LAM LEE CHU v. JIM KIU t/a SANDWIN INTERIOR CONTRACTOR

LAM LEE CHU v. JIM KIU t/a SANDWIN INTERIOR CONTRACTOR

The court held there was insufficient proof that the indebtedness in 17890/92 had been satisfied in 1992 and that retention of the 26/10/06 affirmation in Deeds Pending Registration was unjustified given the unexplained and inordinate delay and surrounding circumstances; accordingly the affirmation was ordered withdrawn and costs awarded to the applicant in part (60%), while no order as to costs was made in respect of the discharge of the charging order in 8133/92.

Citation
LAM LEE CHU v. JIM KIU t/a SANDWIN INTERIOR CONTRACTOR
Parties
Applicant (judgment Debtor): Lam Lee Chu; Respondent (judgment Creditor): Jim Kiu trading as Sandwin Interior Contractor
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 January 2010
Case Number
DCMP2091/2009
Procedural Posture
Miscellaneous Proceedings Concerning Charging Order and Lis Pendens / Decision
Outcome
Application to discharge charging order in 8133/92: no order as to costs. Application in DCMP 2091/09 to withdraw 26/10/06 affirmation: allowed; affirmation withdrawn; costs awarded partially to applicant.
Legal Topics
Charging Order, Lis Pendens, Vacation of Registration, Indemnity Costs, Delay/laches, Accord and Satisfaction
Source Language
EN
Civil Procedure Land Registration Enforcement of Judgment Bankruptcy Costs Charging Order Lis Pendens Vacation of Registration +3 more

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Parties

Lam Lee Chu

Applicant (judgment Debtor)

Jim Kiu trading as Sandwin Interior Contractor

Respondent (judgment Creditor)

Procedural Posture

Miscellaneous Proceedings Concerning Charging Order and Lis Pendens / Decision

Legal Issues

  1. 1 Whether the charging order in DCCJ 8133/92 should be discharged and who should bear the costs
  2. 2 Whether the indebtedness under DCCJ 17890/92 was discharged in 1992
  3. 3 Whether the 26/10/06 affirmation (lis pendens) should be withdrawn/vacated under section 19 Cap.128 because the litigation was not prosecuted bona fide or for other good cause

Ratio Decidendi

The court held there was insufficient proof that the indebtedness in 17890/92 had been satisfied in 1992 and that retention of the 26/10/06 affirmation in Deeds Pending Registration was unjustified given the unexplained and inordinate delay and surrounding circumstances; accordingly the affirmation was ordered withdrawn and costs awarded to the applicant in part (60%), while no order as to costs was made in respect of the discharge of the charging order in 8133/92.

Court Disposition

Application to discharge charging order in 8133/92: no order as to costs. Application in DCMP 2091/09 to withdraw 26/10/06 affirmation: allowed; affirmation withdrawn; costs awarded partially to applicant.

Orders

  • No order as to costs of and incidental to Lam Lee Chu's summons to discharge and to vacate the registration of the charging order in DCCJ 8133/92
  • The 26/10/06 affirmation delivered for registration as a lis pendens in DCCJ 17890/92 is to be withdrawn from Deeds Pending Registration in the Land Registry