LAM WING MAN v. CHEUNG MUI HEUNG

HCA 2807/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2807 OF 2000

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BETWEEN

LAM WING MAN Plaintiff
and
CHEUNG MUI HEUNG
THE PERSONAL REPRESENTATIVE OF
LAM CHI YUEN, DECEASED
Defendant

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HCA 4939/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4939 OF 2001

____________________

BETWEEN

LAM TIM FOOK Plaintiff
and
CHEUNG MUI HEUNG Defendant
  THE PERSONAL REPRESENTATIVE OF
LAM CHI YUEN, DECEASED
 

____________________

Before: Hon Reyes J in Chambers

Date of Hearing: 5 November 2004

Date of Judgment: 5 November 2004

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J U D G M E N T

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1. We will deal with the interest point first and then we will take it from there.

2. I am afraid on the interest point I am against Mr Ng (appearing for the defendant). I am not persuaded by his arguments. Whenthe agreement scheduled to the consent order of Waung J dated 9 April 2003, says in paragraph 2 that the plaintiffs shall receivethe resumption compensation in the sum of $6,492,306.60 or any appropriate sum as determined by the District Lands Officer, thatclearly means that interest is included. The resumption principal plus the interest constitute the resumption compensation. Thatis, the appropriate sum from which the parties are to receive their respective shares.

3. If I am wrong on that, the entitlement of the plaintiffs to a share of the interest is a matter of implication into paragraph 2of the agreement. The officious bystander looking over the parties’ shoulders and suggesting that interest should be included,would be met by the cold stares of the parties who would say, “Go away! Of course, that goes without saying!”

(Submissions by counsel)

4. There is no express or implied term within the agreement scheduled to the consent order of Waung J, requiring the defendant to sueMr Tai in respect of Lot No. 2517. The agreement was that the defendant would apply to the District Lands Officer for the resumptioncompensation in relation to “the Land”. The expression is defined in the agreement as including Lot Nos. 2517, 2518, 2539, 2540and 2541. The defendant would accept whatever sum the District Lands Officer shall decide he is entitled to for the Land. The DistrictLands Officer’s decision on the matter would be final.

5. Having looked at the matter, the District Lands Officer said that the defendant was not entitled to compensation in respect of LotNo. 2517 because (as far as the District Lands Officer was concerned) the defendant had not got a possessory title to Lot No. 2517. Therefore, compensation was only payable on the basis of the defendant’s possessory title to the other lots.

6. In those premises, the defendant did precisely what he was supposed to do in respect of the Land in applying for compensation. He did not receive any compensation from the District Lands Officer for Lot No. 2517 due to a defective title. There is no furtherobligation on him to sue Mr Tai to perfect his possessory title.

7. I note Mr Ng’s concession to the following effect: If the plaintiffs’ actions are discontinued, and if the defendant shouldlater sue Mr Tai successfully for a possessory title on Lot No. 2517, and if the defendant obtains any resumption compensation inrelation to Lot No. 2517, but fails to share that compensation with the plaintiffs in their due proportion, then any discontinuanceof these actions will be without prejudice to the plaintiffs’ rights to mount actions against the defendant for a share of thecompensation.

8. To conclude on Lot No. 2517, for the reasons I have mentioned, I am against the plaintiffs.

(Submissions by counsel)

9. I deal with the question of my jurisdiction to order discontinuance of the actions. I think that Mr Ng is correct. The sourceof my jurisdiction is an implied term to the agreement appended to the consent order. Implicit in the agreement must be the understandingthat, if all the parties fulfill their respective obligations under the agreement, one or other party can apply to this court forthe action to be discontinued. It is not right for an action to be left hanging in suspense for a long time, where nothing moreneeds to be done by any party in relation to the action. So, on the assumption that all obligations of the parties have been fulfilledunder the agreement scheduled to Waung J’s order, the parties have impliedly given the Court jurisdiction to discontinue the actionupon application.

(Submissions by counsel)

10. There shall be no order as to costs.

  (A. T. Reyes)
  Judge of the Court of First Instance
  High Court

Ms May Wu of Messrs Liau, Ho & Chan, for the Plaintiff (in HCA2807/2000)

Mr Thomas Au, instructed by Messrs Terry Yeung & Lai, for the Plaintiff (in HCA4939/2001)

Mr Ken Ng Chi Man, instructed by Messrs Choi & Liu, for the Defendant (in both actions)