified all of Yu’s signatures therein;
(i)	D1’s company chop was invariably used/impressed alongside the signature of the signatory concerned in the execution of each of the above agreements.

21.  MUL further averred that even if the Leases were not sham transactions, D2-4 were not bona fide purchasers for valuable consideration within the meaning of section 3 of the LRO, so the Leases could not gain priority over the corresponding 1295/15 TAs, and none of D2-4 was entitled to avail itself of the effect of sections 3-4 of the LRO.

22.  MUL admitted D1 as landlord signed the Old TAs,[2] but denied the 2005/2006 TAs expired by effluxion of time or were terminated by D1. Instead, D1 claimed the tenancies created thereunder merged in the respective terms under the 1295/15 TAs. MUL denied any of D2-4 was entitled to possession of any part of the relevant Subject Lands on or before 30 October 2015, and claimed MUL is and will be entitled to remain in lawful possession thereof under the 1295/15 TAs.

23.  Rejoinder and Reply to Defence to Counterclaim filed on 8 March 2016  Ds denied KC Yu was ever a manager of or otherwise held any office/employment in D1 and/or he was authorised to sign the Yu Option Agts on behalf of D1. Other than admitting C&L had from time to time acted as D1’s solicitors in particular transactions, Ds also denied (a) at all material times C&L had general authority to represent D1 in all its land matters in San Tin and/or (b) C&L prepared the 1295/15 TAs or Yu Option Agts in their capacity as D1’s solicitors. But even if D1 had done anything to represent to MUL that KC Yu had the requisite authority to enter into the 1295/15 TAs on behalf of D1, Ds denied MUL was justified in relying on the same or it suffered any detriment as a result of such reliance. Ds further averred that:

(a)

insofar as MUL alleged KC Yu was clothed with apparent authority by D1’s representation in the form of its previous manner of entering into the Old TAs and Leung Option Agts with MUL and its authorisation to KC Yu to use D1’s company chop, it was reckless and hence irrational for MUL to have relied on such apparent authority to enter into the 1295/15 TAs which purported to let the relevant Subject Lands for a fixed term of 10 years with the Renewal Obligation (as opposed to letting the relevant Subject Lands for a short fixed-term or a term which was determinable on short notice);

(b)

even if MUL had relied on KC Yu’s apparent authority and it was justified in so doing (which Ds denied), D1 was not estopped from denying KC Yu’s authority because MUL had not suffered any detriment as the result of entering into the 1295/15 TAs.[3]

IV. MUL’s CASE

24.  The CY Chan Affs claimed the Actions involved common questions of law and fact, and could not be disposed of by answering pure questions of law alone. Each of D2-4 had to satisfy the requirement of being a bona fide purchaser for value within the meaning of section 3(2) of the LRO before it could avail itself of the provisions governing priority of instruments affecting land under section 3(1) of the LRO, and whether D2-4 could satisfy such requirement was a question of fact that could not be decided until after full discovery of documents (including specific discovery) and cross-examination of witnesses at trial (including assessing such witness evidence against contemporaneous documents, possible inconsistencies and inherent improbabilities). Thus the Actions were not suitable for determination and final disposal under Order 14A and/or Order 18 rule 19(1)(a) of the RHC.

25.  The CY Chan Affs reiterated MUL’s/FGIIL’s plea that the Leases were sham transactions created and registered in the Land Registry by D2-4 acting in collusion and conspiring with D1 for the unlawful purpose of defeating and injuring the legal/equitable interests of MUL/FGIIL as tenants in possession of the relevant Subject Lands under the TAs. Mr Wong submitted there were 4 players central to such dispute, ie Wong (director of D1), Ho (director of D2), LL Yu (director of D3) and CS Chan (director of D4), and the close connection amongst them was evident from the public documents at the Companies Registry on their common directorships of relevant companies,[4] and the information posted on the internet by the Pacific Concord group (“Group”) on the delisting of Pacific Concord Holding Limited (“PCHL”) (“Internet Information”).[5] They provided cogent prima facie evidence that at all material times (a) Wong was the controlling person and mastermind behind all the companies concerned and Ho, LL Yu and CS Chan were staff employed by Wong or companies controlled by him without any beneficial interest in D2-4, and (b) D2-4 were the alter egos of and acting in collusion with D1 in pursuit of the unlawful purpose of D1.

26.  Mr Wong submitted “[the] facts pleaded will also support [MUL’s] case against each [of D2-4] in equity for assisting D1 to act in breach of trust and knowing receipt of trust property, and in tort for procuring D1's breach of [the 1295/15 TAs] concerned”, and a fuller picture would emerge from discovery of documents and cross-examination of witnesses.

27.  The CY Chan Affs went further to assert the TAs were not previously registered in the Land Registry at D1’s specific request in order to keep the arrangements between MUL/FGIIL and D1 confidential so CY Chan’s work on MUL’s/FGIIL’s behalf to assist D1 in obtaining vacant possession of “the lands concerned in the San Tin area” would not be affected.

V. D2-4’s CASE

28.  D2-4 contended that whatever rights MUL acquired against D1 under the unregistered 1295/15 TAs,[6] sections 3-4 of the LRO had the effect of rendering those rights unenforceable as against D2-4 who as lessees under the registered Leases had acquired the legal estate in the Subject Lands. Mr Yin suggested MUL’s argument otherwise (ie D2-4’s execution and registration of the Leases were unlawful as being a sham or otherwise not bona fide because they were related to D1 and hence D2-D4 were not entitled to take advantage of sections 3-4 of the LRO) was no answer.

VI.  LEGAL PRINCIPLES

29.  For an application under Order 14A rule 1 of the RHC, Hong Kong Civil Procedure 2016 states as follows:[7]

“The requirements for employing the procedure under this Order are the following:

1. the defendant must have given notice of intention to defend;

2. the question of law ...... is suitable for determination without a full trial of the action (para.1(i)(a));

3. such determination will be final as to the entire cause or matter or any claim or issue therein (para.1(i)(b)); and

4.   the parties had an opportunity to being heard on the question of law ...... (para.1(3)). ......”

“...... Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do ......

Where there are conflicting allegations of fact, or issues of fact interwoven with the legal issues to be deteremined, the O.14A procedure is not apppropriate. ......”

In Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & anor,[8] Chan PJ reiterated that “if it is necessary for the court to hear evidence to resolve a factual dispute in order to come to a determination on the question of law ......, it would not normally be suitable to invoke O.14A”.

30.  Order 14A rule 1(5) of the RHC provides that “nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provision of these rules”. For a striking out application under Order 18 rule 19(1)(a) of the RHC, ie on the basis that the pleading discloses no reasonable cause of action, Hong Kong Civil Procedure 2016 provides:[9]

“It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule. ...... Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. ...... Where the legal viability of a cause of action is sensitive to the facts, an order for strike out should not be made. ...... The mere fact that the case is weak and not likely to succeed is no ground for striking it out ...... Nor should sparsity as to detail lead to a similar result. ...... Even though detail in the pleading ...... was lacking, “the test is as to whether reading it in the overall context of the pleadings and the case it satisfies the criteria laid down in Wheelock Marden” ......”

“A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered ...... So long as the statement of claim or the particulars ...... disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out ......

Where a pleading is defective only in not containing particulars as to which the other side is entitled, application should be made for particulars under r.12, and not for an order to strike out the pleading under this rule. Even a serious want of particularity in a pleading may not justify striking out if (1) the defect can be remedied, and (2) the defect is not the result of a blatant disregard of court orders ......”

31.  Mr Yin accepted the 1295/15 Summons must proceed on the undisputed fact that the subsequent Leases were all registered at the Land Registry before the 1295/15 TAs that were earlier in time and on the assumed fact that MUL’s allegations were true,[10] and this court should not adjudicate on the dispute over the validity of the 1295/15 TAs. Mr Yin submitted the question was whether on such basis the LRO would nevertheless operate in favour of D2-4 against MUL’s entitlement to remain in possession of the relevant Subject Lands that rested on the then unregistered 1295/15 TAs.

VII.  MUL’s RIGHTS AS TENANTS UNDER THE 1295/15 TAs

32.  It is important to distinguish between legal and equitable interests in land, and a legal estate in land may be created or disposed of only by deed.[11]Mr Wong suggested MUL had beneficial interests in the legal estate, but I agree with Mr Yin that such interests as MUL might have acquired under the 1295/15 TAs (being instruments in writing but not by deed) could only have subsisted as equitable interests in respect of which D1 had agreed to grant a lease.[12]

VIII.  D2-4’s RIGHTS AS LESSEE UNDER THE LEASES

33.  Mr Yin initially submitted the Leases granted to D2-4 (which were effected by deed) were at once effective to vest in them a legal estate in the relevant Subject Lands which was good against the world and entitled them to maintain their counterclaim against MUL.

