Case Detail

HCA 897/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 897 OF 2000

____________

BETWEEN

	DBS BANK (HONG KONG) LIMITED	Plaintiff
	formerly known as Dao Heng Bank Limited
	[the successor bank of DBS KWONG ON BANK LIMITED formerly known as KWONG ON BANK, LIMITED pursuant to Dao Heng Bank Limited (Merger) Ordinance Cap. 1172]
	and
	NGAI YIM SHING	1^st Defendant
	EVERGROW WATCH MANUFACTURERS	2^nd Defendant
	O/B EASTGRACE DEVELOPMENT LIMITED
	LEE SIU MING	Applicant

____________

Before: Hon Lam J in Chambers

Dates of Hearing: 16 and 24 November 2004

Date of Decision: 24 November 2004

Date of handing down Reasons for Decision in Open Court: 29 November 2004

______________________________

REASON FOR DECISION

_______________________________

1. On 24 November 2004, after hearing submissions from the parties, I dismissed the Applicant Lee Siu Ming’s appeal against the decision of Master Lung dated 25 October 2004. I now give reasons for my decision.

2. Master Lung’s order was for dismissal of the Applicant’s application under a summons of 20 October 2004. The summons was a homemade one written in Chinese. In the summons, the Applicant asked for the following relief which could be translated literally as “stay of execution of a Notice to Occupant”,

“暫緩執行《給佔用人通知書》”

Attached to the summons was a Notice to Occupier issued by the Bailiff on 19 October 2004. The notice was in the following terms,

“Notice to Occupier

Action No. : HCA897/2000

1. Pursuant to the Writ of Possession of the above-mentioned action, possession of the premises i) Flat H, 11th Floor, Block 16, Sceneway Garden, 8 Sceneway Road, Kowloon and ii) Car Parking Space No.CP56 on Level 29.65 (L4) on Site 2 of Sceneway Garden, 8 Sceneway Road, Kowloon, Hong Kong is to be delivered to the Plaintiff before 26.10.2004.
2. Any occupier who claims a right to remain on the premises in question should make application to the High Court without delay.

3. For enquiries, please contact Senior Bailiff Mr Wong at :

Bailiff Kowloon Possession Office
Room 208, 2/F, Lands Tribunal Building,
38 Gascoigne Road, Yaumati, Kowloon
Tel : 2170 3834”

This should not be the first notice the Applicant received regarding the order for possession since she had made an earlier application for stay of execution on 8 September 2004.

3. Giving allowance to the fact that the Applicant is legally unrepresented, it seems that what she sought was a stay of execution of the writ of possession. Her ground of application was set out in an affirmation of 25 October 2004. She claimed that she was a tenant of the suit premises and when she rented the property, she was unaware of the legal proceedings. She said she had rented another place for her residence but she could only moved in by the end of December. She also said due to her unemployment and the poor economic climate, she did not have enough money to move elsewhere at this stage. She asked for indulgence from the court. As mentioned, Master Lung dismissed her application. Pending appeal, Master Kwang granted an interim stay of execution of the writ of possession until 16 November 2004 (the first hearing of this appeal).

4. On 16 November 2004, the Applicant did not attend the hearing due to other engagements. This court raised some queries with Mr Ho, solicitor for the Plaintiff and Mr Ho needed some time to look into the matter. The appeal was therefore adjourned to 24 November 2004.

5. At the hearing of 24 November 2004, the Applicant appeared in person and explained to this court that she had moved into the suit premises in early 2003 and the rent was $8,000 per month. She did not have the rent receipt because she agreed with the landlord that no rent receipt would be required. She told this court that the landlord told her if rent receipt was required, the rent would be $15,000. The landlord also said he reserved the right to rent a room in the premises to another person, hence the rent was lower.

6. It is not disputed that the Applicant had no notice of the present action prior to the issue of the writ of possession. This comes about in circumstances set out below. The Applicant said she only learnt of the order of possession in about September 2004 when the Bailiff first executed the writ of possession. She had in fact made an application for stay of the order for possession on 8 September 2004. On 15 September 2004, Master Hui granted a stay for 21 days. The Applicant should be aware by then that the landlord, viz. the 1^st Defendant, had no right to let the property to her. Despite that, she continued to pay rent due to the fact that the tenancy was, according to the Applicant, arranged through a friend.

