Wide Fortune (HK) Ltd v. Chan Kwok Chung

DCCJ 2578/2018

[2018] HKDC 1212

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2578 OF 2018

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Before: Deputy District Judge K. C. Chan in Chambers (Open to Public)

Date of Hearing: 26 September 2018

Date of Decision: 26 September 2018

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DECISION

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1.Before me today to be heard together are:-

(a) the plaintiff’s summons taken out on 10 September 2018 for the entry of judgment against the defendant in default of Defence (“P’s Summons”); and

(b) the defendant’s cross summons taken out also on 10 September 2018 for the filing of Defence (and Counterclaim, if any) out of time.

2.The plaintiff issued the Writ herein with a Statement of Claim endorsed on 12 June 2018.  The Acknowledgment of Service and Notice of Intention to Defend was filed on 12 July 2018.  The Defence has not been filed to date.

3.As will be seen, the relief sought in the Statement of Claim contains a claim not described in O 19 rr 2-5, the plaintiff’s application for default judgment therefore falls within O 19 r 7.

4.Though it has been stated on P’s Summons that it relies on O 13 r 6 only, I allow a late application by summons dated 24 September 2018 to amend P’s Summons to rely also on O 19 r 7 as the plaintiff would otherwise be able to rely on the latter rule even without the amendment (§19/7/1 Hong Kong Civil Procedure 2018, Biostime International Investment Ltd v France Heson Paper (HK) Co Ltd [2015] 2 HKLRD 658).

5.Under this rule, the court cannot receive any evidence, but must give judgment according to the Statement of Claim alone, which must show right to the relief sought (§§19/7/11 & 19/7/14, Hong Kong Civil Procedure 2018).  I therefore disregard the affirmation of Chung Chun Yam filed on 10 September 2018 in purported support of P’s Summons; and its costs will be disallowed.

6.It is trite that though paragraph 1 of O 19 r 7 is expressed in mandatory terms, the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment or to extend a party’s time to file Defence when it is just to do so (§§ 19/7/13, Hong Kong Civil Procedure 2018, Wallersteiner v Moir [1974] 1 WLR 991).

7.The reliefs sought in the Statement of Claim are:-

(1) An order that the defendant do allow the plaintiff and its authorized representatives to enter into Shop G1A (the defendant’s shop) for the purpose of reinstatement of the Opening;

(2) Liquidated damages in the sum of HK$190,000, particularized as consisting of security guard fee from 3 March 2018 to the date of Writ (HK$1,000 x 100 days), reinstatement costs of HK$70,000 and costs of expert report and cleaning up respectively at HK$15,000 and HK$5,000;

(3) Continuing costs for security guard at HK$1,000 per day until completion of reinstatement works; and

(4) Interest and costs.

8.The facts pleaded are strict forward and can be summarized as follows:-

(1) The plaintiff is the registered owner of the Ground, 1^st and 2^nd Floors, and the staircase servicing these floors (“the Staircase”), of Fortuna House situated at No 118 Lei Muk Road No 151 Shek Yam Road Nos 2 and 4 Tung Chi Street, Kwai Chung, New Territories.

(2) The plaintiff has exclusive possession of the Staircase.

(3) The defendant is the registered owner of Portion A of Shop G1 on the Ground Floor of the same building (“Shop G1A”), which is adjacent to the Staircase.

(4) Wrongfully and on 3 March 2018, the defendant began to make an opening in the wall separating Shop G1A and the Staircase (“the Opening”) to attempt to open a doorway to gain access to the Staircase.  The defendant’s such act was stopped by the plaintiff.  As seen from photos annexed to the Statement of Claim, the Opening is about 6 feet wide and 3 feet tall, and the concrete there was removed exposing the reinforcement steel bars.

(5) The Opening “constitutes a trespass to the property of the Staircase and a nuisance to the plaintiff and/or the occupiers, tenants or licencees of the Staircase, the 1^st and 2^nd Floors of Fortuna House”.

