The Incorporated Owners of Kingland Apartments v. Eltron Development Ltd

DCCJ4545/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4545 OF 2015

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JUDGMENT

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Summonses

1.The plaintiff has issued a summons under Order 19 rule 7 dated 24 March 2016 against the 2^nd defendant, for default judgment, asking for an Order that the 2^nd defendant do forthwith remove all illegal structures and make good all damages at their own costs and expense within 21 days of the Order (the “Summons”).  There is also a cross-summons for the filing of a defence out of time by the 2^nd defendant.  The two are heard together.

2.A similar summons for default judgment dated 11 November 2015 (the “November Summons”) was issued by the plaintiff which was subsequently adjourned to 24 March 2016.  The November Summons was then withdrawn on 24 March 2016 because it was based on Order 13 rule 6, which deals with the default of filing of Acknowledgment of Service.  The 2^nd defendant had filed its Acknowledgment of Service on 17 December 2015 indicating its intention to defend.  On 24 March 2016, the plaintiff issued the present Summons.

3.Although the 2^nd defendant had previously filed an Acknowledgment of Service on 17 December 2015, up to the date of the hearing, there was no defence nor even a draft defence placed before the court for its consideration.

4.From the 2^nd defendant’s filing of the Acknowledgment of Service up to the date of the hearing, there had been nearly 4 months’ interval.  Mr Lui for the 2^nd defendant accepts that there had been a long delay.  He however, takes the procedural point that the plaintiff had failed to give notice of an intention to enter judgment under Order 19 rule 8A. 

5.He accepts that there is no prescribed form for a notice under Order 19 rule 8A.  When asked whether the Summons itself could constitute notice, he submits that it does not constitute notice.  In his submission, there ought to be 2 clear days’ notice before the Summons (ie the application for judgment) was taken out.

6.Ms Kwong for the plaintiff submits that the Summons constitutes effective notice.  She submits that under the rule, so long as the Summons was served more than 2 clear days before entering judgment (as in judgment being delivered by a judge), it would be effective notice.

7.Order 19 rule 8A(1)(a) provides that:-

“(1) No party shall enter judgment under the provisions of this Order against a party who has filed an acknowledgement of service giving notice of intention to defend, or on a counterclaim, unless-

(a) after such acknowledgement of service or counterclaim has been filed, and not less than 2 clear days before entering judgment, the party intending to enter judgment has served notice in writing of his intention to do so on the party against whom judgment is sought or, if that party is legally represented on his solicitor;

(b) evidence of such service by way of affidavit has been filed in the Court."

8.Ma J (as he then was) discussed at length the law relating to Order 19 rule 8A in Schindler Lifts (Hong Kong) Ltd v Ocean Joy Investments Ltd. (HCCT 81/2001, 2 January 2002):-

“Once a party is in default of serving its Defence (Or Defence to Counterclaim as the case may be), unlike in the case of a default in giving Notice of Intention to defend, the other party cannot apply for default judgment until he has served a notice giving two clear days’ notice of its intention to enter judgment in default ……” (My emphasis)

9.Thus, the plaintiff is not entitled under Order 19 to apply for default judgment (ie issuing the Summons) without serving 2 clear days’ notice first. In other words, there is no notice given to the 2^nd defendant under Order 19 rule 8A in the present case.

10.Mr Lui for the 2^nd defendant also takes the point that in any case, no evidence of service of the notice has been filed.  There is no dispute that there is no affidavit of service deposing to the effective service of the notice.  In fact there is no affidavit filed in support of the present Summons at all.  Ms Kwong for the plaintiff submits that the Summons had clearly come to the notice of the solicitors for the 2^nd defendant, who had turned up in court at the designated time of the Summons, and had issued a cross-summons for time extension.  Mr Lui had also confirmed that he had received the Summons on 30 March 2016, which was properly served.

11.However, no authority has been submitted to support the contention that where there is no dispute on service, the requirement under Order 19 rule 8A(b) for filing of evidence of service of the notice of intention to enter judgment can be dispensed with.

12.In the circumstance, the plaintiff’s application must be dismissed with costs to the defendant, which shall be a costs order nisi.

13.As to the 2^nd defendant’s summons for extension of time, since nearly 4 months have elapsed since the Acknowledgment of Service, the court is only prepared to grant an extension of 7 days for it to file its defence. There shall be a costs order nisi that the costs of the application be to the plaintiff in any event, which was the costs order sought in the 2^nd defendant’s summons and no further submissions were made at the hearing.

Ms Phyllis Kwong, of Phyllis KY Kwong & Associates, for the plaintiff

Mr PC Lui, of Lui & Law, for the 2^nd defendant