7. I now turn to the relevant history of this action. The action is a mortgage action within the scope of Order 88, Rules of the High Court. The Plaintiff sues as mortgagee for, inter alia, possession of the property due to the defaults of the 2^nd Defendant as borrower. The 1^st Defendant was a guarantor. The nature of the claims have been fully set out in the judgment of Sakhrani J dated 24 May 2004.

8. The writ was issued on 25 January 2000. Due to various reasons, the action did not come on for trial until 24 May 2004. Although the Plaintiff’s solicitors had posted up the Writ of Summons at the suit premises at the commencement of action, no step has been taken since then to ascertain the identity of the occupants nor to post up further notice of the proceedings prior to the trial. Notice of judgment was also not posted by reason of the fact that Practice Direction 16.4 is not applicable since this is an Order 88 action, see Order 45 Rule 3(2).

9. The rationale for excluding Order 88 action from the requirement under Order 45 Rule 3(2) is explained in Para.88/5/14 of Hong Kong Civil Procedure 2004. It is said that the court will have considered the matters set out in Order 45 Rule 3 before the order is made. Similar explanation was given in Para.88/5/16 of Supreme Court Practice 1999. This is probably due to the requirement under Order 88 Rule 5(4) that a plaintiff claiming delivery of possession must file an affidavit giving particulars of every person who to the best of the plaintiff’s knowledge is in possession of the mortgaged property. Although Rule 5 is only applicable in respect of action commenced by originating summons, Rule 6(4) provides that the same requirement applies to leave application for default judgment in an action commenced by writ.

10. However, the present action was tried before Sakhrani J. The judgment was not entered by way of default judgment. Therefore no affirmation in compliance with Rule 5(4) has been filed. I was told by Mr Ho that evidence has been given by an officer of the Plaintiff at the trial before Sakhrani J that according to the Plaintiff’s records, the Plaintiff had not consented to any letting out of the suit premises by the mortgagor and the 1^st Defendant remained in possession. Under Clause 10 of the Legal Charge in respect of the suit premises, the 1^st Defendant could not let out the same without the consent of the Plaintiff.

11. The Plaintiff had apparently not investigated adequately into the occupation of the suit premises since the commencement of the action. The evidence of the officer was therefore misleading. It gave an inaccurate impression to the court that the 1^st Defendant was in possession and an order for possession was granted on that basis.

12. In the context of the present case, this may not matter very much in the end since the Applicant’s tenancy could not bind the Plaintiff in view of Clause 10 and the lack of consent from the Plaintiff. However, the case does demonstrate that there is a loophole in the rules. In the absence of any positive duty on the part of a mortgagee to ascertain the identity of the occupants before getting an order for possession (I do not intend to consider whether there is such a duty in this Reasons for Decision since the matter has not been argued before me), the only safeguard for the occupier is the posting up of the writ at the commencement of the action. However, if there is a long lapse of time between commencement of action and the making of order for possession (as in the present case), there could be changes in occupancy in the meantime.

13. Usually, a mortgage action could be disposed of relatively expeditiously, especially if it is commenced by Originating Summons. If the hearing is within 6 months’ time, it might be a safe working assumption that there had been no change in occupation of the suit premises and the posting up of the writ can serve as adequate notice of proceedings given to the occupants. However, as the history of the present action demonstrates, there are exceptions. One may therefore wonder whether there should be any distinction in the requirements for the issue of writ of possession between Order 88 actions and other types of action where possession is sought especially when there is a long lapse of time between commencement and trial of an Order 88 action. Be that as it may, the existing rules provide for an exception in relation to Order 88 action.

14. It is against these backgrounds that the Applicant did not receive any notice of the action prior to the execution of the writ of possession by the Bailiff. As mentioned, by reason of Clause 10 and the lack of consent of the Plaintiff for the letting, she cannot rely on any right to resist the Plaintiff’s claim for possession.

