IP WAN FAT AND OTHERS v. KING UNION INTERNATIONAL INVESTMENTS LTD AND ANOTHER

HCA 240/2016
HCCT 85/2004
(heard together)

[2024] HKCFI 3387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 240 OF 2016

(Transferred from District Court Civil Action No 3870 of 2008)

________________________

BETWEEN

	IP WAN FAT	1st Plaintiff
	IP WAI HONG	2nd Plaintiff
	SUNG HAU TAK	3rd Plaintiff
	IP MIU HA	4th Plaintiff
	IP WAI MAN RAYMOND	5th Plaintiff
	and
	KING UNION INTERNATIONAL INVESTMENTS LIMITED	1st Defendant
	HO KWOK WA	2nd Defendant

________________________

AND

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 85 OF 2004

(on transfer from HCA 2358/2002)

BETWEEN

	IP WAN FAT	1st Plaintiff
	IP WAI HONG	2nd Plaintiff
	SUNG HAU TAK	3rd Plaintiff
	and
	YUEN CHAK CONSTRUCTION COMPANY LIMITED	Defendant

________________________

Before:

Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing:	20 August 2024
Dates of Supplemental Written Submissions:	19 September 2024 and 3 October 2024
Date of Decision:	25 November 2024

________________________

D E C I S I O N

________________________

1.  Before this Court is the application made by the Plaintiffs in HCA 240 of 2016 (“HCA 240”)  for the action to be tried together with HCCT 85 of 2004 (“HCCT 85”), and for the evidence filed in the two proceedings to be mutually admissible for such purpose.

2.  HCCT 85 (formerly HCA 2358/2002)  was commenced in June 2002 by 3 Plaintiffs, who were then the registered owners of the Remaining Portion of Section X, and Subsection 2 of Section X, of Lot No 3335 (“Lot”)  in Demarcation District 91 (“Plaintiffs’Land”). The defendant named in HCCT 85 is Yuen Chak Construction Company Limited (“YC”). YC was at the material time the registered owner of the adjoining land, namely Lot 3335 SW of the Lot (“Defendant’s Land”).

3.  According to the Statement of Claim filed in HCCT 85, the Plaintiffs alleged that YC had entered the Plaintiffs’ Land and had erected a fence on a portion of the Plaintiffs’ Land, excluding the Plaintiffs therefrom, without the Plaintiffs’ knowledge or consent. The Plaintiffs therefore claimed damages for trespass, a declaration that the defendant is not entitled to enter, use or build fence on the Plaintiffs’ Land, and an injunction to restrain the defendant, by itself, servants or agents, from entering, using or building on the Plaintiffs’ Land.

4.  The defence relied upon by YC is that it was not a trespasser, as it claimed that there had been an agreed boundary for the Plaintiffs’ Land and the Defendant’s Land, pursuant to a site visit made and agreement reached between YC and the owners of Section X of the Lot, in early 1992 (“1992 Agreement”).

5.  Pleadings had been closed, factual and expert evidence had been filed, and trial dates had been fixed for October 2004, before they were vacated as a result of amendments made by YC to its Defence shortly before trial.

6.  HCA 240 (formerly DCCJ 3870/2008)  was commenced in September 2008 by the 3 Plaintiffs (the 4^th and 5^th Plaintiff were subsequently joined), as the registered owners of the Plaintiffs’ Land against the 1^st Defendant named, King Union International Investments Limited (“King”), as the registered owner of Section W of the Lot, and the 2^nd Defendant (“Ho”)  who was a director and secretary of YC (pleaded to be the predecessor in title of King’s property).

7.  The Plaintiffs allege in HCA 240 that since May 1999, YC had through Ho trespassed the Remaining Portion and Subsection 2 of Section X (“Section X”)  of the Plaintiffs’ Land by erecting a fence to draw the boundary between Section X and Section W of the Lot.  It was alleged that the trespass had continued despite and after assignment of the Defendant’s land or the relevant part thereof to King in May 2005. According to the Plaintiffs, King and Ho had on 5 June 2008 entered Section X, removed a part of the fence, and relocated it so as to further widen Section W, and diminishing Section X of the Lot.

8.  By way of defence, King relies on the same 1992 Agreement and the boundary allegedly agreed between YC and the then owners of Section X.