(6) For security reasons, the plaintiff has been posting a security guard at the Staircase near the Opening.  The plaintiff also cleaned the debris.

(7) Expert report was obtained estimating the reinstatement costs at HK$70,000.

(8) The defendant has refused access to Shop G1A by the plaintiff’s contractor to carry out the reinstatement.

(9) A floor plan of the Ground Floor was also annexed to the Statement of Claim colouring (a) in pink, the Staircase, a Cinema Hall with another staircase adjacent to it, (b) in yellow, Shop G1A and (c) without any colouring, the large area in the middle of the plan marked “shop”.  The meanings of the colouring are not pleaded nor are they discernable from the floor plan.

9.On the cause of action for trespass, the facts pleaded clearly show an intended trespass to the Staircase, such as to justify the granting of a quia timet injunction to enjoin had the plaintiff sought it.

10.However, conspicuously lacking in the Statement of Claim is any plea whatsoever concerning who actually owned the partition wall in which the Opening was made and/or who had the right to sue in relation to it and/or whether it is a common part.  In multi-storey buildings in Hong Kong, these matters are usually provided for and controlled by the DMC.  In the Statement of Claim, there is simply no plea whatsoever about any of these.  It is therefore not clear if the plaintiff did own the partition wall and/or did have a right to sue to reinstate it and/or to sue for the loss flowing from the damage to it. 

11.I turn to consider the cause of action for nuisance.  It is commented in Clerk & Lindsell on Torts that “Trespass is a direct entry on the land of another, and is actionable per se, without proof of special damage, but nuisance is the infringement of the claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage” (22^nd ed, paragraph 20-02) and “A private nuisance may be and usually is caused by a person doing, on his own land, something which he is lawfully entitled to do … causing an encroachment on his neighbour’s land ... ; … physical damage to his neighbour’s land … ; or, unduly interfering with his neighbor in the comfortable and convenient enjoyment of his land” (22^nd ed, paragraph 20-06).  With those statements in mind, it is not apparent that the making of the Opening amounted to a nuisance.

12.It is also not apparent the adequacy of the basis for claiming the past and future costs for the security guard, which form the major component of the plaintiff’s monetary claim.  The basis pleaded in the Statement of Claim was just “For security reasons”, when the photos annexed to the Statement of Claim show that the steel reinforcement bars would still have blocked access through the Opening and temporary constructs could have been put in place on the side of the Staircase to close the Opening.

13.Ms Lo on behalf of the defendant informs the court this morning, and is not disputed, that the defendant has asked his own contractor to perform the works necessary for reinstating the partition wall.  There is however a dispute as to the quality of the reinstatement works, particularly, the quality of the concrete that was poured to fill the Opening.  I am further informed by the parties that steps are taken to resolve this quality dispute.  Evidently, if the quality of the defendant’s reinstatement works is up to standard, then there is a defence to the order sought under prayer one as it is no longer necessary, and the amount of damages should also be reduced.

14.In the circumstances and given the present state of the Statement of Claim and bearing in mind it is a discretionary power whether to give judgment or to extend time when it is just to do so, it seems to me the just course to take is not to grant the default judgment sought (by making no order on P’s Summons), and to give leave to the defendant to file his Defence within 14 days from today.  I so order.  In the meantime, the plaintiff may consider whether to amend to its Statement of Claim.

(Discussion as to costs)

15.The plaintiff shall have the costs of the defendant’s summons for leave to file Defence out of time, summarily assessed at HK$2,000 to be paid forthwith.  The costs of P’s Summons and the amendment summons shall be costs in the cause, with the costs of the said affirmation of Chung Chun Yam disallowed.

Mr Howard Wong, of Zhong Lun Law Firm, for the plaintiff

Ms Lo Yuet Yan Felilia, of Ella Cheong & Alan Chiu, for the defendant