34.  Mr Wong relied on the doctrine of interesse termini (abolished in England but still applicable in Hong Kong) to say D2-4 had not acquired the legal estate and had no right to sue for trespass or possession. Under English common law before the Real Property Limitation Act 1833, an estate in possession for both freehold and leasehold could not be conveyed without delivery of possession. For leasehold, even if the lease for a term of years was granted by deed, the lessee did not acquire a perfected legal estate without actual entry into possession of the demised land. In Doe v Walker,[13] Baley J said:

“The right upon a lease to commence in presenti is ...... until entry an interesse termini only, and so is the right upon a lease to commence in futuro; and the same rules are applicable to both. Each is a right only, not an estate. The whole estate, notwithstanding such right is in the lessor. ...... Upon an ordinary lease, to commence instanter, the lease has at common law an interesse termini only until entry ...... and in the case of a lease to commence in futuro, all the common law rules of an ordinary lessee before entry apply. So, Co Litt 270 a. “Before entry the lesse hath but an interessee termini, an interest of a term, and no possession, and, therefore, a release, which ensures by way of enlarging an estate, cannot work without a possession, for before possession there is no reversion ......” (my emphasis)

35.  Mr Wong therefore argued that since the Leases all dated 22 April 2015 were to commence only on 1 November 2015, each Lease was not a present demise but a future lease that was executory in nature, so each of D2-4 only had a right known as interesse termini and not a legal estate. Faced with such argument, Mr Yin accepted that for the purpose of the 2915/15 Summons each of D2-4 as a lessee under the respective Lease had vested in it an interesse termini, so strictly speaking its legal estate was not fully constituted until it made actual/symbolic entry into possession of the relevant Subject Lands. On such basis, the question of law posed on paragraph 10(a)(i) above is not quite correct.

36.  Mr Wong and Mr Yin disagreed over the effect of such interesse termini. Mr Wong argued a bare lease would not vest any estate in the lessee and only gave him a right of entry on the tenement, but once he had entered he acquired the estate,[14] so a lessee might not sue before he was entitled to possession or before he actually entered the premises.[15] Hence, Mr Wong submitted D2-4 not being in possession of the relevant Subject Lands only had a right of entry to perfect the legal estate upon expiry of concurrent term under the 1295/15 TAs, but until then they would not have any legal right to sue for the reliefs in their counterclaim. On the other hand, although Mr Yin agreed that a lessee who had not yet perfected his title by entry could not sue for trespass (or for breach of quiet enjoyment) as such action depended on the claimant’s possession, he argued that an interesse termini would be sufficient to entitle each of D2-4 as lessee under the respective Lease to sue for ejectment and possession of the demised land against anyone who interfered with their proprietary right. Mr Wong disagreed and suggested the right to sue for trespass and any right to eject MUL must come hand in hand, so D2-4 in accepting they had no present right to sue for trespass also would not have any right to sue for possession against MUL even if (as D2-4 alleged) the Leases had priority over the 1295/15 TAs.

37.  In my view, it is necessary to bear in mind that (a) D2-4’s Leases were concurrent leases in the sense that their term was concurrent with (or it overlapped with) the term under the 1295/15 TAs, and (b) at the same time they were future leases that would take effect 6 months away on 1 November 2015. So whatever rights D2-4 acquired under the Leases would be the result of interplay of their nature as concurrent and future leases.

38.  In Lewis v Baker,[16] it was held that a reversionary lease merely created an interesse termini and not an estate until entry thereunder and it would not enlarge the term of the original lease. Swifen Eady J said at pp 51-52 as follows:

“...... where a lease is granted to commence from a future date the lessee has thereunder no estate whatever, which remains in the lessor, but a mere interesse termini until after entry under the lease when the date for its commencement has arrived. At p. 694 Parke B. said: “The second lease to commence in future was a mere interesse termini. The reversion continued in the lessor till the determination of the first term.” And, again, on p.699: “The second lessee has no interest whatever until the determination of the first lease, except a mere interesse termini. It is clear that no reversion could pass by that deed, since it is a mere interest in futuro.

The nature of an interesse termini was very fully considered in Doe v. Walker. It was there pointed out that such an interest merely gives a right to have the possession at a future time. It is a right, not an estate. The whole estate notwithstanding that right is in the lessor. The right may be granted away as a right, or extinguished by a release, but it cannot be conveyed as an estate. It has all the properties and consequences of a right only, not of an estate ......

...... On the expiration or sooner determination of the original lease, the freeholder would have had a right of entry. This point is well illustrated by the case of Joyner v Weeks. ...... Fry L.J. said: “the second lease passed no estate until possession was taken under it. It only gave an interesse termini which would, on possession being taken, become an estate. The lessor had a right of entry on the determination of the first lease. ......”

39.  In Laws of England,[17] it was said as follows:

“861. After a lease has been granted, another lease of the same premises is sometimes granted, the term being either concurrent with or subsequent to that of the existing lease. A concurrent lease, provided it is made by deed, operates as a grant of the reversion upon the existing term. If the concurrent term is equal to or exceeds the residue of the existing term, the concurrent lease is entitled to the rent for the whole of such residue, and afterwards to possession for the remainder (if any) of his own term. If the concurrent term is less than the existing term, the concurrent lessee is entitled to the rent during his own term. ......

862. A lease made to commence at a future date necessarily confers on the lessee only an interessee termini until that date arrives and the lessee’s title is completed by entry. The interessee termini thus arising is subject to the same rules as the similar right existing under a present lease not perfected by entry. It can be assigned to a third person, and it can be released to the lessor, but it cannot be enlarged into an estate by a release by the lessor. Where the future lease is to take effect on the termination of a present lease, the reversion and the right to distrain for the rent under the present lease remain in the lessor; and although the present lease and the reversionary lease are vested in the same person, yet the estate under the former and the interessee termini under the latter remain distinct. ......” (my emphasis)

40.  It appears from the above that:

(a)   a present lease for a term concurrent with that of an existing lease operates as a grant of the reversion upon the existing term;

(b)   such grant of the reversion entitles the concurrent lessee to rent from the existing lessee;

(c)   if concurrent term is less than or equals to the existing term, the concurrent lessee is entitled to rent during his own term or the residue of the existing term respectively;

(d)   if the concurrent term exceeds the existing term, the concurrent lessee is entitled to rent during the residue of the existing term and then to possession of the demised premises for the remainder of his own term;

(e)   under a grant of a future lease to commence at a future date, the future lessee only acquires the right to possession/entry in a future time and the estate remains with the lessor; and

(f)   where a future lease is to commence upon expiry or termination of the existing lease, the reversion upon the existing term and the entitlement to rent from the existing lessee remain with the lessor.

41.  Based on the above principles, where a future lease (eg the Leases) is to commence at a future date (eg 1 November 2015) during the existing term under an existing lease (eg the 1295/15 TAs), such future lease is at the same time a concurrent lease, so until such future date the concurrent future lessee has no estate and the reversion remains with the lessor (eg D1), and such concurrent future lessee has no entitlement to rent and no right of entry. But upon arrival of such future date, the reversion of the existing term falls upon the concurrent future lessee, who becomes entitled to (a) rent from the existing lessee for the residue of the existing term and (b) possession for the remainder of his own term (if it exceeds the residue of the existing term), ie by the time of such future date the concurrent future lease in effect becomes a reversionary lease no different from a concurrent present lease that is not yet capable of being perfected by entry pending expiry or termination of the existing term under the existing lease.[18]

42.  On the above analysis, if the existing lease is effective and binding on the concurrent future lease, then the concurrent lessee is not entitled to seek entry/possession against the existing lessee during the residue of the existing term. Consequently, if the 1295/15 TAs were effective and binding on D2-4 as lessees under the Leases, their legal estate would be inchoate and they would not be entitled to possession of the relevant Subject Lands until expiry or earlier termination of the existing term under the 1295/15 TAs. This is particularly so when D2-4’s counterclaim was filed on 29 September 2015 (ie before 1 November 2015 being the future date for commencement of the term under the Leases) when even the reversion upon the existing term was still with D1 as lessor.

43.  But if the 1295/15 TAs were not effective and binding on D2-4 in that, say, the Leases had priority over them under sections 3-4 of the LRO, question would arise as to whether D2-4 could still maintain their counterclaim against MUL when they only had an interesse termini at the time they made their counterclaim on 29 September 2015 (ie before 1 November 2015). Mr Yin submitted D2-4 were so entitled, but Mr Wong disagreed.

