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Primecredit Ltd v Hon Wai Kan

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 January 2018
Neutral Citation[2018] HKDC 49
Judgement NumberDCMP2179/2015
CourtDistrict Court (Hong Kong)
Subject MatterMiscellaneous Proceedings
DCCJ2167A/2016 HON YUEN WAN v. HON WAI KAN

DCCJ2167/2016
DCCJ 2251/2011
DCMP 2179/2015
(Heard Together)

[2018] HKDC 49

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2167 OF 2016

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

BETWEEN
HON YUEN WAN（韓遠雲） Plaintiff
and
HON WAI KAN（韓偉根） Defendant
PRIMECREDIT LIMITED Intended Intervener

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

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2251 OF 2011

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

BETWEEN
PRIMECREDIT LIMITED Plaintiff
and
HON WAI KAN Defendant
HON YUEN WAN Intended Intervener

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

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2179 OF 2015

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

IN THE MATTER of the District Court of the Hong Kong Special Administrative Region Civil Action No 2251 of 2011
and
IN THE MATTER of the property known as ALL THOSE 35 equal undivided 103,758th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as THE REMAINING PORTION OF TUEN MUN TOWN LOT NO 441 And of and in the messuages erections and buildings thereon now known as KIN SANG ESTATE TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT Flat 6, 24th Floor, Hong Sang House (including the planter/planterbox appertaining thereto, if any) (Block 5) Kin Sang Estate, No 3 Leung Wan Street, Tuen Mun, New Territories (“the Property”)
and
IN THE MATTER of a Charging Order Absolute dated 6th September 2011 and registered in the Land Registry by Memorial No 11090900260022 (“the Charging Order”)
and
IN THE MATTER of Order 50 Rule 9A and Order 88 Rule 5A of the Rules of the District Court

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

BETWEEN
PRIMECREDIT LIMITED Plaintiff
and
HON WAI KAN Defendant
HON YUEN WAN Intended Intervener

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

Before: Deputy District Judge C. Chow in Chambers
Date of Written Submissions on Costs: 8 December 2017
Date of Decision: 12 January 2018

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DECISION ON COSTS

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1. In DCCJ 2251/2011 (“First Action”), the plaintiff obtained judgment against the defendant and also a charging order against the property known as Flat 6, 24th Floor, Hong Sang House (including the planter/planterbox appertaining thereto, if any) (Block 5), Kin Sang Estate, No 3 Leung Wan Street, Tuen Mun, New Territories (“Property”). The defendant was and is the registered owner of the Property and the intended intervener (“Hon’) is his sister.

2. In 2015, the plaintiff took out an originating summons (“OS”) at the Court of First Instance for, inter alia, sale of the Property for enforcement of the charging order. On 16 June 2015, Master R Lai transferred the matter to the District Court which became DCMP 2179/2015 (“Second Action”). At the hearing before Master R Lai, Hon appeared in person and filed an affirmation claiming her alleged beneficial interest in the Property.

3. The OS was first heard at the District Court on 22 September 2015 by Master D To. Hon did not turn up and the OS was adjourned to 13 October 2015 for, inter alia, updated valuation report of the Property. Hon did not appear on 13 October 2015 and an order for sale of the Property was made. The writ of possession was issued on 1 February 2016.

4. On 19 February 2016, Hon, in person, filed another affirmation claiming her alleged beneficial interest and took out a summons for her joinder in the Second Action and for stay of execution of the writ of possession. The summons was dismissed by Master M Lam after hearing Hon in person on 25 February 2016.

5. Hon then instructed solicitors and on 16 August 2016, a notice of appeal was filed by Messrs Leung Kin & Co. (“LK”) on her behalf in respect of the decision of Master M Lam dated 25 February 2016, as well as a summons for extension of time for the appeal. On 30 September 2016, a further summons for adducing fresh evidence was taken out by LK on behalf of Hon. The fresh evidence is the 2nd Affirmation of Hon Yuen Wan dated 27 September 2016 and the Affirmation of Han Zhanming of the same date.

6. Despite this pending appeal of the Master’s decision, another summons for joinder of Hon as a party to the First Action (“First Joinder Summons”) was filed by LK on 7 May 2016, which included a request for the discharge of the charging order obtained by the plaintiff in respect of the Property. A similar summons for joinder of Hon was also filed by LK in respect of the Second Action on 7 May 2016 (“Second Joinder Summons”).

