HUEN WAI KEI AND ANOTHER v. CHOY KWONG WA CHRISTOPHER AND ANOTHER

HUEN WAI KEI AND ANOTHER v. CHOY KWONG WA CHRISTOPHER AND ANOTHER

The court refused the plaintiffs' supplemental relief because the orders sought went beyond permissible supplemental orders and effectively amounted to an assessment of damages without inquiry; specific performance was an alternative remedy ordered only against Raking and not against Choy, so no supplemental order for the plaintiffs' proposed payments could be made against Choy; plaintiffs retain other remedies (interpleader proceedings, discharge of specific performance and inquiry for damages); the defendants' summons to amend the sealed judgment wording was dismissed because the wording reflected contractual terms and the relief sought could not be achieved by re-writing the contract...

Citation
HUEN WAI KEI AND ANOTHER v. CHOY KWONG WA CHRISTOPHER AND ANOTHER
Parties
1st Plaintiff: Huen Wai Kei; 2nd Plaintiff: China Gain Corporation Limited; 1st Defendant: Choy Kwong Wa Christopher; 2nd Defendant: Raking Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 July 2014
Case Number
HCA1242/2006
Procedural Posture
Civil Contractual Dispute (specific Performance and Debt) / Post Judgment Applications (supplemental Orders and Summons)
Outcome
Plaintiffs' Notice of Motion dismissed; defendants' summons dismissed
Legal Topics
Specific Performance, Supplemental Orders, Set Off, Mortgage Enforcement, Interpleader, Amendment of Judgment, Assessment of Damages
Source Language
EN
Contract Equity Civil Procedure Property Enforcement Specific Performance Supplemental Orders Set Off +4 more

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Parties

Huen Wai Kei

1st Plaintiff

China Gain Corporation Limited

2nd Plaintiff

Choy Kwong Wa Christopher

1st Defendant

Raking Limited

2nd Defendant

Procedural Posture

Civil Contractual Dispute (specific Performance and Debt) / Post Judgment Applications (supplemental Orders and Summons)

Legal Issues

  1. 1 Whether the court should exercise inherent jurisdiction to make supplemental orders directing distribution of sale proceeds and making defendants make good any shortfall caused by mortgage discharge
  2. 2 Whether supplemental orders can be made against Choy where specific performance was ordered only against Raking
  3. 3 Whether paragraph 2 of the sealed judgment could be amended to remove the phrase "free from encumbrance" or to alter wording concerning the judgment sum

Ratio Decidendi

The court refused the plaintiffs' supplemental relief because the orders sought went beyond permissible supplemental orders and effectively amounted to an assessment of damages without inquiry; specific performance was an alternative remedy ordered only against Raking and not against Choy, so no supplemental order for the plaintiffs' proposed payments could be made against Choy; plaintiffs retain other remedies (interpleader proceedings, discharge of specific performance and inquiry for damages); the defendants' summons to amend the sealed judgment wording was dismissed because the wording reflected contractual terms and the relief sought could not be achieved by re-writing the contract...

Court Disposition

Plaintiffs' Notice of Motion dismissed; defendants' summons dismissed

Orders

  • Notice of Motion by Huen Wai Kei and China Gain Corporation Ltd dismissed
  • Defendants' summons (Raking Ltd) seeking amendment of paragraph 2 of the Judgment dismissed