44.  Mr Yin referred to Williams and Yates, The Law of Ejectment[19] which he submitted drew a careful distinction between a present lease that had not been perfected by entry and a mere agreement for a lease:

“...... A tenant can recover possession of the demised premises immediately upon the making of the demise whether he has actually entered under it or not. The interesse termini, which a lessee under a present demise has before entry, is a sufficient title upon which to maintain ejectment; but where there was only an agreement to demise, the proposed tenent could not maintain ejectment until he had actually entered. He cannot, however, sue for trespass to the land unless he has actually entered.” (my emphasis)

Mr Yin suggested that by reading Laws of England and The Law of Ejectment together, this court should come to the conclusion that a future lease, which is no different from a present lease that has not been perfected by entry, has “sufficient title upon which to maintain ejectment”, which was an old common law form of action for trying title to ownership of land[20] that was different from an action for trespass.[21]

45.  Mr Yin submitted such distinction was illustrated by Wallis v Hands,[22] which he said was an action to establish title to a lease rather than a claim that rested on disturbance of possession:

“The object of this action was to establish the Plaintiff’s title to a lease of certain collieries, dated the 8^th of August, 1887 ...... (2.) whether the Plaintiff, having only an interesse termini, could maintain that part of his action which claimed damages against his lessor for breach of the covenant for quiet enjoyment, and compensation from some of the Defendants for wrongful working ......” (my emphasis)

46.  In that case, there were 2 leases. By the 1884 lease, defendant N demised the upper series of coals under certain lands to several lessees. The lessees took possession and did some working. By the 1887 lease, defendant N demised to the plaintiff the upper series of coals in the 1884 lease together with the lower series and some additional land, but the plaintiff was never in possession of the property conveyed. In 1889, defendant N purported to lease the property conveyed in the 1887 lease to defendant S who arranged to grant an underlease to defendant H. The plaintiff sued inter alia H, N and S claiming a declaration that the 1887 lease was valid and subsisting, and to have his title to the premises therein established in priority to all claims of the defendants or any of them; an injunction to restrain the working of coals from the premises; compensation for coals worked by the defendants, and damages for breach of the covenant of quiet enjoyment implied in the 1887 lease.

47.  Defendant H admitted he worked coals comprised in the 1887 lease, which might or might not have been coals comprised in the 1884 lease. Chitty J said at p 85 that “[as] regards coal in the 1884 lease, the plaintiff cannot sue, inasmuch as that lease, which has priority over the 1887 lease, has never been vested in him”. This echoes my conclusions in paragraphs 41-42 above.

48.  Then “[as] regards any coal worked by [H] not within the area of the 1884 lease, the plantiff, as against [H], relies on his title under the 1887 lease”. Chitty J held that the essence of a breach of a covenant of quiet enjoyment in a lease was a disturbance of the lessee’s possession, but in Wallis there was no disturbance of possession as the plaintiff not being in possession merely had an interesse termini. At pp 85-86 Chitty J said:

“...... The law provides a person having an interesse termini with an adequate remedy against the granter of the term,without there being any necessity to have recourse to an action on the covenant for quiet enjoyment; he can bring an action against the granter of the term for not putting him in possession ...... This right of action is also founded on implied covenant. The present action is not to enforce any such right; nor are there any facts proved which would give rise to it.

......

...... Having but an interesse termini, [the plaintiff] cannot maintain an action of trespass against [H]. His proper course as against [H] was to bring an action to recover possession, in which case [N] would have had opportunity of coming in to defend, and the Plaintiff would then have had to face the difficulties in his way arising from his 1887 lease being forfeitable. It is settled law, that a person having a mere interesse termini cannot bring an action of trespass. ......” (my emphasis)

49.  Mr Wong suggested an action for possession (as distinct from an action for trespass) is directed at the grantor of the lease for not putting the lessee in possession, but as D2-4 did not have possession they as future lessees under the Leases could not maintain any action for trespass and had no locus standi to sue MUL for the reliefs under their counterclaim.

50.  In the scenario under contemplation, ie D2-4 as lessees under the Leases had priority over and took free of the 1295/15 TAs pursuant to sections 3-4 of the LRO, I accept that pending arrival of the future date for commencement of the term under the Leases (unencumbered by the existing 1295/15 TAs) each of D2-4 had an interesse termini “subject to the same rules as the similar right existing under a present lease not perfected by entry”, and such interesse termini as “a lessee under a present demise has before entry” would be sufficient title upon which to maintain ejectment, which Chitty J in Wallis confirmed to be the proper course to take.[23] I agree with Mr Yin that Wallis, which essentially was an action to try the lessees’ title in the land, contrasted the right to bring an action for ejectment (which was permissible) against an action for trespass which was not permissible. So in the scenario under contemplation, D2-4 as lessees under the Leases had sufficient proprietary right under interesse termini to support an action for ejectment/possession for injury to that right even though they would not be able to maintain an action for trespass until after entry into possession, and hence D2-4 could seek the reliefs in their counterclaim.

51.  In the circumstances, the key issue was whether the 1295/15 TAs were effective and binding on the Leases under the provisions for priority under the LRO.

IX. PRIORITIES

52.  Legal rights  It is trite that legal rights are good against the world, but equitable rights are only enforceable against a subsequent purchaser for value of the legal estate through the doctrine of notice. Thus, a lessee under a legal lease is in a better position than one under an equitable lease (eg an agreement to grant a lease) because he does not have to rely on the doctrine of notice. Since MUL’s rights under the 1295/15 TAs subsisted as equitable interests, it can be defeated by a subsequent purchaser for value of the legal estate. Initially, Mr Yin submitted that since D2-4 as lessees under the Leases covenanted to pay rent, they were purchasers for value of the legal estate granted to them under the Leases,and any prior equitable interest would be enforceable against them only through the doctrine of notice. But Mr Yin eventually accepted each of D2-4 only had an interesse termini (ie an equitable interest) and the legal estate was not fully constituted until actual/symbolic entry into possession of the relevant Subject Lands, which had yet to occur. As it was also assumed for the purpose of the 1295/15 Summons that D2-4 had notice of the existence of the 1295/15 TAs, this argument would not aid D2-4.

53.  “For value”  However, Mr Wong went further to argue D2-4 were not bona fide purchasers “for value”. It was said there was no evidence of valuable payment of rent or rent deposit, and the covenant by D3-4 as newly acquired shelf companies to pay rent appeared illusory rather than real. I agree it need not be shown that consideration was adequate, but the purchaser “must have given some value in the form of executed consideration ......”,[24] and “[if] the purchaser is for money consideration, the purchaser must actually pay all the money before receiving notice of the equitable interest ......”[25] Although each Lease had an acknowledgment of receipt for the rental deposit, D2-4 did not adduce any evidence to show actual payment of such rental deposit or monthly rent as from 1 November 2015. In my view, the absence of evidence of such actual payment even in the face of MUL’s allegation that the Leases were “sham transactions” (which topic I will return to below) lent weight to MUL’s contentions of there being “actual fraud” that sections 3-4 of the LRO could not cure (and hence ought to be investigated at trial).

54.  Priorities  I turn to the matter of whether D2-4’s knowledge of MUL’s prior equitable rights under the then unregistered 1295/15 TAs[26]  would disqualify them from being bona fide purchasers. Mr Yin submitted this question must be answered in the negative as provided for in section 4 of the LRO (which disapplied the doctrine of notice if the subsequent instrument was duly registered).

55.  The LRO is one of the oldest laws passed in Hong Kong,[27] and itslegislative purpose as stated in its preamble is “to prevent secret and fraudulent conveyances, and to provide means where the title to real and immovable property may be easily traced and ascertained”. It is meant to be draconian in the sense of imposing a serious disability on unregistered interests with a view to encourage registration. Sections 3-4 of the LRO provide as follows: 

“3.(1) Subject to this Ordinance, all such deeds, conveyances, and other instruments in writing ...... and registered in pursuance hereof, shall have priority one over the other according to the priority of their respective dates of registration ......

(2) All such deeds, conveyances, and other instruments in writing ...... as last aforesaid, which are not registered shall, as against any subsequent bona fide purchaser ...... for valuable consideration of the same parcels of ground, tenements, or premises, be absolutely null and void to all intents and purposes ......

4.   No notice whatsoever, either actual or constructive, of any prior unregistered deed, conveyance, or other instrument in writing, ......, shall affect the priority of any such instrument as aforesaid as is duly registered.”

56.  As explained in Kwok Siu Lau v Kan Yang Che,[28]the “bona fide” purchaser in section 3(2) of the LRO refers to the equitable doctrine of notice (whether actual or constructive) that only affects priority between unregistered instruments affecting the same parcels of land, but such doctrine is disapplied if the subsequent instrument was duly registered. In that case, the purchaser registered his agreement for purchase with actual knowledge of a prior 5-year unregistered lease, completed the purchase and then registered his assignment. The Full Court held the purchaser took the property free of the lease, and Havilland de Sausmarez J said as follows:[29]

“...... Section 3(2) appears to me to deal simply with unregistered instruments and ...... postponing them to other instruments whether registered or unregistered, under which a subsequent bonâ fide purchaser for value may claim the property in question. ...... It is said that the legislature cannot have intended to postpone a prior to a subsequent unregistered deed. That is an argument which would be of weight could not the priority of unregistered deeds inter se immediately be altered or confirmed by the registration of one of them. The penalty is severe, but the escape is easy.

Having dealt with the priority of deeds, registered and unregistered, the Ordinance by Section 4 goes on to enact that, “no notice, either actual or constructive, of any prior unregistered deed, &c., shall affect the priority of any such instrument as aforesaid as is duly registered in pursuance of this Ordinance,” thus at a stoke cutting off the application of the equitable doctrine of notice to any registered deed. It has been suggested that by such an interpretation ...... bonâ fide and malâ fide purchasers are put in the same position, and so a door to fraud is opened. I do not think so, for when there is actual fraud by a subsequent purchaser, which is what the Ordinance seeks to defeat, it cannot be contended that the registration of a deed will cure it, but if by malâ fide purchaser is meant a purchaser with notice I think the section does put the two classes on the same footing and purposely.

