DEXTRA CHINA LTD AND ANOTHER v. LAM WING KIT

DEXTRA CHINA LTD AND ANOTHER v. LAM WING KIT

The Siblings failed to demonstrate an arguable bona fide claim to a beneficial interest because their case before the master consisted of unsupported assertions and they had access to contemporaneous documents which they did not produce; the fresh documents tendered on appeal could and should have been produced below and thus fail Ladd v Marshall's first condition; accordingly joinder and stay were properly refused and the Tomlin Order's registration, which was used to obstruct enforcement by non-parties, was an abuse of process and must be vacated.

Citation
DEXTRA CHINA LTD AND ANOTHER v. LAM WING KIT
Parties
1st Plaintiff / 1st Judgment Creditor: DEXTRA CHINA LIMITED; 2nd Plaintiff / 2nd Judgment Creditor: DEXTRA BUILDING PRODUCTS (GUANGDONG) CO. LIMITED; Defendant / Judgment Debtor: LAM WING KIT; Appellant / Sister: LAM CHUI HA; Appellant / Brother: LAM WING KWAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 November 2017
Case Number
HCMP1852/2015
Procedural Posture
High Court (court of First Instance) Miscellaneous Proceedings HCMP 1852/2015 / Appeal From Master's Dismissal of Joinder and Stay Applications; Registration Application to Vacate Tomlin Order From Land Register
Outcome
Appeal dismissed; Registration of the Tomlin Order vacated from the Land Register; costs awarded to plaintiffs.
Legal Topics
Joinder of Parties, Constructive and Resulting Trusts, Charging Order and Order for Sale, Tomlin Orders and Registration, Abuse of Process, Admissibility of Fresh Evidence on Appeal (ladd V Marshall Test)
Source Language
EN
Civil Procedure Trusts Land Law Enforcement of Judgment Property Law Joinder of Parties Constructive and Resulting Trusts Charging Order and Order for Sale +3 more

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Parties

DEXTRA CHINA LIMITED

1st Plaintiff / 1st Judgment Creditor

DEXTRA BUILDING PRODUCTS (GUANGDONG) CO. LIMITED

2nd Plaintiff / 2nd Judgment Creditor

LAM WING KIT

Defendant / Judgment Debtor

LAM CHUI HA

Appellant / Sister

LAM WING KWAN

Appellant / Brother

Procedural Posture

High Court (court of First Instance) Miscellaneous Proceedings HCMP 1852/2015 / Appeal From Master's Dismissal of Joinder and Stay Applications; Registration Application to Vacate Tomlin Order From Land Register

Legal Issues

  1. 1 Whether the Siblings demonstrated an arguable bona fide claim to a partial beneficial interest in the Property to justify joinder
  2. 2 Whether fresh documents handed up on appeal should be admitted (application of Ladd v Marshall and Langdale v Danby principles)
  3. 3 Whether the Tomlin Order registered against the Property should be vacated from the Land Register

Ratio Decidendi

The Siblings failed to demonstrate an arguable bona fide claim to a beneficial interest because their case before the master consisted of unsupported assertions and they had access to contemporaneous documents which they did not produce; the fresh documents tendered on appeal could and should have been produced below and thus fail Ladd v Marshall's first condition; accordingly joinder and stay were properly refused and the Tomlin Order's registration, which was used to obstruct enforcement by non-parties, was an abuse of process and must be vacated.

Court Disposition

Appeal dismissed; Registration of the Tomlin Order vacated from the Land Register; costs awarded to plaintiffs.

Orders

  • Appeal dismissed
  • Siblings to pay plaintiffs' costs of the Appeal, to be taxed if not agreed on a party and party basis with certificate for counsel for the hearing on 5 May 2017