Urban Property Management Ltd And Another v Tsang Wing Lam

Judgment Date03 November 2009
CourtDistrict Court (Hong Kong)
Judgement NumberDCMP2185/2004
Subject MatterMiscellaneous Proceedings
DCMP002185H/2004 URBAN PROPERTY MANAGEMENT LTD AND ANOTHER v. TSANG WING LAM

DCMP 2185/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2185 OF 2004

____________

IN THE MATTER of a Deed of Mutual Covenant dated 13th October 1983 and registered in the Shatin New Territories Land Registry with Memorial No. 239788 (“the DMC”)
and
IN THE MATTER of the property known as All Those 19/27,772nd parts or shares of and in All Those piece or parcel of ground registered in the Shatin New Territories Land Registry as SHATIN TOWN LOT NO. 230 And of and in the messuages erections and buildings thereon known as “King Tin Court” Together with the full and exclusive right and privilege to hold use occupy and enjoy All That Flat 5, 23rd Floor Block C (Bing Sam House), King Tin Court, 12 Chui Tin Street, Shatin, New Territories, Hong Kong, comprised in a Memorandum of Charge dated 11th September 2001 made pursuant to the DMC and in favour of Urban Property Management Limited and registered in the Shatin New Territories Land Registry with Memorial No. 1244690
and
IN THE MATTER of section 19 of the Building Management Ordinance (Cap.344)
and
IN THE MATTER of Order 88 Rules 1 and 5A of the Rules of the District Court (Cap.336)

______________________

URBAN PROPERTY MANAGEMENT LIMITED 1st Plaintiff
THE INCORPORATED OWNERS OF KING TIN COURT 2nd Plaintiff
and
TSANG WING LAM (曾榮林) Defendant

______________________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 2 November 2009

Date of decision: 3 November 2009

D E C I S I O N

1. Tsang, the Defendant, is the registered owner of the captioned property at Flat 5, 23rd Floor, Block C, King Tin Court, Shatin, New Territories (“the Property”). The 1st Plaintiff is the manager and the 2nd Plaintiff is the owners’ corporation of the building. On 11 September 2001, the manager registered in the Land Registry the captioned Memorandum of Charge against the Property for unpaid management expenses (“the MOC”).

2. In 2004, the manager commenced the present originating proceedings to recover the amount due and owed by Tsang as well as to enforce the MOC by an order for possession and sale of the Property. The owners’ corporation was subsequently joined as a plaintiff. On 4 August 2006, HH Judge HC Wong granted the order sought by the Plaintiffs (“the 4/8/06 Order”).

3. Besides this decision, I am also handing down today this court’s decision in respect of Tsang’s another appeal against the Master’s refusal to release the Property from the security constituted by the MOC. Much of the history of this case can be found mentioned in that decision. I do not intend to repeat the same here. I also refer to the terms of the DMC, the MOC and the various orders in these proceedings cited in that decision.

4. Insofar as this appeal is concerned, it suffices for me to say that pursuant to an Allocatur dated 2 July 2008, Tsang’s liability for legal costs as ordered by the court in these proceedings was taxed at the total sum of HK$411,012. Tsang has yet and, as he reiterated in this hearing, refused to pay the same. In respect of such taxed costs (together with statutory interest and costs of the application), the Plaintiffs have obtained, among others, a charging order against the Property. The order was made absolute on 27 August 2009.

5. Tsang has applied to set aside the charging order but was dismissed by the Master. Tsang appeals. The hearing of his appeal will be held on 14 December 2009. In the meantime, Tsang has applied for stay of execution of the charging order absolute pending his appeal. On 30 October 2009, the Master dismissed such application with costs. Tsang immediately filed his notice of appeal which is now before this court.

The principle

6. The law is trite. An appeal does not operate as a stay of execution of the order being appealed against: see O.58, r.3 of the Rules of the District Court. A stay has to be justified and justification is demonstrated only if good reasons exist. An important consideration is whether the proposed appeal has strong grounds. This entails the court forming a preliminary view of the merits of the proposed appeal. See World Trade Centre Group Ltd & Anor v Resourceful River Ltd & Anor, CACV 70/1993 (12 May 1993).: Star Play Development Ltd v Bess Fashion Management Co Ltd, HCA 4726/2001 (7 June 2002). See also Hong Kong Civil Procedure 2009 at 59/13/1 (or the same paragraph in the 2010 edition).

Discussion

7. As far as possible, one can deduce out of Tsang’s affirmation and submission in court the following major arguments for the proposed appeal to be heard on 14 December:

(1) He is not liable to pay the taxed costs as the same did not form part of the amount specified in the MOC.

(2) The possession order under the 4/8/06 Order has already been executed and he has resumed possession. The Plaintiffs have...

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