The effect of the Ordinance, as I read it, is to make registration the test of priority, and by imposing harsh terms on persons failing to register to compel them to do so, and, further, to remove the doctrine of notice from transactions in land in the Colony ......” (my emphasis)[30]

The above principles were recently cited with approval by Litton NPJ in De Monsa Investments Ltd v Whole Win Management Fund Ltd.[31]

57.  I find it to be settled law that in the absence of fraud sections 3-4 of the LRO are to make an unregistered instrument null and void as against the registered deed of a subsequent bona fide purchaser for value even though the latter had, at the time of registration, notice of the former unregistered instrument. On such basis, registration of the subsequent Leaseswas effective to vest the interesse termini in the beneficiaries of those transactions (ie D2-4) free from any prior unregistered interests (eg MUL’s rights under the 1295/15 TAs) regardless of whether D2-4 had notice of the same unless there was “actual fraud” that sections 3-4 of the LRO could not cure.

58.  Actual fraud  But what is “actual fraud” that sections 3-4 of the LRO cannot cure? Mr Yin submitted that merely taking the property with notice did not equate to lack of good faith, and drew attention to Midland Bank Trust Co Ltd & anor v Green,[32] which he claimed was clear authority that it was not unlawful to take advantage of a situation provided by the law.

59.  There, in 1961 a father granted to his son, a 10-year option to purchase the farm which the son farmed as a tenant, but such option was not registered under the Land Charges Act 1925. In 1967 the father (wishing to deprive the son of his option) conveyed the farm (then worth about £40,000) to the mother for £500.  The mother made a will in which she left the farm, subject to the father’s life interest, to her 5 children (including the son). When the son found out about this, he registered/exercised the option, and sued the father and the mother’s executors seeking specific performance of the contract arising from the exercise of the option and damages for conspiracy by the parents. The first instance judge decided:

“...... (i) that the sale and conveyance to [the mother] was not a sham and was a genuine sale by the vendor to a “purchaser” as defined by the Land Charges Act 1925 for money or money’s worth, and accordingly that the option was not specifically enforceable; (ii) that [the father’s] estate had no answer to a claim in damages, and that an enquiry as to damages must be made; ......”

The English Court of Appeal by majority reversed the decision on (i) above and declared the option specifically enforceable.

60.  On appeal to the House of Lords, senior counsel for the mother argued at p 520 as follows:

“ ...... The effect of the legislation is that [the son’s] proprietary interest in the land was a defeasible right liable to be defeated by a conveyance of the legal estate to a purchaser as defined in the Act. [The Father] took legal advice and was correctly told that that was the position, that it was open to him and [the mother] lawfully to render the option unenforceable against the land by a conveyance for value to [the mother]. They accepted and followed that advice. In the circumstances it is hard to say that their conduct was fraudulent, ...... There was no finding of fraud by Oliver J. against either [the father] or [the mother] ......

Reference to fraud in In re Monolithic Building Co. [1915] 1 Ch. 643, 661-662, 669 are quite different. If one fraudulently induces a person not to register so that one can jump in and defeat his interest, one may not be able to rely on the purchaser protection section; ...... nor did [the father] induce [the son] not to register. They were simply grantor and grantee of the option at arm’s length and so [the father] was guilty of breach of contract but not fraud.” (my emphasis)

61.  The House of Lords held the mother took an interest in fee simple for valuable consideration and was therefore a purchaser for money, so the option, not having been registerd, was void against her. Lord Wilberforce said at pp 530-531 as follows:

“ ...... Addition of a requirement that the purchaser should be in good faith would bring with it the necessity of inquiring into the purchaser’s motives and state of mind. The present case is a good example of the difficulties which would exist. If the position was simply that the purchaser had notice of the option, and decided nevertheless to buy the land, relying on the absence of notification, nobody could contend that she would be lacking in good faith. She would merely be taking advantage of a situation, which the law has provided, and the addition of a profit motive could not create an absence of good faith. But suppose, ...... the purchaser’s motive is to defeat the option, does this make any difference? Any advantage to oneself seems necessarily to involve a disadvantage for another: to make the validity of the purchase depend upon which aspect of the transaction was prevalent in the purchaser’s mind seems to create distinctions equally difficult to analyse in law as to establish in fact: avarice and malice may be distinct sins, but in human conduct they are liable to be intertwined. The problem becomes even more acute if one supposes a mixture of motives ...... To eliminate the necessity for inquiries of this kind may well have been part of the legislative intention ......

...... I must comment on In re Monolithic Building Co. ...... It was held by the Court of Appeal, first that this was not a case of fraud: “it is not fraud to take advantage of legal rights, the existence of which may be taken to be known to both parties” ......

...... it makes it clear that it is not “fraud” to rely on legal rights conferred by Act of Parliament: it confirms the validity of interpreting clear enactments as to registration and priority according to their tenor.

The judgment of Phillimore L.J. in In re Monolithic Building Co. ...... does indeed contain a passage which appears ...... to make a distinction between a transaction designed to obtain an advantage, and one designed to defeat a prior (unregistered) interest. But, as I have explained, this distinction is unreal and unworkable: ......, and I respectfully consider that it is not good law.”

62.  Mr Yin submitted the sound policy reasons given by Lord Wilberforce as to why there could not be any requirement of “good faith” in the context of the Land Charges Act 1925 were equally applicable in the context of the LRO, and since the doctrine of notice had no place under the statutory scheme of registration, it would be wrong to allow it creep back in through the backdoor by admitting a requirement of good faith. On the other hand, Mr Wong suggested the LRO expressly provided for the requirement of “good faith”, and since such requirement had always been there in the local enacted law, there was no question of it creeping back through the backdoor. But in light of the interpretation of “bona fide” in Kwok Siu Lau, which made registration the test of priority under sections 3-4 of the LRO and disapplied the doctrine of notice where the subsequent instrument was duly registered, I am unable to accept Mr Wong’s contention there was a “good faith” requirement vis-à-vis a subsequent registered deed under the LRO.[33]

63.  Mr Yin submitted the above policy reasons were particularly  apposite in HCA1295/2015 because:

(a)   it was MUL’s own case that the 1295/15 TAs were not registered “in order to keep the arrangements between [MUL] and [D1] confidential”,[34] so by deliberately withholding registration of the 1295/15 TAs MUL was estopped from contending the true position was otherwise;[35]

(b)   although MUL claimed D1 induced MUL not to register the 1295/15 TAs, such allegation was lacking in particulars as to the circumstances in which such inducement was made;

(c)   it could not be said that execution/registration of the Leases could somehow be invalidated as lacking in good faith just because D2-4 were related to D1 and their motive was to defeat MUL’s unregistered interests, and similar arguments were advanced and rejected in Midland Bank Trust Co;

(d)   the LRO only affected property and not contractual rights, so the focus should be on rights in rem and it was irrelevant that MUL might have rights in personam against Ds, so unless MUL could show it had rights over the relevant Subject Lands that remained enforceable notwithstanding the LRO, whatever rights it might have acquired under the unregistered 1295/15 TAs at most entitled them to damages against D1[36] and would not afford a defence to D2-4’s claim for possession on the strength of their legal rights;[37]

(e)   following from (d) above, it was important to distinguish between the effect of the grant of the Leases and the effect of section 4 of the LRO, and not to confuse the position of D2-4 with that of D1;[38] and

(f)   insofar as MUL had any unregistered interests which were defeated under sections 3-4 of the LRO, they had only themselves to blame for not availing themselves of the protection by due registration of their 1295/15 TAs.

64.  On the other hand, Mr Wong submitted that D2-4’s singular focus on priority alone was misplaced. He reminded that sections 3-4 of the LRO only dealt with the question of priority, and did not address the anterior question as to the validity of the relevant underlying transaction which had to be considered first, which meant that if the Leases were impeached as sham transactions, then they had no validity to begin with. Hunter J in Financial and Investment Services for Asia Ltd v Baik Wha International Trading Co Ltd[39] said as follows:

“ Validity and priority are different concepts. The second only arises between valid effective documents. But a rule expressed like s. 3(1) simply as a rule of priority, creates no presumption of validity and can operate satisfactorily without it. I can see no reason to make registration a test of validity or for suggesting that the invalid should somehow be perfected by registration. The words of the section require no more than that prima facie validity should be accorded to a registered document. If a challenge to such validity is made then the underlying transaction has to be investigated and the matter ruled upon. I can see no mandate in the section for shutting out such challenge in limine.

This is admittedly true in the case of fraud. The deed which is registered after being obtained by fraud has no doubt to be afforded prima facie validity and prima facie priority over a later registration. But when the fraud is revealed and proved it ceases to have any effect at all.

......

In my judgment s. 3(1) does no more than provide for priority between valid documents of the defined classes which are registrable and registered. Such registration is only prima facie evidence of ownership. It does not exclude inquiry into the underlying transaction which is the subject matter of the registration. The validity and effectiveness of such transactions depend upon the results of such inquiry independently of the fact of registration.”