9.  By amendments made in April 2021 to the Defence filed in HCA 240, King included a new claim of adverse possession and proprietary estoppel. It was alleged that King and its predecessors in title, YC and Yuen Wa Engineering Company Limited (“YW”), had been in continuous adverse possession of the part of the Plaintiffs’ Land for a period of no less than 12 years by 27 April 2004, before the commencement of HCA 240.

10.  In short, King relies in HCA 240 on the period of possession by YC, to establish its own claim of adverse possession against the Plaintiffs.

11.  After the initial trial dates of HCCT 85 were vacated, a winding-up order was made against YC on 2 December 2004. Section W of the Lot had also been assigned on 18 July 2003 by YC to YW, and on 7 May 2005, by YW to King. As a result, and on the Plaintiffs’ evidence, their claims in HCCT 85 against YC for damages for trespass, and a declaration and injunction against YC did not become “pressing”, and HCCT 85 was not proceeded with.

12.  It was only on 11 November 2022, that the Plaintiffs obtained leave in HCCT 85 to proceed with the action.

13.  In the meantime, HCA 240 was commenced by the Plaintiffs in September 2008 against King, the then-current registered owner of Section W/the Defendant’s Land, and against Ho, the director of YC, in respect of the steps of alleged trespass taken by King and by Ho.

14.  After the amendments made in the Re-Re-Re-Re-Re-Amended Defence and Counterclaim in HCA 240, expert and factual evidence was filed. It was only on 29 May 2023 that the Plaintiffs applied for HCA 240 and HCCT 85 to be tried at the same time and be heard together.

15.  The thrust of King’s opposition to the Plaintiffs’ application for consolidation is that no good reason has been given by the Plaintiffs for their inordinate and inexcusable delay and the inaction on their part in the conduct of HCCT 85, which the Court should consider as liable to be struck out as abuse of process, and as being in contravention of the underlying objectives set out in Order 1A rule 1(b)  RHC (“Objectives”). It is alleged that the true reason for the Plaintiffs to continue now with HCCT 85 is really to prevent King from relying on the period of YC’s adverse possession of the relevant part of the Plaintiffs’ Land, and to claim that the period of YC’s adverse possession had stopped to run from the Plaintiffs’ commencement and continuation of HCCT 85 against YC. King claims that the Plaintiffs have no genuine intention to bring HCCT 85 to a conclusion.  For these reasons, and the prejudice caused to King as a result of the Plaintiffs’ 18 years of delay in the conduct of HCCT 85, King argued that the Court should not permit or condone in the Plaintiffs’ conduct of warehousing their claims in HCCT 85, and re-activating now those proceedings for tactical purposes only.

16.  Counsel for King argued that if the only reason the Plaintiffs have for trying HCCT 85 and HCA 240 together is to prove that time had stopped running for adverse possession from the commencement of HCCT 85, it is not necessary to have a full trial of HCCT 85 at the same time as HCA 240, as this limited point can be argued at the trial of HCA 240 itself, without involving the Court in all the factual and legal disputes in HCCT 85.

17.  Although it is indisputable that there had been lack of any action in HCCT 85 since the trial dates were vacated, it is also indisputable that on 11 November 2022, the Court granted leave to the Plaintiffs to proceed with the said action.

18.  Counsel for King has not pursued the initial claim that HCCT 85 had been abandoned, or was no longer a live or pending action for the purposes of consolidation.

19.  The Plaintiffs’ inactivity can be understood in view of the fact that YC was wound up in December 2004. There was no point for the Plaintiffs to pursue a judgment for damages against a company which has been wound up, nor any real necessity to seek the declaration and injunction initially sought against the wound-up company.

20.  HCA 240 was commenced by the Plaintiffs to protect their rights in the Plaintiffs’ Land as against King, which was by then the registered owner of Section W of the Lot.

21.  I therefore cannot agree that the Plaintiffs had abused the court’s process by reason of their failure to continue HCCT 85, and/or to commence and pursue HCA 240 against King instead.

22.  It is clear beyond peradventure that there are common issues of fact and law between the claims made in HCCT 85 and those made in HCA 240, as they relate to YC/Ho’s acts of the erection of the fence, which was later relocated to widen Section W, and whether there was the alleged 1992 Agreement when the boundary of Section X and Section W was allegedly agreed between the Plaintiffs and YC (the predecessor in title of King).

23.  Since the Plaintiffs have obtained leave to continue HCCT 85, and it is their intention now to proceed to trial of the claims made in HCCT 85, in which YC is represented by its liquidators, it will be consistent with the Objectives of procedural economy and costs effectiveness to have the common questions of fact and law decided at the same trial, by the same judge, on the evidence to be considered at the same time. Even if the liquidators of YC do not resist the claims made, it is obvious that the Plaintiffs will still have to prove their case at trial. It will not be sensible to have the same issues tried in HCCT 85 separately to HCA 240.

