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Tang Tim Chue v Tang Wing Hong And Others

Judgment Cited in Precedent Map Related
Vincent
Judgment Date04 February 2013
CourtHigh Court (Hong Kong)
Judgement NumberHCA1570/2012
Subject MatterCivil Action
HCA1570/2012 TANG TIM CHUE v. TANG WING HONG AND OTHERS

HCA 1570/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1570 OF 2012

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

BETWEEN

TANG TIM CHUE (鄧添柱) Plaintiff

and
TANG WING HONG (鄧永康) 1st Defendant
TANG CHE CHEUNG (鄧致祥) 2ndDefendant
TANG SUM YUEN (鄧森源) 3rdDefendant

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

AND

HCA 44/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 44 OF 2013

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

BETWEEN
TANG, BRANDON TIMOTHY (鄧律明) Plaintiff

and
TANG WING HONG (鄧永康) 1st Defendant
TANG CHE CHEUNG (鄧致祥) 2ndDefendant
TANG SUM YUEN (鄧森源) 3rdDefendant
-------------------------
(HEARD TOGETHER)

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

Before : Deputy High Court Judge Marlene Ng in Chambers
Date of Hearing : 22 January 2013
Date of Decision : 22 January 2013
Date of Handing Down Reasons for Decision : 4 February 2013

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REASONS FOR DECISION

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I. HCA 1570/2012

1. On 31 August 2012, Tang Tim Chue (“Tang Jr”) commenced HCA 1570/2012 (“Tang Jr Action”) to claim for damages against the 1st, 2nd and 3rd defendants (“D1, D2 and D3” or collectively “Ds”) on the following grounds:

(a) the Ds conspired with the tenant/buyer to unlawfully sell Lot No 1792 in DD130 in Tuen Mun (“TM Land”) owned by Tang Leuk Tso (“LT”) in breach of section 15 of the New Territories Ordinance Cap 97 by concealing the fact that they were not the registered managers of LT, thereby committing a fraud on the members of the LT;

(b) the Ds misled the courts in HCA 1944/2007 and CACV 196/2010 by concealing the fact that they were not the registered managers of LT, thereby causing the courts to grant incorrect judgments.

2. Tang Jr did not formally file any Statement of Claim. But on 1 September 2012, he filed an affirmation that gave further particulars of his claim. D1, D2 and D3 filed their Defence on 14 September 2012, 21 September 2012 and 3 December 2012 respectively. Tang Jr and the Ds were all self-represented litigants.

3. By a summons dated 3 September 2012 (“Summons”), Tang Jr applied for prohibitory injunction orders to restrain the Ds:

(a) from managing and/or selling the TM Land in the capacity of registered managers of LT;

(b) from using the sale proceeds of over HK$5,000,000.00 (“Proceeds”) from the unlawful sale of the TM Land owned by LT as a result of the fraud and conspiracy referred to in paragraph 1 above.

Tang Jr further applied for an order requiring the Ds to pay the Proceeds into court if they had received the Proceeds, or alternatively for an order to schedule trial/hearing dates if they had not received the Proceeds.

4. Tang Jr filed various affirmations dated 3, 5, 14 and 17 September, 3 October and 11 December 2012 to support the Summons. D1, D2 and D3 filed affirmations in opposition to the Summons on 15 October, 15 October and 3 December 2012 respectively.

5. On 9 January 2013, Tang Jr’s son Tang Lut Ming also known as Tang Brandon Timothy (“TLM”) applied by summons to join in the Tang Jr Action as a co-plaintiff. On 16 January 2013, Master Au-Yeung dismissed the application with no order as to costs.

6. The substantive hearing of the Summons was returnable before me on 22 January 2013 (“Hearing”).

II. Attendance at the Hearing

7. Tang Jr, TLM and D1 were present but D2 and D3 were absent at the Hearing. D2 and D3 purportedly authorised D1 to act on their behalf by way of a written authorisation dated 21 January 2013. They had not made any application to the court for leave to have D1 address the court on their behalf. In the absence of any such application and given that D1, D2 and D3 were sued personally and not as managers of LT, I was not prepared to grant leave for D1 to represent D2 and D3 at the Hearing. D2 and D3 were treated as absent at the Hearing.

8. Ms Chan appeared for the Official Receiver at the Hearing. She informed the court that a bankruptcy order was made against Tang Jr on 7 January 2013 in HCB 6075/2012 (“Bankruptcy Order”). Tang Jr did not dispute this.

III. Summons in the Tang Jr Action

9. Ms Chan submitted that in light of the Bankruptcy Order the Summons should be adjourned sine die since Tang Jr was no longer entitled to prosecute such application.

10. Tang Jr submitted that he was surprised by the Bankruptcy Order which he claimed was made very suddenly. He said the bankruptcy proceedings were the result of a conspiracy between the Ds (who had no defence to his claim in the Tang Jr Action and/or in the Summons) and the creditor (who petitioned for his bankruptcy) with a view to ensure avoidance of the substantive hearing of the Summons. However, since the TLM Summons in the TLM Action (as referred to in paragraphs 15-16 below) also returnable at the Hearing sought reliefs similar to those sought in the Summons in the Tang Jr Action, Tang Jr did not strongly oppose Ms Chan’s stance.

11. As for D1, he also did not wish to have the Summons adjourned sine die. He said that as evident from his Defence and his affirmation in opposition in the Tang Jr Action, the matters now raised by Tang Jr in fact had been the subject of litigation since 2007 (see the judgment of Chung J dated 25 June 2010 in HCA 1944/2007) and appeal since 2010 (see the judgment of the Court of Appeal dated 6...

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