15. As a matter of strict legal rights, the Applicant has no ground to ask for stay of execution. In Leicester City Council v Aldwinckle (1991) 24 HLR 40, the English Court of Appeal held that in the absence of rules requiring notice to be given to a tenant, the court cannot on its own motion insist on such notice being given before leave is granted for issue of writ of possession. By the same parity of reasoning, under the existing rules, given that leave is not required for issue of writ of possession for an Order 88 action (and the issue of writ is in such circumstances an administrative act as opposed to a judicial act, see Tuohy v Bell [2002] EWCA Civ 423, 27 March 2002, Para.22), the court cannot insist on actual notice being given to occupier before a writ of possession could be regarded as validly issued. Hence, notwithstanding the lack of notice on the part of the Applicant as to the proceedings prior to the issue of writ of possession, the writ was valid.

16. Although the court also has the inherent power to prevent abuse of proceedings and avoid oppression, the English Court of Appeal in Aldwinckle also held that the use of available process does not of itself constitute abuse nor amount to oppression. Leggatt LJ said at p.46,

“…the court would be interfering unjustifiably with the existing policy of Parliament were it to introduce its own requirements as to additional conditions that have to be satisfied before execution may issue.”

See also London Borough of Hammersmith & Fulham v Hill (1994) 27 HLR 368.

17. The only remaining basis on which a stay of execution can be granted is indulgence.

18. Indulgence had been given to the Applicant by Master Hui in September 2004. Whilst the court no doubt has the inherent power to grant a stay of execution to give an occupant reasonable time to vacate from the suit premises, that power should not be exercised in a manner incompatible with the position that a plaintiff is entitled to the fruit of his judgment. As Huggins J observed in Lo Chi v Protective Gloves Manufactory Ltd [1969] HKLR 626,

“As it seems to me the court has to ride a course between making a new contract between the parties and doing injustice to the defendants by giving them insufficient time to move out. In my view the most important aspect is that the judicial discretion should be exercised so as to give the defendants no more than is reasonably necessary to enable them to vacate the premises and that I should not have more than a passing regard to the need for them to move into new premises.”

19. It is also important to bear in mind that there is an inevitable time lapse between any court order and the actual execution by the Bailiff (as demonstrated by the Notice issued by the Bailiff set out above). To that extent, there is already some margin of indulgence built into the system. In the present case, the order for possession was granted on 24 May 2004 and the Plaintiff has yet to get actual possession of the suit premises.

20. On the facts of the present case, I am of the view that the indulgence granted by Master Hui already gave the Applicant a reasonable time to vacate from the premises. Whilst I have every sympathy with her personal predicament, it would not be fair nor appropriate for me to grant her further time. In my judgment, to delay the execution process further would tantamount to an unjustified curtailment of the Plaintiff’s right to have the fruit of the judgment.

21. I wish to mention a point that emerged from the submissions made at the hearing. The Applicant said she leased the property from the 1^st Defendant in early 2003. However, the 1^st Defendant was actually made bankrupt in HCB 15643 of 2002 on 2 December 2002. He therefore had no right to lease the suit premises and had no right to collect rent from the Applicant. Of course, I have not heard from the 1^st Defendant and he might dispute these assertions by the Applicant. However, I would direct that a copy of this decision be given to the Official Receiver so that these matters might be looked into in relation to the affairs of the bankrupt.

22. Since the Applicant is unrepresented, I direct my clerk to inform her by letter that if she so wishes, she could make an appointment within 14 days with the Court Interpreter through my clerk to arrange for having the Reasons for Decision interpreted to her orally.

23. Lastly, I wish to thank Mr Ho for his assistance. He quite fairly acknowledged that under the existing regime, Order 88 may not contain sufficient safeguards to bring notice of proceedings to occupants when there is a long lapse between date of commencement of action and date of order. This is something which warrants further considerations. In the meantime, the profession should be alerted to this problem and I venture to suggest that even though the rules contain no such requirement, it would be good practice to give notice of trial or alternatively notice of order for possession to the occupants when there is a long lapse of time between date of writ and date of trial or order to cater for change of occupancy in the meantime. It is in the interest of all concerned that the occupants were given opportunity to seek relief as soon as possible.

