LAU MIU TING (劉妙婷) v. LAU CHUNG KEI (劉仲基)

[English Translation - 英譯本]

FAMV 404/2022

[2023] HKCFA 47

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANCEOUS PROCEEDINGS NO 404 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO 57 OF 2021)

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DETERMINATION

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Mr Justice Lam PJ:

1.  This is a family financial dispute case. Lau Chung Kei (“Mr Lau”), the Plaintiff, is the younger brother of Lau Miu Ting (“Ms Lau”), the Defendant. On 26 March 2017, both parties reached an Agreement for Change of Title. The details of the case can be found in the judgment of the Court of First Instance[1] and that of the Court of Appeal[2]. On 24 August 2022 Ms Lau made an application for leave to appeal to the Court of Final Appeal. On 5 September 2022 the Registrar issued a summons under Rule 7(1) of the Hong Kong Court of Final Appeal Rules.

2.  Ms Lau in her written submissions dated 3 October 2022 raised the argument that the Plaintiff did not act in accordance with the Agreement for Change of Title. In this hearing before me, the issues that have to be dealt with are the level of court at which that argument should be heard, and if the answer to that is the Court of First Instance, whether Ms Lau’s application for leave to appeal in FAMV 404/2022 should continue to proceed or be adjourned until that argument has been determined.

3.  On 18 January 2021, Bebe Chu J made an order for specific performance in respect of the Agreement for Change of Title dated 26 March 2017 in paragraph 1 of her Judgment as follows:

1. The Agreement for Change of Title dated 26 March 2017 between the Plaintiff and the Defendant is valid and is specifically enforceable.

4.  Apart from providing that Ms Lau shall sell her half share in the ownership of Flat 6, 25/F, Block Q, Luk Yeung Sun Chuen, Tsuen Wan to Mr Lau, the Agreement dated 26 March 2017 also provided that Mr Lau shall sell his half share in the ownership of Flat H, 8/F, Kingswin Industrial Building Phase 2, 32-50 Lei Muk Road, Kwai Chung and parking space No. 52 to Ms Lau and he shall pay her HK$400,000.

5.  In paragraph 44 of the judgment dated 7 February 2022, the Court of Appeal pointed out that the purpose of the court’s order for specific performance was to enforce the Agreement for Change of Title as a whole, including the obligations of both parties thereunder. It was made on the basis that the Plaintiff (i.e. Mr Lau) was ready, willing and able to perform his contractual obligations.

6.  Pursuant to paragraphs 2-4 of the order for specific performance, Ms Lau’s half share in the ownership of Flat 6, 25/F, Block Q, Luk Yeung Sun Chuen was transferred to Mr Lau.

7.  Ms Lau adduced evidence alleging that Mr Lau did not perform his contractual obligations under the Agreement for Change of Title: he failed to transfer his half share in the ownership of Flat H, 8/F, Kingswin Industrial Building Phase 2 and parking space No. 52 to her and failed to pay her HK$400,000.

8.  Despite notice of this hearing given to him on 8 November 2023, Mr Lau did not attend the same. The Court therefore does not have his explanation regarding these allegations.

9.  In my view, issues relating to the performance of Mr Lau’s contractual obligations under the Agreement for Change of Title should be dealt with under paragraph 1 of Chu J’s Judgment dated 18 January 2021 and in accordance with paragraph 44 of the Court of Appeal’s judgment dated 7 February 2022. After a court has granted an order for specific performance, it can make supplemental orders regarding the further performance of the contract[3].

10.  If there are any disputes on Mr Lau’s payment of HK$400,000 and his transfer of Flat H, 8/F, Kingswin Industrial Building Phase 2 and parking space No. 52, Ms Lau or Mr Lau can take out a summons in HCA 2030/2017 before the trial judge in the Court of First Instance seeking further directions from her under paragraph 1 of the order for specific performance dated 18 January 2021 seeking a hearing to resolve the disputes.

11.  As there has not been any decision on those issues at first instance, at this stage they cannot constitute any grounds of appeal in FAMV 404/2022. In that application, the Court of Final Appeal will only examine matters which the Court of First Instance and the Court of Appeal have already heard and on which decisions have already been given.

12.  Ms Lau or Mr Lau may seek legal advice according to their own wishes, and, after considering their own situations, decide whether to take out a summons before the Court of First Instance in respect of the unit at Kingswin Industrial Building and the parking space and the sum of HK$400,000. Should any party issue a summons in the Court of First Instance, that party may lodge a copy in this Court within 5 days by way of notification. However, whether any party issues a summons or not will not affect the process in FAMV 404/2022. Even if any party issues a summons under HCA 2030/2017 regarding the unit at Kingswin Industrial Building or the parking space or the sum of HK$400,000, any decision in FAMV 404/2022 will not affect the hearing of that summons, or any subsequent appeal concerning such summons[4].

13.  Accordingly, this Court will continue to examine Ms Lau’s other arguments for her application for leave to appeal in FAMV 404/2022 pursuant to the summons issued under Rule 7(1) dated 5 September 2022.