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Leung Kwai Ling v Hong Kong Land Ltd

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date13 August 2013
CourtHigh Court (Hong Kong)
Judgement NumberHCA432/2013
Subject MatterCivil Action
HCA347D/2013 LEUNG KWAI LING v. HK GLORY PROPERTIES LTD

HCA 347/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 347 OF 2013

________________________

BETWEEN

LEUNG KWAI LING Plaintiff
and
HK GLORY PROPERTIES LIMITED Defendant

________________________

HCA 432/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 347 OF 2013

________________________

BETWEEN

LEUNG KWAI LING Plaintiff
and
HONG KONG LAND LIMITED Defendant

________________________

Coram: Deputy High Court Judge Marlene Ng in Chambers
Date of Hearing: 1 August 2013
Date of Handing Down Decision: 13 August 2013

_______________

D E C I S I O N

_______________

I. INTRODUCTION

1. The subject matter of dispute in HCA347/2013 and HCA432/2013 (“Subject Actions”) concerns the redevelopment of Lai Sing Court, 13-15 Tai Hang Road, Hong Kong (“Old Building”) that was built on Inland Lot No.7903 and the Extension thereto (“Land”). The Lai Sing Court Redevelopment Project (“Redevelopment Project”) involved the demolition of the Old Building and the erection of a new development in its place known as Serenade, No.11 Tai Hang Road, Hong Kong (“New Building”).

2. The plaintiff in the Subject Actions and her husband Lee Yiu Kei (“Lee”) as joint tenants were the registered owners of Flat B on the 13th floor of Block B and Carpark No.57 on the Lower Ground Floor of the Old Building (“Old Unit”).

3. The defendant in HCA347/2013 (“HK Glory”) was the developer of the New Building, and the defendant in HCA432/2013 (“HK Land”) was the guarantor for the Redevelopment Project pursuant to a Development Agreement dated 1 May 2001 (“Development Agreement”) as supplemented by a subsequent agreement (see paragraph 32 below). HK Glory was/is a subsidiary of HK Land.

II. RELEVANT SUMMONSES IN HCA347/2013

4. On 22 February 2013, the plaintiff issued a Writ of Summons and commenced HCA347/2013. By the Indorsement of Claim, the plaintiff claimed for “compensation & damages for negligence and other claims, with claim amounts in statement of claims (to follow), for claims against defendant”. On 6 March 2013, the plaintiff served the Writ of Summons on the defendant’s solicitors (“JSM”). On 7 March 2013, JSM on behalf of HK Glory filed acknowledgment of service giving notice of intention to defend.

5. On 15 April 2013, HK Glory issued a summons (“D’s 347 Summons”) against the plaintiff for inter alia the following orders:

(a) an order to strike out plaintiff’s Statement of Claim and to dismiss HCA347/2013 under Order 18 rule 19 of the Rules of the High Court (“RHC”) and the inherent jurisdiction of the court on the grounds that:

(i) it disclosed no reasonable cause of action;

(ii) it was frivolous or vexatious; or

(iii) it was an abuse of the process of the court;

(b) restricted application order (“RAO”) and restricted proceedings order (“RPO”) against the plaintiff in terms set out in D’s 347 Summons.

6. On 15 April and 13 June 2013 respectively, HK Glory filed the affidavits of Robert Yau Chung Wong (“Mr Wong”) in support of D’s 347 Summons. The plaintiff filed her affidavits in opposition on 30 April, 6 May, 6 May, 28 May, 30 May, 30 May, 19 July and 19 July 2013 pursuant to my order dated 9 May 2013[1] and my order dated 1 August 2013.[2]

7. On 17 April 2013, the plaintiff gave written notice of intention to enter default judgment against HK Glory under Order 19 rule 8A of the RHC for failing to serve their Defence within the prescribed deadline. On 19 April 2013, the plaintiff issued a summons to enter default judgment against the defendant (“P’s 347 1st Summons”). On 22 April 2013, the plaintiff filed her own affidavit in support.

8. On 26 April 2013, the plaintiff issued a summons (“P’s 347 2nd Summons”), and in paragraphs 1, 3 and 4 thereof asked for the following orders:

(a) D’s 347 Summons be dismissed;

(b) RAO be issued against HK Glory to stop their current and future RAO/RPO and striking out applications against the plaintiff and her court cases;

(c) all HK Glory’s requests for court orders, including striking out order, RAO/RPO and order for extension of time for filing Defence, be dismissed.

The plaintiff filed her own affidavit in support on 26 April 2013.

9. Pursuant to my order dated 9 May 2013, the affidavits filed and served by the plaintiff and HK Glory for D’s 347 Summons shall also stand as their respective affidavits for P’s 347 1st Summons and for paragraphs 1, 3 and 4 of P’s 347 2nd Summons.