24.  For these reasons, I accede to the application for consolidation, in terms of the Plaintiffs’ summons.

25.  In view of the delay which has already occurred, the parties should diligently agree on further directions for the trial, with the aim of a speedy and effective trial. It is noted with some dismay by the Court that leave has been granted for separate expert evidence to be adduced on many issues. Time has since evolved, and the current practice of the Court is to have single joint experts rather than to permit the parties to call their individual experts. I see no reason why the experts cannot agree on simple and basic questions such as valuation of the properties, and on quantum.  The parties are directed to confer and to agree sensibly on issues, including expert evidence, and the experts will have to give very good reasons to the trial judge as to why they cannot agree on any matter, whether on liability or quantum. Parties and the experts are reminded that costs and time unreasonably wasted will not be recoverable and may have to be paid for on indemnity basis.

	(Mimmie Chan)
	Judge of the Court of First Instance High Court

Mr Vincent Lam and Mr Kurt Ng, instructed by Tsang, Chan & Woo Solicitors and Notaries, for the 1^st to 5^th plaintiffs (in HCA 240/2016)  & for the 1^st to 3^rd plaintiffs (in HCCT 85/2004)

Ms Sezen Chong, instructed by Jackson Ho & Co, for the 1^st & 2^nd defendants (in HCA 240/2016)

The defendant in HCCT 85/2004 (represented by the Joint and Several Liquidators)  did not appear

  

HCA 240/2016

[2018] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 240 OF 2016

_________

BETWEEN
	IP WAN FAT	1st Plaintiff
	IP WAI HONG	2nd Plaintiff
	SUNG HAU TAK	3rd Plaintiff
	IP MIU HA	4th Plaintiff
	IP WAI MAN RAYMOND	5th Plaintiff
and
	KING UNION INTERNATIONAL	1st Defendant
	INVESTMENTS LIMITED
	HO KWOK WA	2nd Defendant

_________

Before:

Deputy High Court Judge Dawes SC in Chambers

Date of Hearing:	3 October 2018
Date of Decision:	19 October 2018

_______________

DECISION

_______________

Introduction

1.  This is the hearing of a summons under Order 14A of the Rules of High Court taken out by the defendants on 19 September 2017 (“Summons”).  The background of this matter is set out in the Reasons for Decision of Recorder Yvonne Cheng SC dated 27 April 2018 (“April Decision”). I shall adopt the abbreviations contained therein.

2.  Leave to amend the Summons was given at the April hearing and the parties agreed on that occasion that instead of the issues set out in the Summons, the real question that requires determination is as follows:“whether, on the true construction of the assignment of 10 March 1992 to Sum Yuk Ming, the boundary of the land in section X at the location where section X was adjacent to section W, was that as marked ‘J-A’ in the plan attached to the sale and purchase Agreement dated 14 March 1992 to Yuen Chak Construction Company Limited, the predecessors in title of the defendants” (“Question”).   

Relevant background

3.  Briefly stated, the following matters are relevant by way of background:

(1)   The parties to this boundary dispute are the registered owners of subsections within Lot No 3335 in DD 91, New Territories, Hong Kong (“Lot”).

(2)   It is common ground that in early 1992, the then owners of the relevant sections in the Lot (Messrs Leung, Chan and Tang) retained a chartered land surveyor (Mr Sam Mak) to prepare a setting-out plan to define the perimeters of, inter alia, sections W and V.  The plan produced by him was dated 28 February 1992 (“1992 Plan”). 

(3)   However, the 1992 Plan was not registered against the relevant sections of the Lot immediately by deed poll.  What happened was that the whole of section X was sold to a Sum Yuk Ming bya sale and purchase agreement dated 4 March 1992 and assigned by an assignment dated 10 March 1992 (“Assignment”).  No plan was attached to the sale and purchase agreement or the Assignment.  Section X was subsequently sold to a Lai Ying Tat on 28 March 1992.  On 27 January 1998, it was sold to the 1^st and 2^nd plaintiffs.

(4)   Section W was sold to the defendants’ predecessor in title (ie Yuen Chak Construction Company Ltd) by a sale and purchaseagreement dated 14 March 1992.  The 1992 Plan was annexed to the sale and purchase agreement which was registered by memorial number 268844 on 27March 1992.