65.  In Ferris v Weaven,[40] the plaintiff bought the house by agreement with the husband, not because he wanted to buy it, but simply to enable the husband to defeat a right which the husband believed his wife possessed as a result of the arrangement which the husband had made with her previously.  Jones J held that the plaintiff failed to make out his claim, and the wife was a licensee with a contractual right to remain in the house as a result of the arrangement with her husband and the plaintiff was not entitled to recover possession of the house. Ferris was approved by the House of Lords in National Provincial Bank, Ltd v Ainsworth[41]where Lord Hodson said, in reference to Ferris, that “[the] Court can protect itself against sham sales”. Lord Wilberforce at p 501 also alluded to the ample powers of the court “to detect, and to refuse to give effect to, sham or fraudulent transactions - such as that which was attempted in Ferris v. Weaven”.  

66.  In Jones v Lipman,[42] the 1^st defendant, in breach of a prior contract for sale to the plaintiff, purported to transfer the land to the defendant company, the shareholders/directors of which were the 1^st defendant and a clerk of his solicitors. It was held the defendant company was the creature of the 1^st defendant, a mask to avoid recognition by the eye of equity, so a decree of specific performance could not be resisted by the vendor, since by his control of the defendant company, in which the property was vested, he was in a position to cause the contract in question to be completed. Specific performance was ordered against both defendants. Russell J at p 836 referred to Gilford Motor Co Ltd v Horne[43] where Lord Hanworth MR, after referring to Smith v Hancock[44] said at p 961:

“Lindley L.J. indicated the rule which ought to be followed by the court: ‘If the evidence admitted of the conclusion that what was being done was a mere cloak or sham, and that in truth the business was being carried on by the wife and Kerr for the defendant, or by the defendant through his wife for Kerr, I certainly should not hesitate to draw that conclusion, and to grant the plaintiff relief accordingly.’ I do draw that conclusion; I do hold that the company was ‘a mere cloak or sham’; I do hold that it was a mere device for enabling Mr E. B. Horne to continue to commit breaches of [the covenant], and under those circumstances the injunction must go against both defendants ......”

67.  Mr Yin submitted none of the above cases cited by Mr Wong detracted from what was decided in Kwok Siu Lauand Midland Bank Trust Co for those cases did not decide that despite the provisions of the LRO (or their English counterpart) a purchaser for value who has duly registered his conveyance must nevertheless take his interest subject to the prior unregistered equities just because he entered into the transaction with knowledge of and for the purpose of defeating the same. Mr Yin submitted that it was not fraud to take advantage of legal rights conferred by the LRO to defeat such prior unregistered equities the existence of which was known to the subsequent purchaser for value.

68.  In my view, Mr Yin’s arguments are premised on the assumed foundation that the subsequent underlying transaction was a valid one. The priority provisions in the LRO do not preclude an anterior challenge against the validity of the transaction which goes to the question whether or not the subsequent purchaser had any interest in land at all. After all, “the invalid could not be perfected by registration”, and there is necessarily power to prevent the statute from being used as an instrument of fraud. If such challenge as to validity is mounted (and it is not plain and obvious that it is bound to fail), then the underlying transaction (particularly if it involves factual issues) will have to be investigated and decided accordingly.

69.  This is borne out by the Court of Final Appeal’s observations in HKSAR v Lau Kam Ying[45] in which Midland Bank Trust Co was considered. In that case, a group of Dings agreed to sell their “Ding rights” to Company X, and land owned by Company X were assigned to them. The Dings executed various documents (but none of which was registered), including a declaration of trust in favour of Company X or its directors, with a view that when the development was completed the Dings would assign the land together with their small houses to Company X or its nominees. The development did not proceed and Company X became insolvent. Later, the Dings became ostensibly entitled to compensation from resumption of the land previously assigned to them by Company X, so Company X’s former directors wanted to regain title to the land so they could collect the compensation. Company Y was set up with funds injected by an investor to obtain the Dings’ cooperation to “re-transfer” the land. The Dings made false statutory declarations to the effect they had lost the original powers of attorney and title documents, and tendered such statutory declarations to the government to enable Company Y to collect the compensation when in fact Company X was the real owner.  The directors/shareholders of Company X and the involved solicitor were convicted of conspiracy to defraud.

70.  The solicitor’s argument in applying for leave to appeal was that what he had caused Company Y to do (ie to acquire the land from the Dings with intention to defeat the interest of Company X and to claim compensation) was not fraud even if he knew about Company X’s beneficial interest in the land because he was merely taking advantage of legal rights by virtue of sections 3-4 of the LRO. The Court of Final Appeal refused leave to appeal. At pp 607-608, Tang PJ agreed that the gravamen of the offence was the concealment of Company X’s beneficial interest, so the real issue was whether Company X had any interest in the land and whether there had been a fraudulent scheme to defraud the Government, the liquidators and creditors of Company X by transferring the title/interest in the land to Company Y to defeat Company X’s interest. The Dings acknowledged Company X’s beneficial interest, the participants of the scheme knew Company X was the true/beneficial owner of the land, and the success of the scheme depended on the Dings’ co-operation in executing assignments and false statutory declarations. Hence, Company Y was not a bona fide purchaser for valuable consideration without notice, and did not acquire good title unencumbered by Company X’s beneficial interest as the provisions of the LRO for registration of interests in land could not be used as an instrument of fraud.

71.  In my view, MUL in its pleadings and the CY Chan Affs essentially raised an issue of fraud, ie whether the Leases were in fact not true leases between D1 and D2-4 but sham or non-genuine transactions under a scheme concocted for the primary purpose of defeating the prior interests of MUL under the 1295/15 TAs. Thus, the issue raised by MUL was not (a) whether the registration of arms-length Leases for the purpose of enabling D2-4 to obtain proprietary rights free from MUL’s prior unregistered interests was unlawful,[46] but (b) whether the grant of the Leases to D2-4 purportedly to take effect as concurrent leases was in fact not a grant of true/real leases but sham transactions that falsely operated as a “mask to avoid recognition by the eye of equity” with the dishonest intent to “defeat or injure” MUL’s legitimate interests.

72.  Mr Yin submitted the starting point was that all Ds were separate legal entities, and it made no difference they were closely related and shared common directors. He urged the court to respect their separate identities in the absence of fraud or seriously unlawful conduct, and to treat as valid transactions which were intended by the parties to take effect according to their tenor. In my view, such submissions reflect D2-4’s clear understanding that “the invalid could not be perfected by registration” or veiled by corporate persona.

73.  Mr Yin next argued that the grant of the Leases to D2-4 would have taken effect as concurrent leases giving D2-4 the right to receive the rent due from MUL which would otherwise be payable to D1,[47] and it was impossible to see how the grant of such Leases could per se amount to “a sham” or “defeat or injure” MUL’s interests or otherwise give MUL a cause of action against D2-4. But again such argument that rested on grant of the Leases per se would only raise prima facie validity, but if “fraud is revealed and proved it ceases to have any effect at all” (see paragraph 64 above per Hunter J).

74.  Mr Yin submitted MUL’s allegation of “sham transaction” in the SoC did not mean the Leases were transactions that were not real or genuine,  and MUL’s suggestion that D2-4 were alter egos of D1 and had or were imputed with D1’s knowledge was nothing more than an allegation that D2-4 had actual notice of prior unregistered equitable interests, hence the so-called “sham transactions” were mere assertions that D2-4 entered into arms-length Leases with D1 with a view to defeat MUL’s prior equitable interests (that was permissible under the LRO as explained in Midland Trust Bank Co).

75.  I do not think that is a correct characterisation of the main thrust of the pleas in the SoC. MUL plainly pleaded that the Leases were not real leases but “purported” leases that were “sham transactions” made with dishonest intent of defeating/injuring MUL’s interests as tenants in possession under the 1295/15 TAs. Aparting from pleading D2-4’s motive, MUL did assert the Leases were not real/true leases but were sham creatures designed to achieve a dishonest intent, which went to the matter of validity in paragraph 71(b) above rather than to the matter of priority in paragraph 71(a) above. Indeed, the reliefs sought in the SoC included declarations that the Leases being “sham transactions” were “null and void” (see paragraph 15 above).  

76.  So ultimately the question boiled down to whether MUL’s pleas of fraud/conspiracy and “sham transactions” raised allegations of fact or interwoven issues of fact and law that would make the Order 14A procedure inappropriate and/or whether it was plain and obvious that such averments were unsustainable, unarguably bad and impossible, and not merely weak and not likely to succeed.

77.  Mr Yin complained that although the word “fraud” was liberally used in Mr Wong’s written submissions, such word was never used in the SoC. But the material consideration was not whether a particular word was used in MUL’s pleadings, but whether MUL presented a case that raised the issue of “actual fraud”. Here, MUL averred that the Leases were all sham transactions being “part of a scheme orchestrated by [Wong]” who was the sole director of D1, and under such scheme D2-4 “in purporting to execute [the Leases] and registering [them] in the Land Registry, ...... have acted in collusion and conspired with the [D1] for the unlawful purpose of defeating and injuring (inter alia) the legal estate and/or equitable interest of [MUL] as tenant in possession......”

