Kwong Wing Lan v. The Personal Representative of the Estate of Edward Chan Otherwise Known As Chan Tak Tai ,Deceased

DCCJ 3379/2015

[2018] HKDC 1175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3379 OF 2015

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Before: Her Honour Judge Winnie Tsui in Chambers (Open to Public)

Date of Hearing: 19 September 2018

Date of Decision: 19 September 2018

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DECISION

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Introduction

1.This is the plaintiff’s application for default judgment pursuant to Order 19, rule 7 of the Rules of the District Court.  She seeks declaratory relief against the defendant, the personal representative of Mr Edward Chan.  Mr Chan had been registered as owner of a residential flat in North Point since 1967.  Her cause of action against the estate is adverse possession of the flat.  

2.Based on the rate demand note produced at today’s hearing, I am satisfied that the rateable value of the flat is below the jurisdictional limit of the District Court.

3.According to the affidavit evidence filed by the plaintiff earlier on in these proceeding, Mr Chan passed away in the United States in 1981 and was survived by his wife, son and daughter.  No grant of probate or administration has been made in Hong Kong.  By letter dated 30 December 2015 from Messrs Woo Kwan Lee & Lo, the solicitors stated that they acted for the son and daughter and that the two of them had no interest in the action and did not wish to be involved.

Procedural history

4.The writ in this action was issued on 22 July 2015.  It was a generally endorsed writ.  And this, I should pause to highlight here, is a key feature in the present application.  By order dated 6 February 2017, the validity of the writ was extended for 12 months from the date of the order.

5.By order dated 27 February 2017, leave was granted to the plaintiff to amend the writ.  The amended writ was reissued on the following day.  It remained to be the case that no statement of claim was endorsed on the writ.  In fact, it was not until 8 May 2017 that the plaintiff filed a statement of claim.

6.Pursuant to leave of the court granted ten days later on 18 May 2017, the amended writ was served on the official solicitor on 15 June 2017, who was appointed to represent the estate of Mr Chan solely for the purpose of accepting service of the amended writ.  The official solicitor has not lodged any acknowledgment of service.

7.I should add here that, first, an affidavit was filed on the plaintiff’s behalf deposing to, amongst other things, the service of the amended writ; and, second, although the plaintiff’s solicitors tried to serve the statement of claim on the official solicitor at the same time, the latter refused service and therefore the statement of claim was not served.

8.A few months later, by order dated 25 September 2017, leave was granted to the plaintiff to proceed in the absence of a person representing the estate of Mr Chan under Order 15, rule 15(1).

9.The next material step taken by the plaintiff was her application for leave to amend her statement of claim.  Leave was granted on 14 May 2018.  The amended statement of claim was filed on the following day.

10.On the occasion when leave was granted, the master also made the following order:-

“Service of the said Statement of Claim is required”

11.In light of the earlier Order 15, rule 15 order, it seems questionable whether service of the amended statement of claim would be appropriate. 

12.When the court granted the Order 15, rule 15 order, it was satisfied that Mr Chan, now deceased, has no personal representative and no one has come forward to represent the estate in this action.  That was the basis and reason why the court exercised its discretion to allow the plaintiff to proceed in the absence of a person representing the estate.  Here, as there was no such person, there was no person on whom the amended statement of claim could possibly be served.  If the master’s intention had been to keep the children of Mr Chan informed of the progress of the case, a direction could have been given explicitly to that effect.

13.In any event, the plaintiff’s solicitors then took step to serve the amended statement of claim on the surviving family members of Mr Chan by post on 19 May 2018.

14.However, for the purpose of the rules, this cannot be proper service of the amended statement of claim on the defendant in this action, for the reasons just stated.

15.The upshot of all these is that the amended statement of claim has never been served in these proceedings.

Discussion

16.As such, I do not think that it is open to the plaintiff to invoke Order 19, rule 7 to enter default judgment against the estate.

17.Order 19, rule 7(1) provides as follows:-

“Where the plaintiff makes against a defendant … a claim of a description not mentioned in rules 2 to 5, then, if the defendant … fails … to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

18.There are two conditions which need to be satisfied before a plaintiff makes an application. First, the defendant has failed to serve a defence.  Second, the time for the service of defence has expired.

