(A) Introduction
Yan Mei and Yan Dong the Joint and Several Administrators of the Estate of Fong Lap Chung George Deceased and another v. Fong Lap Shan, HCA 104/2023 and HCA 1562/2022, date of judgment: 31 October 2025 [1] concerns an unusual application to enforce an Interim Payment Order (the “IPO”) through a draconian “unless” order. The Defendant sought an order that unless the Plaintiffs complied with the IPO by paying the outstanding payments with interest in full by a specified deadline, their claim would be dismissed and judgment would be entered on the Defendant’s counterclaim. [2]
The Court refused to grant such relief as it found that the Defendant’s application was premature. [3] It affirmed that an unless order is a remedy of last resort and should not be used before first attempting less draconian enforcement methods available under the civil procedures. Meanwhile, the Court also highlighted that the 1st Plaintiff’s repeated breaches of the IPO were unacceptable and must not be condoned. [4]
This case sheds light on the Court’s approach to enforcing interim payment orders. It establishes that an “unless order” with a strike-out sanction is an inappropriate and premature tool where other less draconian enforcement methods are available. It also underscores the Court’s balancing act: it is reluctance to allow such a drastic procedural remedy to be used in lieu of other enforcements, while still demanding strict compliance with court orders.
(B) Facts
On 29 November 2024, Master Teresa Wu made an IPO against the 1st Plaintiff. [5] The 1st Plaintiff should reimburse the Defendant for past mortgage, repayments, rates and government rent for a property defined in the pleadings as “House 10”. [6]
The 1st Plaintiff initially complied but subsequently defaulted. After that, the Defendant applied to the Court for an “unless order” (the “Unless Order Summons”), which sought an order that unless the Plaintiffs paid the outstanding payments with interest in full by a specified deadline, their claim would be dismissed and judgment would be entered on the Defendant's counterclaim. [7]
The 1st Plaintiff opposed the Defendant’s Unless Order Summons on two grounds: (1) the Defendant cited the wrong procedural rules in the margin note of the Unless Order Summons; and (2) it would be unjust and disproportionate to dismiss the claim for failure to pay the outstanding sum. [8]
(C) Decision
The Court dismissed the Unless Order Summons on the following grounds:
(1) Defective margin note argument rejected: The Court reaffirmed that citing the wrong order or rule in the margin note of a summons is not fatal as a party is not bound to state under which order or rule he proposes to move. [9] Parties may move under a particular rule and then, when they find it is a wrong one, turn to another and an order is made thereafter.
(2) Refusal to grant the unless order as unjust and disproportionate: The Court explained that the purpose of an unless order is to secure a fair trial pursuant to the due process of law, not to punish a party. [10] The draconian sanction of striking out a litigant’s claim or defence in its entirety should not be the default consequence of an unless order as it would effectively deprive the litigant of its substantive rights on account of a procedural fault. [11] The Court endorsed a “more calibrated use” of such orders through the following guidelines: [12]
(a) Unless orders are a last resort when the defaulter’s conduct is inexcusable.
(b) The conditions should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance.
(c) Other means of penalizing contumelious or persistent breaches are available, for example, (a) awarding costs on an indemnity basis (b) order the payment of the plaintiff’s claim or part thereof into court where the defaulting party is a defendant (c) striking out the relevant portions of the defaulting party’s statement of claim or defence rather than the whole (d) barring the defaulting party from adducing certain classes of evidence or calling related witnesses and (e) raising adverse inferences against the defaulting party at trial.
(3) Availability of other enforcement mechanisms: The Court held that it is inappropriate to enforce an IPO via an unless order with a strike-out sanction as a first step. [13] The civil procedures provide other enforcement mechanism for monetary orders, such as a writ of fieri facias or an order of committal under Rules of the High Court, Order 45 rule 1(1)(a) & (e), Order 45 rule 5. [14] Where no time for payment is specified, the Court is empowered under Order 45 rule 6(2) to set a deadline. [15] Any breach of that subsequent order may be enforced by an order of committal. [16]
In light of the above, the Court found that the Unless Order Summons was premature as the Defendant had not first exhausted all the other enforcement mechanisms designed for monetary orders. [17]
Costs
The Court made no order as to the costs for the Unless Order Summons on the ground that while the Defendant’s Unless Order Summons was premature, the 1st Plaintiff's conduct in repeatedly breaching the IPO should not be condoned. [18] In particular, the Court rejected the 1st Plaintiff’s argument of financial difficulties as an excuse for non-compliance with the IPO. [19]
(D) Key Takeaways
This case provides the following significant guidelines on the enforcement of court orders:
(1) Unless Orders as a Last Resort: The Court affirmed that “unless orders” with strike-out sanctions are a remedy of last resort. It is reluctant to grant them where less draconian enforcement mechanisms, for example, a writ of fieri facias or an order of committal, are available and have not been attempted.
(2) A Calibrated Judicial Approach: The Court demonstrated a calibrated approach in its use of an unless order. It refused to impose the ultimate sanction, namely, striking out the claim, which would deprive a litigant of its substantive rights. In the meantime, it demanded compliance by ordering payment within 21 days after service of the order.
(3) Financial Difficulty is Not an Excuse: The Court explicitly rejected financial hardship as a valid excuse for breaching a court order.
In light of the above, parties must first exhaust all less severe enforcement methods before seeking the draconian sanction of striking out a claim or defence in its entirety.
[1] https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2022/HCA001562A_2022.docx
[2] Yan Mei and Yan Dong the Joint and Several Administrators of the Estate of Fong Lap Chung George Deceased and another v. Fong Lap Shan, HCA 104/2023 and HCA 1562/2022, date of judgment: 31 October 2025 , §3
[3] Ibid, §21
[4] Ibid, §26
[5] Ibid, §1
[6] Ibid, §2
[7] Ibid, §3
[8] Ibid, §12
[9] Ibid, §13
[10] Ibid, §15
[11] Ibid
[12] Ibid
[13] Ibid, §16
[14] Ibid, §17
[15] Ibid, §18
[16] Ibid
[17] Ibid, §21
[18] Ibid, §26
[19] Ibid, §22
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