78.  Mr Yin argued that such pleas were insufficient to amount to an allegation of fraud/conspiracy which must be pleaded distinctly and with the utmost particularity and must not be left to be inferred from the facts,[48] and suggested it was not enough to allege a common nexus or close relationship amongst Ds with Wong orchestrating the alleged conspiracy.

79.  But that is not all that MUL asserted. The essence of MUL’s complaint was that Wong being the sole director of D1 (ie the landlord under the 1295/15 TAs) had in place a scheme to defeat and injure MUL’s interests under the 1295/15 TAs, and this was achieved by D1 acting in concert with D2-D4 (which were D1’s alter egos and therefore imputed with D1’s knowledge) as masterminded by Wong through the device of sham transactions masquerading as concurrent Leases. According to the CY Chan Affs, the fraud lay, not just in relying on legal rights conferred by the LRO, but in D1 (or Wong being its sole director and/or mastermind of the such scheme) reneging on its inducement to MUL not to register the 1295/15 TAs so as to facilitate the task by MUL’s CY Chan to assist D1 in obtaining vacant possession of lands in San Tin (and thereby to serve D1’s interest), and yet with knowledge of such fact D1 entered into the sham transactions (purporting to be the concurrent Leases) with D2-4 (who were D1’s alter egos and imputed with D1’s knowledge) under Wong’s orchestration and quickly registered them in order to destroy MUL’s prior equitable interests.

80.  MUL bolstered its assertion that D2-4 were the alter egos of D1 and imputed with D1’s knowledge by claiming Wong was the controlling person and mastermind behind all the companies concerned, that Ho, LL Yu and CS Chan being sole directors of D2, D3 and D4 respectively were mere staff employed by Wong (founder, chairman and joint managing director of the Group) or companies controlled by him (eg LL Yu was the manager of the Group’s company secretarial department) with no beneficial interest in D2-4, that there was close connexion amongst Ds’ 4 sole directors (ie Wong, Ho, LL Yu and CS Chan) by way of common directorships of many companies, that D3-4 were shelf companies assembled just shortly before the Leases were executed so they were likely to be alter egos, that registration was hastily done, and that there was no evidence of actual payment of rental deposit or rent despite challenge as to the validity of the Leases. In my view, when Ds’ knowledge, acts and motives in paragraph 77 and 79 above are considered in such context, they raised factual issues that required or deserved to be investigated, and the case against D2-4 could not be disposed of as a pure matter of law.

81.  Mr Yin complained that Wong was not party to the proceedings, there I do not understand there to be a requirement that all fraudsters had to be made parties to the proceedings to constitute a cause of action in fraud.  Mr Yin also complained MUL’s allegation that D1 induced MUL not to register the 1295/15 TAs was lacking in particulars as to the circumstances in which such inducement was made. But the allegation made under affirmation by CY Chan was clear, and sparsity in detail was no ground for dismissing it out of hand, especially when the relevant procedure was under Order 14A of the RHC. Mr Wong submitted that in the normal course there was no reason why MUL would not have registered the 1295/15 TAs to protect its own interest, especially when those agreements were prepared by solicitors and not home-made. I note too that according to the CY Chan Affs both D1 and MUL were also versed in land matters since MUL’s CY Chan was tasked to obtain vacant possession of land in San Tin for D1.

82.  Mr Yin next reminded that MUL actually pleaded D3-4 were recently acquired which lent doubt as to how they could have conspired to do any unlawful act (ie the inducement) not to register. But the real issue was not D1’s inducement, but D1’s eventual reneging on such inducement knowing that MUL relied and acted on it and having D2-4 enter into the charade of the sham transactions being the Leases and registering them to destroy MUL’s prior equitable interests. This went further than, as Mr Yin suggested, MUL on its own withholding registration of the 1295/15 TAs in order to keep its arrangements with D1 confidential.

83.  Although each case turns on its own facts, Mr Wong submitted there were distinguishing features in Midland Bank Trust Co that led the court in that case to conclude the sale of the land to the mother was a genuine arms-length transaction, and that detracted from the anology Mr Yin drew with that case (see footnote 35 above):

(a)   The father in Midland Bank Trust Co granted the unregistered option to the son for nominal consideration of £1, so although technically it took effect as a binding estate contract, it was in effect a gift from the father the value of which would enlarge with passage of time. When the option was defeated it was yet to be exercised, hence no right to a legal estate had yet arisen. Mr Wong submitted that here MUL was a tenant in possession for valuable (not nominal) consideration under 10-year 1295/15 TAs, and when D2-4 purported to defeat the 1295/15 TAs, MUL had equitable interests under the 1295/15 TAs for which it could seek specific performance for grant of legal tenancies.

(b)   The father and mother in Midland Bank Trust Co were desirous of making what they perceived to be more equitable distribution amongst their children, so the land was sold and transferred to the mother for such purpose upon consideration given by the mother, and although the son’s interest was diluted by the re-distribution (and to that extent disadvantaged), it was a case of defeating the son’s interests in the option (which was essentially a gift from the father) in favour of more equitable distribution amongst the children on consideration paid for the sale/transfer to the mother. So it was clearly a genuine transaction with no question of actual fraud, and on such basis the first instance judge found the transaction between the father and mother to be not a sham. Mr Wong submitted that here, notwithstanding the absence of the word “fraud” in the SoC, what MUL alleged (as explained above) was tantamount to “actual fraud” in that D1 denied and reneged on its earlier request to and understanding with MUL not to register the 1295/15 TAs knowing full well that MUL had acted on it, and in that D2-4 (who as alter egos of D1 were imputed with D1’s knowledge) acted together with D1 to defeat MUL’s prior interest by relying on the terms of the statute to register the sham transactions being the Leases (see paragraph 60 above).

84.  I agree with Mr Wong that enough has been asserted to warrant investigation into the validity of the Leases to determine whether they were arms-length or sham transactions, which would be a fact-sensitive matter such that interwoven questions of fact and law could not be decided without such investigation, and I find HCA1295/2015 is not suitable for disposal by application under Order 14A of the RHC.

85.  I note the allegation in the CY Chan Affs that the 1295/15 TAs were not registered at the specific request of D1 so as not to cause complications in recovering land in San Tin was not pleaded in MUL’s pleadings. Whilst there was no difficulty for the application under Order 14A of the RHC given that affirmation evidence was admissible, Order 18 rule 19(2) of the RHC provides that no evidence shall be admissible on a striking out application under Order 18 rule 19(1)(a) of the RHC. Mr Wong urged me to treat the contents of the CY Chan Affs as voluntary particulars, but I am not persuaded I should given the exclusion in Order 18 rule 19(2) of the RHC.[49]

86.  Mr Yin submitted that for the striking out application under Order 18 rule 19(1)(a) of the RHC, the important question was not whether MUL might conceivably have some cause of action against D2-4, but whether the pleadings in their existing state disclosed any reasonable cause of action. In the absence of any application to amend, it was not open to MUL to resist such application by pointing to some potentially viable claim which was not disclosed in the existing pleadings.

87.  But here MUL did not ask the court to explore the possibility of another cause of action. Rather, the CY Chan Aff gave details that fed the cause of action already pleaded in the MUL’s pleadings. It has been said that sparsity of detail or particulars would not justify an application for striking out (see paragraph 30 above), and I cannot ignore the fact that the allegation as to D1’s inducement to MUL not to register was verified by affirmation, so there was no surprise and Mr Yin had opportunity to deal with and in fact dealt with the same in his submissions. Given that the present application was for striking out which is reserved for plain and obvious cases that is not curable or salvageable by amendment or provision of particulars, I find such formulated allegation in the CY Chan Affs would remedy want of particularity in MUL’s pleadings. Had it been necessary, I would have given leave for MUL to file/serve the relevant particulars. But it turned out to be unnecessary because on 23 May 2016 (ie after the Hearing), MUL and FGIIL filed voluntary particulars of the SoC in the Actions in relation to inter alia D1’s request not to register the TAs so that MUL’s and FGIIL’s work in assisting D1 to obtain possession of lands in San Tin would not be affected. However, I need not rely on the full contents of such voluntary particulars in coming to the view that this is not a clear and obvious case for striking out.

X. BREACH OF TRUST

88.  Mr Wong reminded that MUL on its case of “actual fraud” as explained above also claimed against each of D2-4 damages for conspiracy to act in breach of trust and/or to injure MUL, which were personal claims outside the LRO.

89.  At p 605 in Lau Kam Ying, after making reference to that part of the judgment in Midland Bank Trust Co where Lord Wilberforce stated that taking an advantage of a situation, which law had provided, and the addition of a profit motive could not create an absence of good faith, and that it was not fraud to rely on legal rights conferred by an Act of Parliament, Tang PJ went on to say that it was clear from Midland Bank Trust Co (which was not concerned with breach of trust) the unregistered option was not absolutely null and void to all intent and purpose, and there was no doubt “that, in the case of a trust, the beneficiary would have a claim of breach of trust against a purchaser who had procured the breach of trust” and sections 3-4 of the LRO “concern priorities between registered instruments but do not affect remedies which may be available whether in contract, tort or equity”.  