(5)   In early 1999, section X was divided into subsections 1 and 2 and the Remaining Portion (“RP”) by a deed poll which was registered in the Land Registryby memorial no N431893 on 2 February 1999.  A plan prepared by Leung Shou Chun Land Surveying Consultants Limited dated 16 January 1999 was annexed to the memorial (the “1999Plan”).  The 1999 Plan was signed off by Mr Leung Shou Chun (“MrLeung”), an authorised land surveyor.

(6)   The 1^st and 2^nd plaintiffs are currently the registered owners of the RP of section X of the Lot.  The 1^st plaintiff has since 23 July 2010 also been the registered owner of ⅓ part or share of subsection 2 of section X.  The 4^th and 5^th plaintiffs have since 26 August and 23 August 2010 been the respective registered owners of ⅓ part or share of subsection 2 of section X.

(7)   RP and subsection 2 of section X are adjacent to section W. This is how the precise boundary between these subsections became the subject matter of this dispute.  The plaintiffs are obviously relying on the 1999 Plan and the defendants on the 1992 Plan.  The two sides contend that the other side was committing trespass by reason of their respective contentions ofwhere the boundary should be.  The details of the acts committed are not relevant for the present purpose.  The disagreement has obviously arisen by reason of the discrepancies between the two plans.

The defendants’ case

4.  Mr Lai for the defendants invited me to answer the Question in the affirmative.  In his submissions, heavy reliance was placed on the correctness of the 1992 Plan and I was asked to find that it was accurate.

5.  He argued that the 1992 Plan was properly done by a chartered land surveyor and duly registered.  This plan was therefore incapable of mistake as it was a new demarcation by the then owners of the relevant sections of the Lot and it was up to them to decide how they wished to divide the section up for sale to different purchasers.

6.  He also contended that the 1992 Plan was a setting-out plan and the 1999 Plan was not.  Setting-out plans have well-established scientific and legal status by reference to government land survey records.  It was also a macro setting-out survey creating and defining the boundaries of various sub-lots including section W.  In contrast, the 1999 Plan was a micro subdivision of section X only and he attacked the accuracy of the same and criticised it for failing to consult the 1992 Plan which was already in public domain.  He also criticised the calculations contained in the 1999 Plan saying, for example, that the total length of the lot boundary was longer than the 1992 Plan by about 1.2 metres.

The plaintiffs’ case

7.  The plaintiffs’ case is that when section X was sold to Sum Yuk Ming, the property that was described in the Second Schedule to the sale and purchase agreement was simply the entirety of section X as registered in “the District Land Office, North” and no reference was made to any plan.  The 1992 Plan was at all material times never registered in the District Lands Office under section X.  The wordings in the Assignment are therefore incompatible with the 1992 Plan.

8.  Mr Lam for the plaintiffs also submitted that Order the 14A procedure is inappropriate as there is disputed expert evidence by the land surveyors and he pointed to various points made in the expert reports to make good his submissions.

Discussion

9.  As explained by Chan CJHC (as he then was) in Secretary for Justice v Wing Lung Wai Community & Ors [1999] 3 HKC 580 at 588A–G:

“ In my view, different conveyances use different descriptions of the parcel of land to be granted and adopt different formulae with regard to the use to be made of the plan annexed to the conveyance. If there is a dispute with regard to what is actuallyconveyed, that is a matter of construction of the whole conveyance,including the parcel clause and the plan, in the light of other relevant surrounding circumstances. The object is to ascertain what the parties intended to be passed under the document and what is passed.”

10.  Despite suggestions to the contrary in the skeleton arguments, the parties agreed that I should focus on the Question and the exercise in question is one of construction of the Assignment dated 10 March 1992 (“Assignment”).

11.  It is trite that the Order 14A procedure is inappropriate if the issues of facts in the matter are interwoven with the legal issues to be determined. For obvious reasons, the question of law or construction of document cannot be dealt with on assumed or hypothetical facts.  And if it is necessary for the court to hear evidence to resolve a factual dispute in order to come to a determination on the question of law or construction of document, it would not normally be suitable to invoke Order 14A. See Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222 at §24 per Chan PJ.

12.  In my view, my ability to determine this Order 14A application depends on whether I can resolve the Question without hearing expert evidence from the land surveyors.

