Long Whole Investments Ltd v. Ho Ching Yee and Others

DCMP 3446/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3446 OF 2015

--------------------------------

--------------------------------

-----------------------

DECISION

-----------------------

1.This is the 1^st defendant’s application by summons dated 13 June 2016 under Order 28 rule 4(1) of the Rules of District Court (Cap 366H) to set aside my Order made on 8 June 2016 granted in my decision delivered extempore after hearing submissions of the plaintiff’s counsel at the hearing that day in the 1^st and 2^nd defendants’ absence. That Order is a possession order granted in respect of Apartment D2, 2^nd Floor, Hillwood Vista, Nos 114-116 Austin Road, Kowloon, Hong Kong (the “Property”).

2.In such an application to set aside, “the test is whether the defendant has by his evidence shown a real prospect of success” and where the defendant alleges that he is unaware of the proceeding, the principles governing such an application to set aside are the same as those for setting aside judgment entered in default under Order 13” of the Rules of District Court: see Hong Kong Civil Procedure 2016 Vol 1 §28/4/1. Thus, the Court has to consider (1) the reason for the default; and (2) prospects of success.

3.There is no doubt that the papers had been duly served on the 1^st defendant for the hearing on 8 June 2016. The 1^st defendant explained in her supporting affirmation that she arrived on the 2^nd floor of the District Court Building that morning and stayed in my Court room the whole morning until 1 pm.  Suffice to say that if she were not properly served, she would not have arrived at the District Court Building.  Suffice also to say that if the 1^st defendant were in my Court room that morning, where I heard submissions and delivered my extempore decision, the whole process of which lasted from about 9:50 am until 10:35 am or so, it is very surprising that the 1^st defendant did not come forward to make her submissions.

4.In any event, without finding whether or not what the 1^st defendant said in her affirmation are true, I am prepared, for the present purpose, to proceed on the basis that the 1^st defendant had good reasons for the default.  Thus, the issue is whether she has good prospects of success in defending herself.  I heard the 1^st defendant’s oral submissions.  She seemed to contend that the plaintiff was not the registered owner or the licensor of the Property; she also contended that the plaintiff has not properly or at all authorised any lawyers to deal with the present matter or with her.  She further contended that by reason of these, the plaintiff’s application to recover possession of the Property is improper and/or illegal.

5.Having considered all these contentions of the 1^st defendant, I have no difficulty rejecting them as groundless.  Further, although the 1^st defendant did not repeat her written submissions filed for the last hearing, I have re-considered the same and maintain that the 1^st defendant’s defence has failed.

6.Therefore, I dismiss the 1^st defendant’s summons.  Since the 1^st defendant’s summons is dismissed on “prospects of success”, I award costs to the plaintiff.  However, I do not grant certificate for counsel, as this is a very simple matter.  I summarily assess the costs to be HK$12,000.

Mr Chan Hei Ching, instructed by Liu, Chan & Lam, for the plaintiff

The 1^st defendant appeared in person

The 2^nd defendant was not represented and did not appear

The 3^rd defendant was not represented and did not appear