19.Here, the amended statement of claim has never been served on the defendant.  Time has never started to run for the service of the defence and, as such, would never expire.  The second condition is not met.  Order 19, rule 7 has no application here.  The plaintiff cannot avail herself of the mechanism in that rule to obtain judgment.

20.Ms Linda Wong, counsel for the plaintiff, submits that notwithstanding the above, the court should still accede to the plaintiff’s Order 19, rule 7 application, given the procedural history and the circumstances of the case.  Ms Wong informs the court that when the plaintiff commenced the action in 2015, she did not know that Mr Chan had passed away.  It was only after much time and efforts had been spent by the plaintiff’s solicitors over the past three years that more factual information was obtained, contact details of Mr Chan’s surviving family members were located and the various court orders to take the matter forward, such as the Order 15, rule 15 order, were obtained.

21.However, given the limited role which the official solicitor was prepared to undertake and, notwithstanding the plaintiff’s solicitors best efforts, all that could be done (and was in fact done) was to serve the amended statement of claim on the family members of Mr Chan.  There was, Ms Wong submits, no other option available to the plaintiff’s solicitors to serve the amended statement of claim on the defendant as such.  Ms Wong submits that the amended statement of claim should be taken as served on the defendant on 26 May 2018 (ie 7 days after the posting).  Time for the service of defence therefore expired on 23 June 2018. Hence, when the defendant took out the present summons on 13 July 2018, both conditions in rule 7(1) were satisfied.

22.I have to say that the efforts of the plaintiff’s solicitors as described by Ms Wong are in fact borne out by the affidavit evidence so far filed in these proceedings.  However, the “best efforts” point has no relevance to the question whether the two conditions are met or not.  I reject Ms Wong’s submission that I should regard the sending of the amended statement of claim to the family members as proper service of the pleading within the rules.  It is not a matter of discretion. It is a matter of compliance with the pre-requisite conditions of the rules.

23.I should perhaps add that the situation would be different if the amended statement of claim had been endorsed on the amended writ.

24.Thus included, when the amended writ was served on the official solicitor on 15 June 2017, the amended statement of claim would have been served at the same time.

25.Under Order 13, rule 6(1), the plaintiff could have proceeded with the action on 28 June 2017 as if the defendant had given notice of intention to defend.  And, under Order 18, rule 2(1), the time for the defendant to serve his defence would have fallen on 26 July 2017.

26.By that time, the two conditions under Order 19, rule 7 would have been fulfilled.  The court could then have proceeded to consider the substantive merits of the application and decide whether it would be appropriate to exercise its decision to grant the declaratory relief as sought.

27.This is in fact what happened in Lau Siu Kwong David v The personal representatives of Lee On Yuen, deceased HCA 10001/2000, 9 April 2001, a case cited by Ms Wong. In that case, the plaintiff proceeded with a claim of adverse possession against the estate of the deceased paper owner in the absence of a person representing the estate under Order 15, rule 15 and succeeded in obtaining declaratory relief under Order 19, rule 7.  See page 2 of the decision which states that the action there was by a specially endorsed writ; and page 3 in which Recorder Edward Chan SC recited the procedural history and the operation of the relevant rules in Orders 13 and 19.

28.It is not immediately apparent to me why the writ here was not endorsed with a statement of claim in the first place.  Given the nature and basis of the claim, namely adverse possession of a flat at which the plaintiff has alleged resided over 30 years without any interruption by the registered owner, a statement of claim could have readily been put together when the plaintiff commenced the action.  Ms Wong explains at today’s hearing that the solicitors then took the view that the defendant might concede the case and no statement of claim was prepared at that stage so as to save costs.  That course of action is perhaps understandable.  But, with hindsight, if the statement of claim had been endorsed, the plaintiff could at least have come within the rules in the first place.

Conclusion

29.I dismiss the plaintiff’s application.

(Submissions on costs)

30.The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  There be a certificate for counsel.

Ms Linda Wong, instructed by Tang & So, assigned by the Director of Legal Aid, for the plaintiff