HEALTH FIRST TECHNOLOGY LTD. and Another v. CHAN CHI CHEUNG and Others

IN THE COURT OF APPEAL

1993, No. 81
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from an order of Deputy Judge Pang of 10th May 1993 in relation to the registration of what purports to be a "lis pendens" in an action by the defendants against a property owned by the 2nd plaintiff ("Pok Oi"), which consists of a shop site.

2. The short point is whether the defendants have any pending claim which relates to land or any interest in land within the meaning of a "lis pendens" in s. 1A of the Land Registration Ordinance.

3. There is no need to go into the details of this appeal but it is clear that a claim is made by the defendants as plaintiffs in another action for the return of all the shares in Pok Oi which they claim should have been re-transferred to them some considerable time ago upon the failure of an agreement reached with the 1st plaintiff. The 1st plaintiff now controls Pok Oi. What is, however, clear is that this claim is in respect of the shares of Pok Oi and it does not amount to a claim to the property owned by Pok Oi. There is, therefore, no lis claiming any land or interest in land.

4. The appellants rely on the decisions in Thian's Plastics Co. (No. 2) v. Tins' Chemical Co. [1971] HKLR 249 and In re Lo Ling Leung-chai & Others [1980] HKLR 910 for the proposition that a claim is registrable under the Land Registration Ordinance as a lis pendens if it is a claim made to land or an interest in land. Here the defendants' claim does not relate to the land but only to the shares of the company which in turn owns the land. What the company owns has not been made part of the defendants' claim.

5. Deputy Judge Pang ordered vacation of what appears to us to have been wrongly registered as a lis pendens on payment by the appellants into court of a sum of $3,733,332. We are satisfied that the appellants are entitled to vacate the registration without any or any such pre-condition.

6. The appeal will therefore be allowed to the extent that the condition imposed by Deputy Judge Pang's order be removed and the order as varied is that the registration be vacated by the defendants.

7. After hearing argument on matters, including merits of the claim and the procedure which has been adopted by the appellants, we further order that the appellants do have their costs here and below, such costs to be taxed and paid forthwith upon taxation.