URBAN PROPERTY MANAGEMENT LTD AND ANOTHER v. TSANG WING LAM

   DCMP 3128/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2185 OF 2004

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D E C I S I O N

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Introduction

1.  Together with this Decision, I also handed down my decision on 2 applications by the Defendant in a related action DCMP 2185/2004 (“my other decision”). In that action the Plaintiffs obtained a charging order against the captioned property (“the Property”) in respect of unpaid costs of the proceedings taxed at HK$411,012.00. In my other decision, I dismissed the Defendant’s application to, in effect, set aside the Allocatur of the unpaid costs and to discharge the said charging order.

2.  By this action, the Plaintiffs seek to enforce the said charging order by way of an order for sale of the Property.

3.  The Defendant took out 2 summonses. He asked this court to dismiss this action and/or to deal with this action together with DCMP 2185/2004.

4.  The Defendant submitted that as the said charging order ought to be dismissed, the present action should also be dismissed. In view of my other decision refusing to discharge the said charging order, there is no force in this argument.

5.  The Defendant also suggested that as there was already an action on the subject matter in this court, namely DCMP 2185/2004, it is an abuse of process for the Plaintiffs to issue another action in a different number on the same matter.

6.  The present proceedings were brought under O.88, r.5A of the Rules of the District Court. As stated by the learned editor of the Hong Kong Civil Procedure 2010, “The usual manner of enforcement [of charging order]is made by fresh proceedings begun by originating summons and not by application in the proceedings in which the charging order was made”[1]. In fact, the Plaintiffs had initially adopted a wrong procedure by applying under DCMP 2185/2004 for the order for sale. The Master hearing the application rejected it on the ground that it should have been taken out by way of a separate action.

7.  The Defendant’s complaint is misconceived.

8.  Regarding whether to order that the 2 actions are to be dealt with together, I note that as a result of my other decision there is now no outstanding matter remaining in DCMP 2185/2004.

9.  The Defendant’s summonses are therefore dismissed.

10.  Mr. Wan, solicitors for the Plaintiffs, agreed that the affirmation in support of the Plaintiffs’ action filed thus far is inadequate and asked this court to adjourn this action to be properly dealt with by a Master.

11.  The Defendant has failed in his applications but on the other hand the Plaintiffs’ action needs to be adjourned for another direction hearing due to poor preparations. In view of the fact that the time spent on the present proceedings, when compared with that of DCMP 2185/2004, is minimal, the proper costs order should be no order as to costs. This costs order nisi shall become absolute after 14 days.

12.  This action be fixed for call-over hearing before a Master.

Messrs Leung & Wan for the 1^st and the 2^nd Plaintiffs

Defendant, in person, present