90.  Lau Kam Ying was applied by Au-Yeung J in Yim Tin Fook & anor v Yu Chor Lai, Kong Wai Hung and Sou Ka Lun trading as Wang Cheung Industrial Chemicals Co & anor.[50] This case involved an action by counterclaim raised by To Cheong Lam (“D2/P”) against To Shui Ki (“D8”). D2/P’s counterclaim was struck out on the ground that it disclosed no reasonable cause of action.  D2/P appealed, contending that his counterclaim was curable by amendment. The subject matter of the counterclaim was an unregistered lease to D2/P (which by operation of law was an assignment). D8 retained only the legal title and the right to receive rental, so in principle D2/P could have directed D8 to transfer the title to him.  Au-Yeung J allowed the appeal. At paragraphs 22-23 of her decision, the learned judge held it was arguable that D8 in purporting to sell the land to another company “as beneficial owner” with clear knowledge of the interest of D2/P acted in breach of trust against D2/P. It was held that the non-registration merely made the lease null and void against a bona fide purchaser for value without notice, but (citing Lau Kam Ying) it did not affect D2/P’s right in equity against his trustee. The learned judge went on to say at paragraph 28 that “[the] Court of Final Appeal held that [sections 3-4 of the LRO] concerned priorities between registered instruments but did not affect remedies which might be available whether in contract, tort or equity. For example, a beneficial owner would have a claim for breach of trust against a purchaser who had procured the breach of trust.” Hence, D2/P, as beneficial owner, would have a claim for breach of trust against D8, and might also sue other defendants for, amongst others, dishonestly assisting D8 in breach of trust or knowing receipt of trust property.

91.  Mr Yin submitted it was a mis-characterisation to say D1 was in breach of trust. Each of the 1295/15 TAs being an instrument in writing and not a deed was nothing more than an agreement to grant lease which gave MUL a right to specific performance against D1. It was said that sections 3-4 of the LRO rendered such equitable interests defeasible unless registered, and when defeated the Leases prevailed, and there would be no basis to support any personal claim for damages against D2-4.

92.  Again, this turned on the vitality of MUL’s arguments as to “actual fraud”, and for the purpose of the 1295/15 Summons I have found there was sufficient basis for such argument to survive D2-4’s reliance on the LRO for priority over the 1295/15 TAs. On MUL’s case, it could have called upon D1 to perfect its equitable estate under the 1295/15 TAs by grant of legal leases by deed, and it is at least arguable that D1 (with clear knowledge of such matters) in entering into the sham transactions and quickly registering them with the participation of D2-3 (who were imputed with D1’s knowledge) in order to defeat and extinguish such interests acted in breach of trust. These are fact-sensitive issues, and I am persuaded they are matters for trial rather than for disposal on point of law or by striking out.

XI. CONCLUSION

93.  I therefore dismiss the 1295/15 Summons, 1849/15 Summons and 1850/15 Summons. There is no reason why costs should not follow event. I therefore grant the following cost orders nisi:

(a)   in HCA1295/2015, D2-4 do pay MUL costs of the 1295/15 Summons (including all costs reserved if any) to be taxed forthwith if not agreed;

(b)   in HCA1849/2015, D2 do pay FGIIL’s costs of the 1849/15 Summons (including all costs reserved if any) to be taxed forthwith if not agreed; and

(c)   in HCA1850/2015, D2 do pay MUL’s costs of the 1850/15 Summons (including all costs reserved if any) to be taxed forthwith if not agreed.

 

 

Schedule A

1.   WoS with SoC filed on 14 August 2015  FGIIL convenanted under clause 7 of the 1849/15 TA that FGIIL shall have quiet possession and enjoyment of the relevant Subject Lands during the term without any interruption by D1 or any person lawfully claiming through, under or in trust for D1, and it was an implied covenant of D1 under the 1849/15 TA that it shall not act in derogation of its grant. FGIIL further claimed it was/is in possession of the relevant Subject Lands as lawful tenant thereof.

2.   FGIIL claimed the D2 Lease was a sham transaction, and in purporting to execute such lease and registering it at the Land Registry, D2 acted in collusion and conspired with D1 (who acted wrongfully in breach of its obligation as landlord under the 1849/15 TA) for the unlawful purpose of defeating and injuring the legal and/or equitable estate of FGIIL as tenant in possession of the relevant Subject Lands under the 1849/15 TA. FGIIL referred to paragraph 14(a)-(b) and (e)-(g) above, and further averred:

(a)   D2 as the alter ego of D1 had or was imputed with the same actual knowledge which D1 had had of FGIIL’s interest under the 1849/15 TA;

(b)   the D2 Lease was a breach of D1’s implied covenant not to act in derogation of its grant under the 1849/15 TA, and was an anticipatory breach of D1’s covenant for quiet enjoyment under clause 7 of the 1849/15 TA.

3.   FGIIL claimed D1’s wrongful breaches of the 1849/15 TA put FGIIL at risk of suffering loss and damage, and on 14 August 2015 FGIIL commenced HCA1849/2015 against D1 and D2 to claim the following reliefs:

(a)   as against D1, a declaration that FGIIL was/is D1’s tenant in possession of a portion of Lot372DRP under the 1849/15 TA with the Renewal Obligation, and damages for breaches of the 1849/15 TA to be assessed;

(b)   as against D1 and D2, (i) a declaration that the D2 Lease was a sham transaction of D1/D2 acting in collusion for the purpose of defeating FGIIL’s interest as tenant under the 1849/15 TA, and hence null and void against FGIIL, (ii) an order that the registration of the D2 Lease in the Land Registry be vacated, and (iii) damages for conspiracy to act in breach of trust and/or to injure FGIIL to be assessed.

4.   Defence and Counterclaim filed on 29 September 2015  D1/D2 denied liability. D/D2 denied the 1849/15 TA allegedly made by D1 as landlord was the act of and/or binding on D1, and averred the 1849/15 TA “is a contract which may be made on behalf of [D1] only in the manner prescribed by section 121(3) of the [New CO] (or formerly by section 32(b) of the [Old CO]), namely in writing signed by a person acting with [D1’s] authority, and [P] is put to strict proof thereof”. D1/D2 claimed the D2 Lease was “lawfully granted by [D1] in the right which a landlord possesses to make a demise of the reversion”, and was not a sham transaction. In particular, D1/D2 denied (a) the alleged purpose for execution of the D2 Lease and its registration[51] could turn the transaction into a sham, and (b) they could have committed any actionable wrong merely by taking advantage of a situation, which the law had provided, to defeat an earlier unregistered interest.

5.   D1/D2 claimed the 1849/15 TA was an instrument in writing by which land was affected and hence registrable under section 2 of the LRO, but since the 1849/15 TA had not been registered prior to the date of registration of the D2 Lease, sections 3-4 of the LRO gave priority to the D2 Lease over the 1849/15 TA, and prevented the legal estate vested in D2 from being affected by any notice of the 1849/15 TA.

6.   D1/D2 therefore claimed FGIIL had no right which it was entitled to assert (at least as against D2) to remain in possession of the relevant Subject Lands after 30 October 2015, but FGIIL’s commencement of HCA1849/2015 showed it had no intention to quit and yield up any part of the relevant Subject Lands on or before 30 October 2015, and had thereby evinced an unequivocal threat or intention, unless restrained by the court, to remain in wrongful possession of such land after that date. D1/D2 therefore counterclaimed against FGIIL for the following reliefs:

(a)	an injunction that FGIIL be restrained, whether by its directors, employees, agents, sub-tenants/licensees, contractors and whosoever, from staying in occupation or using any part of the relevant Subject Lands except for the orderly removal after 30 October 2015;
(b)	an order that FGIIL do deliver up vacant possession of the land coloured pink on the plan annexed to the SoC on or before 1 November 2015;
(c)	in the event FGIIL failed to comply with (b) above, an order that D1 and D2 shall be entitled to and be at liberty to forthwith re-enter such land coloured pink on the plan annexed to the SoC;
(d)	further or alternatively, an order for possession of such land;
(e)	mesne profits from 1 November 2015 until possession was delivered up at a rate not less than the rent payable under the D2 Lease.

7.   Reply and Defence and Counterclaim filed on 27 October 2015  FGIIL claimed that the 1849/15 TA was signed on D1’s behalf by its manager KC Yu who was in charge of its land matters in San Tin, and as such he had D1’s actual authority in signing the 1849/15 TA. If KC Yu did not have D1’s actual authority (which D1/D2 denied), D1 had clothed him with apparent authority and led FGIIL to believe he had proper authority to act on D1’s behalf, so D1 was estopped from denying KC Yu had authority to bind it in signing the 1849/15 TA as he did. FGILL relied on the facts/matters as set out in paragraph 20(a)-(i) above.

8.   Further, FGIIL averred that even if the D2 Lease was not a sham transaction, D2 was not a bona fide purchaser for valuable consideration within the meaning of section 3 of the LRO, so the D2 Lease could not gain priority over the 1849/15 TA, and D2 was not entitled to avail itself of the effect of sections 3-4 of the LRO.