24. As the matter is of some general interest, I direct the Reasons for Decision to be handed down in open court.

	(M H Lam)
	Judge of the Court of First Instance
	High Court

Mr C Ho, of Messrs Ho and Wong, for the Plaintiff

The Applicant, LEE Siu-ming, in person

HCA000897/2000

HCA 897/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 897 OF 2000

BETWEEN
	DBS BANK (HONG KONG) LIMITED formerly known as Dao Heng Bank Limited [the successor bank of DBS KWONG ON BANK LIMITED formerly known as KWONG ON BANK, LIMITED pursuant to the Dao Heng Bank Limited (Merger) Ordinance Cap. 1172]	Plaintiff

	AND

	NGAI YIM SHING	1st Defendant
	EVERGROW WATCH MANUFACTURERS O/B EASTGRACE DEVELOPMENT LIMITED	2nd Defendant

Coram : Hon Sakhrani J in Court

Date of Hearing : 24 May 2004

Date of Judgment : 24 May 2004

_________________

J U D G M E N T

_________________

1. The plaintiff claims in this action as mortgagee in respect of 5 properties under 4 legal charges whereby the 1st defendant as the mortgagor charged to the plaintiff the 5 properties as collateral for banking facilities which the plaintiff provided to the 2nd defendant as the borrower. The plaintiff also claims against the 1st defendant as a guarantor under a guarantee dated 12 July 1996 ("the guarantee") whereby the 1st defendant in consideration of the plaintiff making or continuing advances or otherwise giving credit or affording banking facilities for the account of the 2nd defendant undertook to pay to the plaintiff on demand all sums of money which were then or should at any time thereafter be owing to the plaintiff by the 2nd defendant on any account whatsoever together with all interest commission and other charges due to the plaintiff on a full indemnity basis.

2. The plaintiff is a bank. At all material times, the 1st defendant was a director and shareholder of the 2nd defendant, the borrower. These proceedings concern 5 properties as follows :

(1) All Those 44 equal undivided 3,232nd parts or shares of and in All That piece or parcel of ground registered in the Tsuen Wan New Territories Land Registry as Tsuen Wan Town Lot No. 229 And of and in the messuages erections and buildings thereon now known as "Mega Trade Centre (時貿中心)" together with the sole and exclusive right and privilege to hold use occupy and enjoy All Those Workshops Nos. 4, 5 and 6 on the Thirteenth Floor of Mega Trade Centre ("the 1st property");
(2) All Those 286 equal undivided 754,000th parts or shares of and in All That piece or parcel of land lying and situate at Area 10L, Kwai Chung, New Territories and registered in the Tsuen Wan New Territories Land Registry as Kwai Chung Town Lot No. 398 And of and in the messuages erections and buildings thereon now known as Kwai Chung Plaza (葵涌廣場) together with the sole and exclusive right and privilege to hold use occupy and enjoy All That Shop Unit No. 3055 on the Third Floor (Level 5) Kwai Chung Plaza ("the 2nd property");
(3) All That the estate right title benefit and interest of and in All Those 160 equal undivided 611,133rd parts or shares of and in All Those 80,000 equal undivided 100,000th parts or shares of and in All That piece or parcel of ground registered in the Land Registry as New Kowloon Inland Lot No. 6046 And of and in the messuages erections and buildings thereon known as "Sceneway Garden (匯景花園)" together with the sole and excusive right and privilege to hold use occupy and enjoy All That Flat H on the Eleventh Floor of Block 16 of Sceneway Garden ("the 3rd property");
(4) All That the estate right title benefit and interest of and in All Those 7 equal undivided 611,133rd parts or shares of and in All Those 80,000 equal undivided 100,000th parts or shares of and in All That piece or parcel of ground registered in the Land Registry as New Kowloon Inland Lot No. 6046 And of and in the messuages erections and buildings thereon now known as "Sceneway Garden (滙景花園)" together with the sole and exclusive right and privilege to hold use occupy and enjoy All That Car Parking Space No. CP56 on Level 29.65 (L4) on Site 2 of Sceneway Garden ("the 4th property");

