XCHRX HAPPY ALL LTD. v. LEE CHEUK BUN AND ANOTHER

HCMP5311/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.5311 OF 1999

--------------------

--------------------

--------------------------------------------------------

REASONS FOR JUDGMENT

--------------------------------------------------------

1. This is an appeal against the order of the master dated 21 February 2001 dismissing the plaintiff's application for an order to join Cheang Soi Chu ("Cheang") as the 3rd defendant and to make binding on her all subsequent orders made in their proceedings including an order for sale dated 23 December 1999 as amended on 14 September 2000.

2. On 4 June 1999, the plaintiff obtained a charging order absolute against the 1st and 2nd defendants in respect of their interest in the property in question. Subsequently, the plaintiff took out the present proceeding against them for an order for sale. Cheang together with the defendant are joint tenants. However, due to inadvertence, the present proceedings proceeded as if the property was only jointly owned by the 1st and 2nd defendants only. An order for sale was obtained on 27 December 1997. Physical possession was recovered on 17 July 2000. It is only when the plaintiff intended to sell the property recently that it was discovered that Cheang was a joint tenant. On 21 December 2000, the plaintiff took out the present application.

3. In my view, Cheang is a proper and necessary party to these proceedings. Her interest in the property will no doubt be affected by the present proceedings. I will therefore give leave to the plaintiff to amend the originating summons by adding her as a 3rd defendant.

4. But I am not persuaded that the plaintiff is entitled to amend all the subsequent orders including the order for sale as amended. As noted in the course of submission, the right to be heard is an essential ingredient in our legal system. The practical solution may well be that the court would make a partition order and an order for sale. But Cheang should not be deprived of the opportunity to put forward her case to the court. I do not think it is right for me to exercise my discretion to amend the order for sale. In any event, there is insufficient material before me that an amendment to the order can be made under Order 20 rule 11. By the foregoing reason, the appeal is allowed to the extent that leave be given to add Cheang as a 3rd defendant.

5. As the amended order for sale was obtained on a defective basis, I will set it aside. Mr Leung for the plaintiff concedes that the plaintiff has to bear the costs. Accordingly, there will be no order as to costs for this appeal.