KOT WAH LUNG AND ANOTHER v. PANG KO FAI

CACV 363/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 363 OF 1999

(ON APPEAL FROM HCA 8007/1997)

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J U D G M E N T

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Hon Godfrey JA :

1. This is the judgment of the court on an appeal from the refusal of Yeung J, on 12 May 1999, to include, in an order which he made in favour of disappointed purchasers, a declaration of lien on the property the subject matter of the purchase to secure, in due course, repayment of the deposits paid by the purchasers to the vendor, the costs and expenses incurred by them in connection with the purchase (those expenses being incorrectly referred to in the judge's order as "damages") and also interest and costs.

2. The judge appears to have refused to make the declaration of lien which he was invited to make on behalf of the purchasers because he thought it had not been claimed in the amended statement of claim and, no doubt, mindful of the fact that when a defendant to an action does not appear on a plaintiff's application for judgment, the plaintiff cannot get relief going beyond that which he has claimed in his statement of claim. But, in the amended statement of claim, there was, in fact, included a claim for the relief now sought, that is to say, the declaration of lien. The judge seems to have been mistaken about this and we ought, therefore, to allow this appeal and vary the judge's order by inserting in it the declaration of lien as we have been invited to do in the notice of appeal.

The vendor is absent today, as he was absent from the hearing before the judge below, but we are satisfied that the notice of appeal has been duly served on him. We will accordingly make an order varying the judge's order by making the declaration sought, but the reference to "damages" also ought to be varied so as to make it clear that the sum of $44,600 mentioned in the order represents the purchasers' costs and expenses incurred in connection with the purchase. Subject to provisions of Order 42 rule 5(6)B, we will order the vendor to pay the purchasers' costs of the appeal, to be taxed if not agreed.