(5) All That one equal undivided 28th part or share of in All That piece or parcel of ground registered in the Land Registry as The Remaining Portion of Subsection Nine of Section A of Kowloon Inland Lot No. 1992 And The Extension thereto And of and in the messuages erections and buildings thereon known at the date hereof as Nos. 21 and 23 Yin On Street and Nos. 22 and 24 Shim Luen Street together with the sole and exclusive right and privilege to hold use occupy and enjoy All That Ground Floor of the said No. 23 Yin On Street ("the 5th property");

3. By a legal charge dated 15 July 1996 and registered in the Tsuen Wan New Territories Land Registry by memorial number TW1091079 ("the 1st legal charge") and made between the 1st defendant as the mortgagor of the first part, the 2nd defendant as the borrower of the second part and the plaintiff as the bank of the third part, the 1st defendant by way of legal charge charged the 1st property and the 2nd property to the plaintiff to secure general banking facilities and interest granted by the plaintiff to the 2nd defendant.

4. By a legal charge dated 3rd March 1997 and registered in the Urban Land Registry by memorial numbers 7253776 and 7417157 ("the 2nd legal charge") and made between the 1st defendant as the mortgagor of the first part, the 2nd defendant as the borrower of the 2nd part and the plaintiff as the bank of the 3rd part, the 1st defendant by way of legal charge charged the 3rd property to the plaintiff to secure general banking facilities to any extent and interest granted by the plaintiff to the 2nd defendant.

5. By a legal charge dated 3 June 1997 and registered in the Urban Land Registry by memorial number 7147386 ("the 3rd legal charge") and made between the 1st defendant as the mortgagor of the first part, the 2nd defendant as the borrower of the second part and the plaintiff as the bank of the third part, the 1st defendant by way of legal charge charged the 4th property to the plaintiff to secure general banking facilities and interest granted by the plaintiff to the 2nd defendant.

6. By a legal charge dated 21 October 1997 and registered in the Urban Land Registry by memorial number 7337281 ("the 4th legal charge") and made between the 1st defendant as the mortgagor of the first part, the 2nd defendant as the borrower of the second part and the plaintiff as the bank of the third part, the 1st defendant by way of legal charge charged the 5th property to the plaintiff to secure general banking facilities and interest granted by the plaintiff to the 2nd defendant.

7. There has been default in repayment of amounts under the legal charges. Despite demands the 1st and 2nd defendants have failed to repay the plaintiff the amounts outstanding.

8. A bankruptcy order dated 2 December 2002 has been made against the 1st defendant.

9. The plaintiff applied for and was granted leave with the consent of the Official Receiver to proceed with this action against the 1st defendant in his own name. By order dated 24 June 2003 Master S. Kwang made an order by consent between the plaintiff and the Official Receiver that notwithstanding the bankruptcy order dated 2 December 2002 against the 1st defendant leave should be granted to the plaintiff to proceed with this action against the 1st defendant subject to the conditions as stated in the schedule to the order for, inter alia, :

(1) recovery of vacant possession of the 5 properties;
(2) money judgment for payment of the money due to the plaintiff under and secured by the 1st legal charge, the 2nd legal charge, the 3rd legal charge and the 4th legal charge; and
(3) costs.

10. The schedule provided that :

(1) no judgment or order obtained by the plaintiff (other than judgment or order for possession of the 1st property, the 2nd property, the 3rd property, the 4th property and the 5th property) shall be enforced against the 1st defendant without leave of the court; and
(2) the plaintiff shall not apply for an order for costs personally against the Official Receiver or the trustee in bankruptcy.

11. A winding-up order was made against the 2nd defendant on 9 October 2002. The effect of this is that no action or proceeding shall be proceeded with against the 2nd defendant except by leave of the court (Section 186 Companies Ordinance Cap. 32). No such leave has been sought and the action against the 2nd defendant cannot be proceeded with. The plaintiff does not seek to proceed with this action against the 2nd defendant.

12. I am only concerned with the plaintiff's claims against the 1st defendant at the trial of this action.

13. The 1st defendant has served a defence and counterclaim. There is no issue as to the execution and validity of any of the legal charges executed by the 1st defendant and the 2nd defendant. There is also no issue as to the execution and validity of the guarantee executed by the 1st defendant. That the 1st defendant is the registered owner of the 1st property, the 2nd property, the 3rd property, the 4th property and the 5th property is also not disputed.

