Yau Kar Kwai v. Shan Jigesh Rajnibhai and Another

DCCJ4752/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4752 OF 2017

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BETWEEN

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DECISION

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1.I have just heard an interesting argument: Can a plaintiff apply for default judgment under Order 19, rule 7 before the expiration of the period fixed by the rules for service of the defence?

Background

2.The plaintiff is the owner of Flat 10 on 4/F of Kiu Fung Mansion, and the defendants are the owners of Flat 10 on 5/F above.

3.It is the plaintiff’s case (as revealed by the Statement of Claim) that water has been seeping from the defendants’ premises into the plaintiff’s premises since May 2017, causing damage to the plaintiff’s property and inconvenience and discomfort to the plaintiff.  The plaintiff’s surveyor has determined that the seepage is due to a leakage in the floor slap and walls and the flushing system in the bathroom inside the master bedroom of the defendants’ premises.

4.The plaintiff commenced this action on 26 October, seeking injunctive relief as well as unliquidated damages.

5.According to the affirmation of the process server, the writ was sent to the defendants by registered post on 27 October.  By operation of Order 10, rule 1(3)(a), service was deemed to be effected on the 7^th day after posting, ie on 3 November.  The defendants had 14 days to acknowledge service, ie up to and including 16 November: see Order 12, rule 5 and Order 13, rule 6A.  The defendants did not give any notice of intention to defend and the plaintiff proceeded with the action as if the defendants had done so under Order 13, rule 6.  The defendants then had 28 days to file a defence: see Order 18, rule 2.  The last day for the defendants to file a defence was, according to my estimation which is not disputed by the plaintiff’s counsel, 14 December.

6.The plaintiff took out the present summons on 13 December for default judgment when the defendants had not yet defaulted in serving a defence.  The application was therefore premature.

The argument

7.Mr Lam (for the plaintiff) argues that I should overlook the prematurity.

8.He recognises the authority of Charlesworth v Focusmulti (cited in paragraph 13/9/6 of the Whitebook) that where a judgment was entered prematurely, ie before actual default has been made by the defendant, this entitled the defendant to have such judgment set aside as a matter of right.  Such an irregularity was considered so fundamental that it could not be cured under Order 2, rule 2(1).  But he submits that I would not be offending that authority because by the time of this hearing, the period for the defendants to serve a defence has surely expired and any judgment that I enter today will not be premature.  He says that by now, the defendants have had full advantage of the period fixed by the rules for service of the defence and should suffer no prejudice.

9.He further observes that the defendants may subsequently apply to set aside the default judgment under Order 19, rule 9 and the defendants will not be shut out from justice if they have merits.

Discussion

10.Notwithstanding the valiant attempt of Mr Lam, I am not persuaded by his argument.

11.There is a fine distinction between the procedure under rules 2-5 of Order 19 on the one hand and the procedure under rule 7 on the other hand.

12.For the former, the plaintiff may (in terms of the rules) enter judgment after the expiration of the period fixed for service of the defence.  According to paragraph 19/2/4 of the Whitebook, the practice is for the plaintiff to tender a copy of the judgment for entry against the defendant.  No formal application is required and judgment is entered upon the plaintiff’s certification that the time for service of the defence has expired and that the defendant is in default.  This is an administrative process.

13.However, if a plaintiff makes a claim beyond the scope of rules 2-5, he is not entitled to enter judgment administratively.  He may only apply for judgment in terms of rule 7, and he may only do so after the expiration of the period fixed for service of the defence.  In other words, he is not entitled to apply for judgment before the time for service of the defence has expired.

14.It is clear that the present application is premised upon Order 19, rule 7 (see paragraph 4 of Mr Lam’s written submissions) as one of the relief claimed by the plaintiff in this case is injunction.  As such, it falls within the second regime mentioned above.

15.Mr Lam seeks to counter the clear requirement of rule 7 essentially by two arguments.  First, he prays in aid the ruling in LPK v SH also known as HSC, unreported, FCMC 14402/2011, 27 June 2012 that the critical time for determining whether an application was made prematurely is at the time of the hearing.  Secondly, he draws an analogy with the notice of intention to enter judgment procedure under Order 19, rule 8A.  He submits that the purpose of the present summons is, just like a rule 8A notice, to give warning to the defendants that no indulgence will be given once default occurs, and it has been decided that a rule 8A notice may be served at any time, whether or not the defendant is already in default: see Ho Yuen Tsan v Hop Wing Transportation Company Limited [1997] HKLRD 46.  The court should therefore, as his argument goes, permit this application made before default.

16.I am not familiar with the procedure in the Family Court.  It appears from paragraph 22 of the Reasons for Decision in LPK that one of the main reasons for that ruling was that:

“there was no statutory provisions… which restricts the time for issuing the DA Summons to be after the subject Decree Nisi was granted.”

Here, as I have observed above, Order 19, rule 7 specifically provides that the plaintiff may only take out an application for default judgment after the expiration of the period for service of the defence and that is a clear injunction against taking out an application prematurely.

17.In Ho Yuen Tsan, the Judge approached the issue as a matter of statutory construction.  He reiterated the observation of Steyn J in Libanbois v Fama Shipping Limited [1992] 1 Lloyd’s Rep 197 at 199 that the rules must be construed in a purposive manner and that the court must reject an interpretation which results in wasteful procedures unless the language of the rules compels such an undesirable result with precision and clarity.  In that case, however, the Judge felt unable to strain the clear meaning of the plain words of the rule to resolve any deficiency in the rule by judicial legislation.

18.The defendants in this case have so far been unresponsive.  If I rule against the plaintiff now, there is nothing to stop the plaintiff from taking out the same application tomorrow and costs and valuable time will be wasted.  Be that as it may, what Mr Lam has suggested me to do is exactly what the Judge in Ho Yuen Tsan felt unable to do, ie to ignore the clear meaning of the plain words of Order 19, rule 7.

Disposition

19.In my view, the plaintiff has jumped the gun in taking out the summons one day before the expiration of the period for service of the defence by the defendants.  But for Order 19, rule 7, the plaintiff would have no other jurisdictional basis to apply for default judgment.

20.I therefore dismiss the summons with no order as to costs. 

Mr Timothy Lam, instructed by Chung & Kwan, for the plaintiff

Both defendants in person did not appear