XCHRX PETER DICRAN BASMAJIAN v. ISABELLA HO KWAN LING

1996, No. A8296

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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The Background

1. In June 1993, the plaintiff paid the sum of $721,940 to the defendant. This was a contribution towards the purchase price of a flat. The plaintiff says that it was agreed by them that the plaintiff would be entitled to 50% of "net equity" of the flat, 50% of any increase in the "net equity", and 50% of the net income and profits. In the alternative, the plaintiff alleges there was a resulting trust or a loan. The defendant denies the agreement and the resulting trust, but admits the loan. The plaintiff issued his writ of summons on 23 July 1996.

2. On 24 July 1996, the plaintiff obtained a prohibition order against the defendant. This order was made, apparently, on the basis of evidence from the plaintiff that he had difficulty contacting the defendant. He believed, on reasonable grounds, that the defendant was avoiding him. Indeed, the defendant admitted that she was "reluctant to maintain any relationship with him".

3. On 2 August 1996, the plaintiff obtained a Mareva injunction up to an amount of $1.9 million. This was obtained on evidence similar to that on which the plaintiff obtained the prohibition order. The plaintiff assessed that the amount due to him was $1.9 million. On 16 August 1996, the defendant paid into court this sum of $1.9 million under this order. On this payment, the prohibition order was discharged.

4. On 1 October 1996, the plaintiff issued a summons in which he claimed judgment under Order 14, an interim payment of $2.5 million , and a variation of the order of 2 August 1996 "to provide a further payment into court of a sufficient sum to secure the Plaintiff's claim for costs pending trial of the action". Some of the relief was said to be claimed under Order 44A, rule 7.

5. In support of this application, the plaintiff filed an affirmation in which he departed from his earlier assertion that $1.9 million was due; he said that, in fact, nearer $2.6 million was due to him. Despite the payment of $1.9 million into court, the plaintiff said that he was "still of the belief that she is likely to abscond from Hong Kong". He does not explain why he had this belief. It must have been based only on the defendant's reluctance to allow contact with the plaintiff.

6. On 16 October 1996, there was an order by consent on the summons of 1 October 1996 that the sum of $721,000 be paid to the plaintiff from the $1.9 million paid into court, and that there be no further order on this summons.

7. On 25 July 1997, the plaintiff issued another summons under Order 44A, rule 7 in which he seeks an order that the defendant "do pay into court or provide further security within 21 days HK$1.2 million . . . to secure the Plaintiff's claim". This is the summons now before me.

Order 44A, Rule 7

8. This rule says -

(1) If in any action the defendant, with intent to obstruct or delay the execution of any judgment that may be given against him in the action, is about to dispose of his property or any part thereof, or to remove any such property from the jurisdiction of the Court, the plaintiff may, either at the institution of the action or at any time thereafter until final judgment, apply to the Court to call upon the defendant to furnish sufficient security to produce and place at the disposal of the Court, when required, his property, or the value of the same, or such portion thereof as may be sufficient to answer any judgment that may be given against him in the action, and, in the event of his failing to furnish such security, to direct that any property, movable or immovable, belonging to the defendant shall be attached until the further order of the Court.

(2) The application shall contain a specification of the property required to be attached, and the estimated value thereof, so far as the plaintiff can reasonably ascertain the same.

(3) There shall be filed with the application an affidavit to the effect that the defendant is about to dispose of or remove his property or some part thereof, with such intent as aforesaid.

The Evidence

9. In his evidence in support of the present summons, the plaintiff recites his difficulties in tracing the defendant in 1996. The plaintiff recites more recent attempts to trace the whereabouts of the defendant. Because, the plaintiff says, the defendant is difficult to contact, and because her solicitors have failed to explain why she is difficult to contact, the plaintiff says "I believe that the Defendant is about to remove her assets, if she has not done so already, with the intention of obstructing judgement for the full amount of my claim". At this stage, of course, the plaintiff knew that the defendant was "reluctant to maintain any relationship with him".

10. The defendant's father has filed an affirmation in which he says that the defendant is living with him, and gives her address. He complains about investigators employed by the plaintiff pestering his family. The mother of the defendant has also filed an affirmation. She says much the same thing as her husband. She also gives examples of pestering by investigators. The defendant's solicitor has also filed an affirmation. He says that the defendant is out of Hong Kong until the end of August 1997. He points out that, in her affirmations and witness statements, the defendant gave her address. The defendant does not want to disclose her work address. That does not surprise me.

Assessment of the Plaintiff's Case

11. The plaintiff has not, as is made mandatory by the rule, specified the property to be attached, nor has he explained why he has not done so. Mr Collins says that the plaintiff is not seeking attachment, but this is not the point. This rule makes it clear that an applicant must do this, and the following rules re-enforce this requirement.

12. This is a technical deficiency in the plaintiff's application. Of more substance is the fact that there is absolutely nothing, in my view, in his evidence upon which I could reasonably find any intent to obstruct or delay the execution of any judgment by disposing of her property. I do not think that one can draw the inference of such intent from reluctance by the defendant to have any contact with the plaintiff. Quite apart from there being no basis on which such an inference could be reasonably drawn from the plaintiff's evidence, there is the undeniable strong probability that, if the defendant had any such intent, now or ever, she has had all the time in the world to give effect to it. The plaintiff has made in quite clear in the past that he is prepared to pursue her and her assets with repeated court applications. If she wished to put her property beyond his reach, she would have done so a long time before now. There can, in my view, be no stronger evidence of a lack of intent to dispose of property than a failure to do so after being given ample opportunity to make such a disposal. This is precisely why, of course, that Mareva injunctions are granted ex parte in the first instance.

13. In any event, the plaintiff has already had one go at seeking relief under Order 44A. An order was made on that application. Whether or not this is a technical estoppel, the plaintiff cannot be allowed to make another application for the same relief when there is no evidence that there has been any change in circumstances. This is an abuse of process.

The Result

14. There is, in my judgment, no substance at all in the plaintiff's application at all. It is dismissed.

The Costs

15. The question of costs has not been argued. On the material presently before me, I am inclined to think that the proper order is that the plaintiff pay the defendant's costs immediately, with a certificate for two counsel. I make an order nisi accordingly.