14. By para. (3) of his defence the 1st defendant asserted that the legal charges are not connected to one another. He pleaded as follows :

“ The above mortgages are not connected to one another. The Plaintiff also promised that if one of the properties was to be sold, the balance for that individual property would be calculated. After the balance had been paid, it would discharge the mortgage of (that property) independently. Other loans would not be affected at all. When the Defendant negotiated with the Plaintiff over the terms of the loans, the Defendant repeatedly made this principle clear, and the Plaintiff agreed (with that) unequivocally."

15. He also pleaded at para. (8) as follows :

“ This litigation, based on the above facts, was purely caused by the Plaintiff's improper conduct, as a result of which the Defendant suffered substantial damages :
(a) Misleading the Defendant
When the Mortgage Loan Agreements were entered into, the Plaintiff clearly undertook that each mortgage loan would be independently calculated. As long as the Defendant could repay the specific mortgage loan, it could be freely sold. In fact, the Plaintiff misled the Defendant into believing that the undertaking previously made by the Plaintiff was valid, as a result of which the Defendant accepted the loans from the Plaintiff."

16. In essence, the 1st defendant alleged that there was an agreement to the effect that each of the 5 properties were separately and independently charged to the plaintiff under the 1st legal charge, the 2nd legal charge, the 3rd legal charge and the 4th legal charge to secure separate and specific loans so that each of the properties could be separately and independently redeemed so long as the related loans had been repaid. The plaintiff is alleged to have been in breach of the agreement and as a result the 1st defendant has suffered loss and damage. It is also alleged that there was a misrepresentation made by the plaintiff to the 1st defendant to the same effect as a result of which the 1st defendant suffered loss and damage.

17. It is also alleged at para. 8(b) of the defence that "only after the execution of the loan document did the Plaintiff issue a supplementary letter saying that the individual property would be calculated together with (other) mortgage loans".

18. There is also a counterclaim for loss and damage suffered by the 1st defendant.

19. There is also an allegation that after execution of the loan documents the plaintiff changed the handling fee and interest. By para. (11) of the counterclaim the 1st defendant alleged that the plaintiff overcharged the sum of HK$19,500.00 for handling fee. By para. (12) of the counterclaim the 1st defendant alleged that the plaintiff overcharged interest of HK$31,500.00. It is alleged that the interest rate for the mortgage loan should be prime lending rate plus 0.5% but the rate charged by the plaintiff was prime lending rate plus 0.75%. This was in relation to the 2nd legal charge whereby the 3rd property was charged.

20. Although the 1st defendant has served a defence and counterclaim he did not appear at the trial. The Official Receiver has also not appeared at the trial. No evidence has been adduced on behalf of the 1st defendant.

21. I heard evidence from Ms Tang Siu Fong, a manager of the plaintiff. I ordered that her witness statement dated 3 July 2002 and her supplemental witness statement dated 10 May 2004 should stand as her evidence-in-chief. I found her to be a truthful and honest witness and I have no hesitation in accepting her evidence. She produced the 1st legal charge, the 2nd legal charge, the 3rd legal charge and the 4th legal charge in evidence as well as the related loan agreements. She also produced the guarantee.

22. As I have said there was no evidence adduced on behalf of the 1st defendant. The burden is on him to establish the alleged agreement and the misrepresentation relied on in his defence and counterclaim. He has failed to do so. In any event there is no merit in the defences raised.

23. The assertion that each of the 5 properties were separately and independently charged to the plaintiff under the legal charges is contradicted by the very terms of the 1st legal charge, the 2nd legal charge, the 3rd legal charge and the 4th legal charge. It is clear from clause 2 of each of the legal charges that the 1st defendant's covenant to repay covered all debts owed by the 2nd defendant. Clause 3 made it clear that the legal charges were for unlimited amounts. And clause 4 made it clear that the 1st defendant's right of redemption was subject to repayment of all the debts owed by the 2nd defendant.