10. On 23 July 2013, the plaintiff filed and served voluntary further particulars of her Statement of Claim (“347/13 Particulars”). In her supplemental skeleton submissions dated 29 July 2013, Ms Leung, solicitor for HK Glory and HK Land, maintained that the 347/13 Particulars also disclosed no reasonable cause of action, were frivolous and vexatious and/or were an abuse of court process. She sought to strike out the 347/13 Particulars.

11. The plaintiff lodged her written skeleton submissions dated 28 July 2013, lists of authorities dated 28 and 29 July 2013, and chronologies of events dated 28 and 29 July 2013 by fax, and relied on her previous skeleton submissions, lists of authorities and chronologies of events lodged for her other summonses in HCA347/2013 (which had been disposed of by my orders dated 30 April, 9 May, 15 July and 1 August 2013[3]). Ms Leung relied on her skeleton submissions dated 22 July 2013 with chronology of events and list of authorities annexed thereto, and her supplemental skeleton submissions as aforesaid.

III. RELEVANT SUMMONS IN HCA432/2013

12. On 8 March 2013, the plaintiff issued a Writ of Summons and commenced HCA432/2013. By the Indorsement of Claim, the plaintiff claimed for “compensation and damages for negligence and other claims” to be detailed in the Statement of Claim then yet to be filed. On 2 July 2013, the plaintiff filed her Statement of Claim and served the Writ of Summons on JSM. On 10 July 2013, JSM on behalf of HK Land filed acknowledgment of service giving notice of intention to defend.

13. On 16 July 2013, HK Land issued a summons (“D’s 432 Summons”) against the plaintiff for inter alia the following orders:

(a) to strike out plaintiff’s Statement of Claim and to dismiss HCA432/2013 under Order 18 rule 19 of the RHC and the inherent jurisdiction of the court on the grounds that:

(i) it disclosed no reasonable cause of action;

(ii) it was frivolous or vexatious; or

(iii) it was an abuse of the process of the court;

(b) to extend time for the defendant to file and serve their Defence until 28 days after the determination of D’s 432 Summons;

(c) to grant RAO/RPO against the plaintiff in terms as set out in D’s 432 Summons,

and filed Mr Wong’s affidavit in support of such summons.

14. The plaintiff lodged skeleton submissions dated 28 July 2013, lists of authorities dated 28 and 29 July 2013, and chronologies of events dated 28 and 29 July 2013. She also relied on (a) the skeleton submissions, chronologies of events and lists of authorities she lodged for the purpose of D’s 347 Summons, P’s 347 1st Summons, and paragraphs 1, 3 and 4 of P’s 347 2nd Summons in HCA347/2013, and (b) the previous skeleton submissions, chronologies of events and lists of authorities she lodged for the purpose of her other summonses in HCA347/2013 (which had been disposed of – see paragraph 11 above) to oppose D’s 432 Summons.

IV. REDEVELOPMENT PROJECT

(a) Development Agreement

15. Pursuant to the Development Agreement signed by HK Glory as developer, HK Land as guarantor and the majority owners of their respective units in the Old Building (including the plaintiff and Lee) (“Majority Owners”), the parties agreed to apply to the Lands Tribunal for an order for compulsory sale of the Old Building under the Land (Compulsory Sale for Redevelopment) Ordinance Cap.545 (“Ordinance”) and to redevelop the Land by demolition of the Old Building and erection of the New Building upon the terms and conditions therein.

(b) Plaintiff’s legal representation

16. There was a long negotiation process of over 21 months to the execution of the Development Agreement. During that time, the Majority Owners[4] were legally represented by Messrs Gallant Y T Ho & Co in/about 1999. In/about 2000, they were replaced by Messrs Fairbairn Catley Low & Kong (“FCLK”), who continued their legal representation of the Majority Owners until they were replaced by Messrs Zebra HK Kwan & Partners (“ZHKK”) in October 2009.[5] JSM acted for HK Glory and HK Land.

(c) Deal under the Development Agreement

17. Under the Development Agreement, which was signed, sealed and delivered by inter alia the plaintiff and Lee in the presence of a solicitor of FCLK, if the Lands Tribunal granted an order for sale in respect of the Land (“Sale Order”) and the Land were sold to HK Glory pursuant to such order, then each of the Majority Owners would be entitled to the following (collectively, “DA Deal”):

(a) a cash compensation of HK$400,000.00 (for units other than the top floor) if gross floor area of 308,000 sq ft was achieved on the construction of the New Building;[6]

(b) a new unit with saleable area of not less than 767 sq ft and a car parking space in the New Building (“New Unit”);[7]

(c) a share of the profits on the Redevelopment Project (“Bonus”) if profits were to exceed a certain percentage of the Redevelopment Costs (as defined in the Development Agreement) with maximum amount payable in the sum of...

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