13.  Mr Lai said the matter does not turn on expert evidence because the plaintiffs have failed to adduce evidence to show how 1992 Plan was wrong.  He said it had been 18 years since the dispute had arisen and the plaintiffs have still failed to do so.  He also relied on the long ownership ofsection W by the defendants and the fact that there was peace for many years between the parties.

14.  In contrast, Mr Lam submitted the expert evidence before the Court is of vital importance.  He referred me to the expert evidence of the land surveyor retained by the plaintiffs (Mr Leung) who prepared the 1999 Plan.  My attention was drawn to the following matters:

(1)   Mr Leung pointed to the existence of a memorial registered against the Lot in 1973 when the Lot was divided into, inter alia, sections X and W.  A plan dated 3 January 1973 was registered against the Lot (“1973 Plan”) setting out the relative positions of and boundary between sections X and W.  As against section X, it is said that the area was approximately 10,000 square feet. 

(2)   The 1973 Plan was attached to a conveyance dated 11 January 1973 for the sale and purchase of a number of sections within the Lot (including sections W and X) and was registered by memorial number 173529.

(3)   The 1973 Plan was taken into account when Mr Leung preparedthe 1999 Plan but it was ignored when the 1992 Plan was prepared.

(4)   Mr Leung criticised the 1992 Plan suggesting that it was prepared in a piecemeal manner.  Significantly, it was said that the total area of section X in the 1992 Plan was more than 10% smaller as compared to the 1973 Plan (ie 10,000 square feet).

(5)   In contrast, in the expert evidence adduced by the defendants, the expert simply “preferred to adopt Mr. Sam Mak’s survey because his survey was first registered”.  The expert said he had “no comment on Mr. Leung’s choice”.

15.  In light of the aforesaid, Mr Lai’s submissions that the plaintiffs adduced no evidence to challenge the 1992 Plan must be incorrect.

16.  In response, Mr Lai contended that the 1973 Plan was basic.  Itwas for identification purpose only and was not a setting out plan.  However, he accepted that in construing the Assignment, the 1973 Plan ought to be taken into account but sought to rely on the nemo dat rule in answer, the relevance of which I do not understand.  He also asked me not to overlook the fact that the 10,000 square feet referred to in the 1973 Plan was an approximate area only and suggested that in the context of litigation in respect of lands in the New Territories, an approximate area could mean more than a 10% discrepancy.  

17.  In construing the Assignment, the accuracy of the plans in question (ie the 1973 Plan, the 1992 Plan and the 1999 Plan) are obviously relevant.  This explains why Mr Lai spent considerable time attacking the accuracy of the 1973 Plan and the 1999 Plan.  Expert evidence prepared by land surveyors have been placed before me to demonstrate the point.  This also explains why Mr Lai invited me to conclude that there is no mistake in the 1992 Plan and that there are prima facie mistakes in the 1999 Plan. 

18.  Recognising the difficulty in reaching any conclusion on the relevant plans, Mr Lai argued that the matter can be decided by “the time-honoured certainty of registration and priority”.  He suggested that it was up to the common owners (ie Leung, Chan and Tang) to divide up the land as they wish.  However, this is of little assistance as the 1992 Plan was not registered against any of the subsections of the Lot when the Assignment was entered into.  There is no evidence to suggest that the 1992 Plan was even brought to the attention of Sum Yuk Ming when he entered into the Assignment on 10 March 1992.  In fact, the 1992 Plan first appeared in the sale and purchase agreement dated 14 March 1992 and was not registered until 27 March 1992 against section W.

19.  Given how the matter was presented and the fact that I am askedto reach definitive conclusions on the accuracy of plans in light of conflictingexpert evidence, I am of the view that the use of the Order 14A procedure is inappropriate and the Question should only be determined after a full trial.

20.  In light of the aforesaid, I dismiss the Summons.

21.  The parties agreed that costs should follow the event. Costs of the Summons (including costs of the hearing on 19 April 2018) are to be paid by the defendants to the plaintiffs, to be taxed if not agreed.