24. His assertions are also contradicted by

(a) the confirmatory letters signed by the 1st defendant being exhibits P13A, P13B and P13C; and
(b) the facilities' letter signed by the 1st defendant on behalf of the 2nd defendant being exhibit P12.

25. There is also no merit in the allegation that the plaintiff has overcharged HK$19,500.00 handling fee. This was said to be in relation to another property, not one of the 5 properties under the 4 legal charges. No evidence has been adduced on behalf of the 1st defendant to establish this allegation.

26. As to the allegation that interest has been overcharged in respect of the 2nd legal charge, exhibit P4 makes it plain that the interest on the loan that was agreed was 0.75% over prime lending rate. There was no question of the plaintiff changing the rate later on. There is also no merit in this allegation.

27. Ms Tang has by exhibit P14 set up the amounts outstanding and due by the 1st defendant as at today's date. I have no hesitation in accepting her evidence. This shows that the sum of HK$24,138,412.24 is due and owing by the 1st defendant to the plaintiff up to today.

28. I am satisfied that the plaintiff has proved its case. I reject the matters raised in the defence and counterclaim.

29. I am satisfied that the plaintiff is entitled to judgment as claimed. I give judgment in favour of the plaintiff against the 1st defendant as follows :

(1) The plaintiff do recover against the 1st defendant the total sum of HK$24,138,412.24 together with interest on the respective principal sums of HK$2,719,273.20, HK$4,105,234.70, HK$490,222.70, HK$999,518.20, HK$4,620,221.90 and HK$3,779,846.74 at judgment rate from 25 May 2004 until payment;
(2) The 1st defendant do within 28 days after service upon him of this order, deliver to the plaintiff vacant possession of

(a) the 1st property and the 2nd property, both under the 1st legal charge;
(b) the 3rd property under the 2nd legal charge;
(c) the 4th property under the 3rd legal charge; and
(d) the 5th property under the 4th legal charge.

(3) Upon the plaintiff being paid the money hereby ordered to be paid by the 1st defendant and other moneys (if any) secured to the Plaintiff by the 1st, 2nd, 3rd and 4th legal charges and guarantee respectively, the plaintiff (subject and without prejudice to the due exercise of any power of sale for the time being vested in them) do re-deliver possession of the 1st, 2nd, 3rd, 4th and 5th properties and release the securities by the1st, 2nd, 3rd and 4th legal charges to whatever party as this Honourable Court may direct, and there be liberty to apply for this purpose;

(4) The 1st defendant's counterclaim be dismissed;
(5) The 1st defendant do pay costs of the action on a solicitor-and-own-client basis to the plaintiff to be taxed if not agreed;
(6) There be liberty to apply.

30. I have ordered costs to be paid on a solicitor-and-own-client basis as this is clearly provided for by clause 2(d) in each of the legal charges.

	(Arjan H. Sakhrani)
	Judge of the Court of First Instance,
	High Court

Representation:

Mr. Keith Yeung, instructed by Messrs Ho and Wong, for the plaintiff

The 1st defendant, absent

DBS BANK (HONG KONG) LTD v. NGAI YIM SHING AND OTHERS

Related cases with same parties

Files (2)

1.	Pursuant to the Writ of Possession of the above-mentioned action, possession of the premises i) Flat H, 11th Floor, Block 16, Sceneway Garden, 8 Sceneway Road, Kowloon and ii) Car Parking Space No.CP56 on Level 29.65 (L4) on Site 2 of Sceneway Garden, 8 Sceneway Road, Kowloon, Hong Kong is to be delivered to the Plaintiff before 26.10.2004.

2.	Any occupier who claims a right to remain on the premises in question should make application to the High Court without delay.

3.	For enquiries, please contact Senior Bailiff Mr Wong at :

(a)	Misleading the Defendant

	When the Mortgage Loan Agreements were entered into, the Plaintiff clearly undertook that each mortgage loan would be independently calculated. As long as the Defendant could repay the specific mortgage loan, it could be freely sold. In fact, the Plaintiff misled the Defendant into believing that the undertaking previously made by the Plaintiff was valid, as a result of which the Defendant accepted the loans from the Plaintiff."