CHOI MAN YAN v. LAW KAM LAN, ANDY

DCCJ 3065/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3065 OF 2012

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D E C I S I O N

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1. By a summons dated 22 May 2013, the defendant applies to vacate the registration of the plaintiff’s Writ of Summons herein as a lis pendens and an agreement for sale and purchase dated 18 March 2011 (the “Agreement”) in respect of the property known as the 2nd Floor and Roof, Lot No. 506 in Demarcation District 36, Tai Po, New Territories, Hong Kong (the “Property”). The application is made under section 19 of the Land Registration Ordinance, Cap. 128, and inherent jurisdiction of the court.

2. Mr K H Ting, acting for the plaintiff today, conceded that the registration of the Writ of Summons should be vacated, as prayed for in paragraph 1 of the summons.  I need to say no more on that.

3. On the other hand, Mr Ting objects to the registration of the Agreement being vacated.  Mr Ting argued that although the plaintiff has asked for a declaration that the Agreement has been rescinded by the breach of the defendant, the court may not agree with the plaintiff’s assertions, so that the Agreement will remain alive.

4. I do not see that as a realistic possibility at all.  By a letter from the defendant’s solicitors dated 2 June 2011, the defendant accepted the plaintiff’s refusal to complete as a wrongful repudiation and forfeited the deposit paid by the plaintiff.  Further, the defendant is prepared to undertake by his solicitor not to claim for specific performance of the Agreement.

5. As regards the Agreement, the provisions of section 19 of the Land Registration Ordinance relating to the court’s jurisdiction to vacate a lis pendens does not apply.  However, the court has inherent jurisdiction to vacate the registration or purported registration of any instrument in the Land Registry which did not affect, or no longer affects land [see: Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594].  Here, as the plaintiff is only seeking damages and not specific performance, the Agreement clearly no longer affects the Property and the registration whereof should be vacated. 

6. Upon the defendant by his solicitors undertaking not to claim for specific performance of the Agreement, I make an order in terms of paragraph 1 of the summons.

7. On the question of costs, it is significant to note that the plaintiff issued the second Writ (i.e. the Writ in this action) after the validity of the first Writ in DCCJ2665/2011 had expired, but refrained from lodging a sealed copy for registration with the Land Registry until after the defendant’s application for vacating registration had been disposed of by Mr Registrar Lui on 17 April 2013.  Had it been promptly registered, there would have been ample time for the registration of both Writs to be dealt with at the same time at the hearing before the Registrar.

8. The way the plaintiff has conducted these proceedings constitutes an affront to the court, so that it is appropriate, in my view, to award costs against the plaintiff on an indemnity basis.

9. I order that the costs of and occasioned by the summons dated 22 May 2013 be paid forthwith by the plaintiff to the defendant, such costs to be taxed on an indemnity basis if not agreed.