 

	(Victor Dawes SC)
	Deputy High Court Judge

Mr Vincent Lam, instructed by Tsang, Chan & Woo, for the 1^st to 5^th plaintiffs

Mr Thomas Lai, instructed by Raymond Cheung & Chan, for the 1^st and 2^nd defendants

  

HCA 240/2016

[2018] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 240 OF 2016

_________

BETWEEN
	IP WAN FAT	1st Plaintiff
	IP WAI HONG	2nd Plaintiff
	SUNG HAU TAK	3rd Plaintiff
	IP MIU HA	4th Plaintiff
	IP WAI MAN RAYMOND	5th Plaintiff
	and
	KING UNION INTERNATIONAL INVESTMENTS LIMITED	1st Defendant
	HO KWOK WA	2nd Defendant

_________

Before: Madam Recorder Yvonne Cheng SC in Chambers

Date of Hearing: 19 April 2018

Date of Decision: 19 April 2018

Date of Reasons for Decision: 27 April 2018

__________________________

REASONS FOR DECISION

__________________________

Introduction

1.  The defendants took out a summons dated 19 September 2018 pursuant to Order 14A of the Rules of the High Court (“the Summons”).

2.  At the hearing of the Summons on 19 April 2018, I acceded to an application for amendment of the Summons, and gave directions for further conduct of the matter.  I now set out my reasons for doing so.

The background

3.  The plaintiffs’ claim is for trespass.  The defendants have counterclaimed for trespass, nuisance and negligence.  The plaintiffs and defendants own neighbouring plots of land and the parties’ claims arise out of a dispute as to the location of the boundary between the two plots.  The plaintiffs’ plot has been described in shorthand as “section X” and the defendants’ plot as “section W”.

4.  The defendants took out the Summons seeking a summary determination of (inter alia) the correctness of the boundary location they contend for.

The hearing

5.  At the hearing on 19 April 2018, counsel for the defendants, Mr Raymond Lau, indicated that he was not pursuing paragraphs 3 to 6 of the Summons.

6.  In relation to paragraph 1 of the Summons, Mr Lau accepted that the part of the assignment quoted in paragraph 1 was not, in fact, a “covenant” as contended for in paragraph 1 of the Summons.

7.  In relation to paragraph 2 of the Summons, Mr Lau accepted that even if the plan prepared in 1992 had “priority” as contended for, this was not relevant to the question of what parcel of land was conveyed to Sum Yuk Ming, the defendants’ predecessors in title.

8.  In fact, the skeleton argument for the defendants filed in advance of the hearing had largely focussed on the issue of what parcel of land had been conveyed to Sum Yuk Ming, and the proper construction of the assignment to Sum Yuk Ming of 10 March 1992 (see paragraphs 47 – 49).   

9.  At the hearing, I asked Mr Lau whether the question which arose for determination, and which paragraph 1 of the Summons seemed to be suggesting, was in effect whether, on the true construction of the assignment of 10 March 1992 to Sum Yuk Ming, the boundary of the land in section X, at the location where section X was adjacent to section W, was that as marked boundary “J-A” in the plan attached to the sale and purchase agreement dated 14 March 1992 to Yuen Chak Construction Company Limited, the predecessors in title of the defendants (“the Question”).  Mr Lau accepted that this was the case and made submissions in relation to the Question.

10.  Mr Vincent Lam, counsel for the plaintiffs, also initially agreedthat the Question arose for determination and made a number of submissions in relation thereto.  However, in the course of those submissions he raised the point that the Question had not been so framed in the Summons and that had this been done earlier, the plaintiffs would have filed evidence to address the circumstances in which section X was conveyed to Sum Yuk Ming in 1992.

11.  In the light of that submission I was concerned that the plaintiffs might not have had sufficient opportunity to file evidence which might be relevant to the proper construction of the 1992 assignment to Sum Yuk Ming.

12.  Mr Lau formally applied to amend paragraph 1 of the Summons in terms of the Question, noting the terms of Order 14A, rule 1(1) and Order 14A, rule 2, and Mr Lam opposed the application on the grounds that the plaintiffs had not had the opportunity to file evidence in relation to the Question.

13.  I allowed the application to amend paragraph 1 and further directed as follows:

(1)  within 28 days, the defendants are to file any further affidavit evidence in relation to the Question;

(2)  within 28 days thereafter, the plaintiffs are to file any further affidavit evidence in relation to the Question;

(3)  within 28 days thereafter, the defendants are to file their affidavit evidence in reply, if any;

(4)  no further evidence is to be filed without leave of the Court;

(5)  the matter is to be refixed for half a day, in consultation with counsel’s diary; and

(6)  the costs of today be reserved.

  

  

	(Yvonne Cheng SC)
	Recorder of the High Court

  

Mr Vincent Lam, instructed by Tsang, Chan & Woo, for the 1^st to 5^th plaintiffs

Mr Raymond Lau, instructed by Raymond Cheung & Chan, for the 1^st and 2^nd defendants