WAN WAI HEI WESLEY AND ANOTHER v. DOREEN TONG DO YE AND ANOTHER

HCA 1419/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1419 OF 2010

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1.  This is the adjourned hearing of two summonses issued on behalf of the plaintiffs. The first is the one issued on 20^th September 2010 but filed on 21^st. The second is a summons dated 23^rd September 2010.

2.  By my order made on 24^th September 2010 I ordered that the summonses be adjourned and gave directions for the filing of evidence.  This was done on the defendants by counsel undertaking until the determination of the plaintiffs’ summons dated 24^th September 2010 that they would refrain from doing any acts which are calculated to discontinue or interrupt the supply of utilities for the property, which is the house referred to in these proceedings.

3.  Since that time up to today there is no evidence of any interruption to the occupation of the 1^st plaintiff and the 2^nd plaintiff with their young baby.  The plaintiffs obviously want that position to continue and hence their applications by their various summonses. 

4.  The Court of Appeal in their judgment dated 12 November 2008 in CACV 247 of 2008 looked at the matter on an appeal in related proceedings where the judge below had allowed an appeal from a master who made an order for interim payment on the counterclaim of Fortune Wealth Asia Limited, the registered owner of the property.  As Rogers VP said at paragraph 9 of his judgment :

“ That matter should be looked at by the Family Court. The Family Court is the right place not only to sort out exactly who has paid for this house and when and on what basis, but how, at the end of the day, whatever is left out of this house should be divided up between these two parties and possibly the mother-in-law or indeed the husband’s parents, if they indeed have loaned money, and this is something which, on the papers which are before this court, this court has absolutely no possibility of coming even to a provisional view.”

5.  He also said at paragraph 11

“ Once the matter is before the Family Court, the Family Court can make any order that it sees fit with regard to the occupation and devolvement of the property.”

6.  It is undisputed that since 2006 the 1^st plaintiff, the husband, has been living at the house with the 2^nd plaintiff and since sometime this year with a young baby.  

7.  There have been voluminous affidavits filed on behalf of the defendants and the plaintiffs where there are disputed issues of fact.  What I am concerned with today is whether in view of the undertakings given by Mr Man on behalf of his clients the court should give any further interim relief. 

8.  Although the Court of Appeal said that the Family Court was the right place to determine the questions about the property and who owned it and may make orders in regard to the occupation and devolvement of the property, it appears from the papers before me that a question of jurisdiction arose and the judge dealing with it felt that she had no jurisdiction.  That was the subject matter of another appeal which was heard, I am told, two days ago. 

9.  It seems to me that having read the judgment of the judge not only did she decide the jurisdiction point but she heard viva voce evidence from all the relevant parties to decide the question as to the ownership of the property.  Obviously one will have to wait and see what the Court of Appeal will decide but it seems to me that the question as to the ownership of the property will be something that will be decided in the not too distant future.

10.  It seems to me that the undertakings given by Mr Man to the court are sufficient safeguards for the plaintiffs’ position in the interim.  The undertakings given are

(1) to give 72 hours’ notice to the 1^st plaintiff for any inspection of the property with contractors limited to a total number of 5 visitors not including the 1^st defendant;

(2) to give 5 days’ notice to the 1^st plaintiff for any repairs to the property stating the estimated scope and duration of repairs with specified hours and the number of workers involved;

(3) to give 1 day’s notice to the 1^st plaintiff in respect of any items of repair work intended to be done which is noisy; and

(4) to give 5 days’ notice to the 1^st plaintiff for any interruption to the utilities for the purpose of the repair work.

11.  It appears from the evidence before me that the house is in need of repair and hence it is reasonable, in my view, for repairs to be carried out and the undertakings given on behalf of the defendants, in my view, are sufficient safeguards for the plaintiffs in the interim. 

12.  So, on the basis of the undertakings given by Mr Man, which I have read out, until trial or until further order and on the cross-undertaking in damages by the 1^st plaintiff and the 2^nd plaintiff which have been given by Mr Yau, on behalf of the plaintiffs, I make no order on the summonses.  I give liberty to the parties to apply.