9.   FGIIL therefore denied D2 was entitled to possession of any part of the relevantSubject Lands on or before 30 October 2015, and averred FGIIL is and will be entitled to remain in lawful possession thereof under the 1849/15 TA.

10.  Rejoinder and Reply to Defence to Counterclaim filed on 8 March 2016 FGIIL denied KC Yu was ever a manager of or otherwise held any office or employment in D1 and/or he was authorised to sign the Yu Option Agts on behalf of D1, but (save for admitting C&L had from time to time acted as D1’s solicitors in particular transactions) denied at all material times C&L had general authority to represent D1 in all its land matters in San Tin. D1/D2 also denied C&L prepared the 1849/15 TA or Yu Option Agts in their capacity as D1’s solicitors. But even if D1 had done anything to represent to FGIIL that KC Yu had the requisite authority to enter into the 1849/15 TA on behalf of D1 (which D1/D2 denied), D1/D2 denied FGIIL was justified in relying on the same or it suffered any detriment as a result of such reliance. D1/D2 further averred that:

(a)   insofar as FGIIL alleged KC Yu was clothed with apparent authority by D1’s representation in the form of its previous manner of entering into the Old TAs and its authorisation to KC Yu to use D1’s company chop, it was reckless and hence irrational for FGIIL to have relied on such apparent authority to enter the 1849/15 TA which purported to let the relevant Subject Lands for a fixed term of 10 years with an option to renew for a further term of 10 years (as opposed to letting such land for a short fixed-term or a term which was determinable on short notice);

(a)   even if FGIIL had relied on KC Yu’s apparent authority and it was justified in so doing (which D1/D2 denied), D1 was not estopped from denying KC Yu’s authority because FGIIL had not suffered any detriment as the result of entering into the 1849/15 TA.[52]

Schedule B

1.   WoS with SoC filed on 14 August 2015 MUL claimed D1 covenanted under clause 7 of the 1850/15 TA that MUL shall have quiet possession and enjoyment of the relevant Subject Lands during the term without any interruption by D1 or any person lawfully claiming through, under or in trust for D1, and it was an implied covenant of D1 under the 1850/15 TA that it shall not act in derogation of its grant. MUL further claimed it was/is in possession of the relevant Subject Lands as lawful tenant thereof.

2.   MUL claimed the D2 Lease was a sham transaction, and in purporting to execute such lease and registering it at the Land Registry, D2 acted in collusion and conspired with D1 (who acted wrongfully in breach of its obligation as landlord under the 1850/15 TA) for the unlawful purpose of defeating and injuring the legal and/or equitable estate of MUL as tenant in possession of the relevant Subject Lands. MUL referred to paragraph 14(a)-(b) and (e)-(g) above, and further averred:

(a)   D2 as the alter ego of D1 had or was imputed with the same actual knowledge which D1 had had of MUL’s interest under the 1850/15 TA;

(a)   the D2 Lease was a breach of D1’s implied covenant not to act in derogation of its grant under the 1850/15 TA, and was an anticipatory breach of D1’s covenant for quiet enjoyment under clause 7 of the 1850/15 TA.

3.   MUL claimed D1’s wrongful breaches of the 1850/15 TA put MUL at risk of suffering loss and damage, and on 14 August 2015 FGIIL commenced HCA1850/2015 against D1 and D2 to claim the following reliefs:

(a)   as against D1, a declaration that MUL was/is D1’s tenant in possession of a portion of Lot372DRP under the 1850/15 TA with the Renewal Obligation, and damages for breaches of the 1850/15 TA to be assessed;

(b)   as against D1 and D2, (i) a declaration that the D2 Lease was a sham transaction of D1/D2 acting in collusion for the purpose of defeating P’s interest as tenant under the 1850/15 TA, and hence null and void as against MUL, (ii) an order that the registration of the D2 Lease in the Land Registry be vacated, and (iii) damages for conspiracy to act in breach of trust and/or to injure MUL to be assessed.

4.   Defence and Counterclaim filed on 29 September 2015  D1/D2 denied liability. D/D2 denied the 1850/15 TA allegedly made by D1 as landlord was the act of and/or binding on D1, and averred the 1850/15 TA “is a contract which may be made on behalf of [D1] only in the manner prescribed by section 121(3) of the [New CO] (or formerly by section 32(b) of the [Old CO]), namely in writing signed by a person acting with [D1’s] authority, and [P] is put to strict proof thereof”. D1/D2 claimed the D2 Lease was “lawfully granted by [D1] in the right which a landlord possesses to make a demise of the reversion”, and was not sham a transaction. In particular, D1/D2 denied (a) the alleged purpose for execution of the D2 Lease and its registration[53] could turn the transaction into a sham, and (b) they could have committed any actionable wrong merely by taking advantage of a situation, which the law had provided, to defeat an earlier unregistered interest.

5.   D1/D2 claimed the 1850/15 TA was an instrument in writing by which land was affected and hence registrable under section 2 of the LRO, but since the 1850/15 TA had not been registered prior to the date of registration of the D2 Lease, sections 3-4 of the LRO gave priority to the D2 Lease over the 1850/15 TA, and prevented the legal estate vested in D2 from being affected by any notice of the 1850/15 TA.

6.   D1/D2 therefore claimed MUL had no right which it was entitled to assert (at least as against D2) to remain in possession of the relevant Subject Lands after 30 October 2015, but MUL’s commencement of HCA1850/2015 showed it had no intention to quit and yield up any part of the relevant Subject Lands on or before 30 October 2015, and had thereby evinced an unequivocal threat or intention, unless restrained by the court, to remain in wrongful possession of such land after that date. D1/D2 therefore counterclaimed against MUL for the following reliefs:

(a)	an injunction that MUL be restrained, whether by its directors, employees, agents, sub-tenants/licensees, contractors and whosoever, from staying in occupation or using any part of the relevant Subject Lands except for the orderly removal after 30 October 2015;
(b)	an order that MUL do deliver up vacant possession of the land coloured pink on the plan annexed to the SoC on or before 1 November 2015;
(c)	in the event MUL failed to comply with (b) above, an order that D1 and D2 shall be entitled to and be at liberty to forthwith re-enter such land coloured pink on the plan annexed to the SoC;
(d)	further or alternatively, an order for possession of such land;
(e)	mesne profits from 1 November 2015 until possession was delivered up at a rate not less than the rent payable under the D2 Lease.

7.   Reply and Defence to Counterclaim filed on 27 October 2015  MUL claimed the 1850/15 TA was signed on D1’s behalf by its manager KC Yu who was in charge of its land matters in San Tin, and as such he had D1’s actual authority in signing the 1850/15 TA. If KC Yu did not have D1’s actual authority (which Ds denied), D1 had clothed him with apparent authority and led MUL to believe he had proper authority to act on D1’s behalf, so D1 was estopped from denying KC Yu had authority to bind it in signing the 1850/15 TA as he did. MUL relied on the facts/matters as set out in paragraph 20(a)-(i) above.

8.   Further, MUL averred that even if the D2 Lease was not a sham transaction, D2 was not a bona fide purchaser for valuable consideration within the meaning of section 3 of the LRO, so the D2 Lease could not gain priority over the 1850/15 Lease, and D2 was not entitled to avail itself of the effect of sections 3-4 of the LRO.

9.   MUL therefore denied D2 was entitled to possession of any part of the relevant Subject Lands under the 1850/15 TAs on or before 30 October 2015, and averred MUL is and will be entitled to remain in lawful possession thereof under the 1850/15 TA.

10.  Rejoinder and Reply to Defence to Counterclaim filed on 8 March 2016  MUL denied KC Yu was ever a manager of or otherwise held any office or employment in D1 and/or he was authorised to sign the Yu Option Agts on behalf of D1, but (save for admitting C&L had from time to time acted as D1’s solicitors in particular transactions) denied at all material times C&L had general authority to represent D1 in all its land matters in San Tin, New Territories. D1/D2 also denied C&L prepared the 1850/15 TA or Yu Option Agts in their capacity as D1’s solicitors. But even if D1 had done anything to represent to MUL that KC Yu had the requisite authority to enter into the 1850/15 TA on behalf of D1 (which D1/D2 denied), D1/D2 denied MUL was justified in relying on the same or it suffered any detriment as a result of such reliance. D1/D2 further averred that:

(a)   insofar as MUL alleged KC Yu was clothed with apparent authority by D1’s representation in the form of its previous manner of entering into the Old TAs and its authorisation to KC Yu to use D1’s company chop, it was reckless and hence irrational for MUL to have relied on such apparent authority to enter the 1850/15 TA which purported to let the relevant Subject Lands for a fixed term of 10 years with an option to renew for a further term of 10 years (as opposed to letting such land for a short fixed-term or a term which was determinable on short notice);

(b)   even if MUL had relied on KC Yu’s apparent authority and it was justified in so doing (which D1/D2 denied), D1 was not estopped from denying KC Yu’s authority because MUL had not suffered any detriment as the result of entering into the 1850/15 TA.[54]