7. On the same day when the First Joinder Summons and the Second Joinder Summons were filed in court, Hon issued the Writ in another action commenced against the defendant, DCCJ 2167/2016 (“Third Action”). After having obtained an order for substituted service, Hon applied by summons dated 6 September 2017 for default judgment in the Third Action (“Default Judgment Summons”).

8. The Default Judgment Summons was heard by District Judge W Tsui on 3 November 2017. LK had been representing Hon in the Third Action until after the skeleton submissions and the hearing bundle had been filed with the court on 31 October 2017, when Hon filed a Notice to Act in Person. At the hearing of the Default Judgment Summons, Hon did not inform the court of the First Action or the Second Action, nor the various applications for her to be joined as party in those actions. Default judgment was entered against the defendant in the Third Action on 3 November 2017.

9. Subsequently, upon coming to notice of the First Action and the Second Action and the role or intended role of Hon in them, the learned judge, by her Order dated 8 November 2017, set aside the Order she made on 3 November 2017 and adjourned the application for default judgment in the Third Action to be heard together with the above-mentioned applications in the First Action and the Second Action on 10 November 2017.

10. The plaintiff had since learnt about the Default Judgment Summons. On 10 November 2017, the plaintiff filed a summons seeking to be joined as a party to the Third Action (“Third Joinder Summons”).

11. I have therefore the following matters before me on 10 November 2017:-

(1) In respect of the First Action, the First Joinder Summons;

(2) In respect of the Second Action,

(a) Appeal against the decision of Master M Lam dated 25 Feb 2016 (“DCMP Appeal”);

(b) Application for extension of time to file the notice of appeal (“Time Summons”);

(c) Application for adducing fresh evidence (“Evidence Summons”); and

(d) the Second Joinder Summons;

(3) In respect of the Third Action, the Default Judgment Summons and the Third Joinder Summons.

12. The Default Judgment Summons was the first to be dealt with at the hearing. Hon, acting in person, and the plaintiff agreed to the adjournment of the Default Judgment Summons and the Third Joinder Summons pending determination of the various applications and appeal filed on her behalf in the First Action and the Second Action. I therefore adjourned the Default Judgment Summons and the Third Joinder Summons sine die with liberty to restore and with costs reserved.

13. In respect of the above applications in the First Action and the Second Action, after some arguments had been made by both sides, they came to agreement on how to proceed further and sought the following directions from court, which were granted:-

“Parties to jointly inform the court in writing on whether there would be consent to the joinder of Hon in the First Action and the Second Action as a result of a material change in circumstances within 14 days hereof;

If parties come to agreement on joinder of Hon in the First Action and the Second Action,

each party shall file written submissions on costs within 14 days thereafter;

Issue on costs to be dealt with by the court by way of paper disposal.”

14. Parties filed written submissions on costs by 8 December 2017, before any joint notice to the court had been filed. There has been some delay in the filing of the joint notice after Hon filed Notice to Act in person on 11 December 2017 for both the First Action and the Second Action. The joint notice was eventually lodged on 4 January 2018, recording consent of the plaintiff and Hon to the joinder of Hon as a party in the First Action and the Second Action on ground that there has been a material change in circumstances.

15. This is my decision on costs.

16. On the legal principles applicable, I accept the position as set forth in the following passage in Famous Marvel Co Ltd v Conversant Group Ltd HCA 2153/2009, unreported, 29 October 2012, which was quoted in the written submissions of Mr To:-

“There is no dispute that even if a case is settled except as to costs, the Court sill has power to determine which party should be liable for costs. There is no tradition for there to be ‘no order as to costs’ in such a scenario. I am guided by the following principles in deciding costs:

(i) The Court is to decide if the party seeking costs has substantially obtained the reliefs sought in the litigation: Re Chinese United Establishment Ltd HCCW 291/1994, 5 October 1995, Roger J (as he then was), approved in CACV 214/1995; Lai Yuet Chun v Super Deluxe International Limited & ors, HCCW 186/2001, 3 June 2003 Kwan J (as she then was).

(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the...

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