So Tai Kwan Jeffrey v. So Lai Kuen Shirley

HCA 2474/2018

[2019] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2474 OF 2018

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DECISION

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Introduction

1.By a notice of motion filed on 19 February 2019 (“the notice ofmotion”), the plaintiff applies for a default judgment against the defendant pursuant to the Rules of the High Court (“RHC”), Order 13 rule 6 and Order 19 rule 7.  The plaintiff is seeking a judgment declaring that the defendant is holding a property known as Flat C on 13^thFloor of Block 2, Charming Garden, No 16 Hoi Ting Road, Kowloon (“the Property”) on trust for the plaintiff, and an order requiring the defendant to forthwith transfer the Property to the plaintiff. 

2.The gist of the plaintiff’s case as pleaded in the statement of claim is as follows:

(1)   The plaintiff is the younger brother of the defendant.  The plaintiff has two other sisters.

(2)   The Property was purchased in 1999 and registered under the names of their mother (“the Mother”) and the defendant as joint tenants.  At the time of the purchase, there was a common intention and understanding among the Mother, the plaintiff and the defendant that the beneficial owners of the Property would be the Mother and the plaintiff.

(3)   At the time of the purchase of the Property, the deposit, the stamp duty, and all the legal costs and expenses relating to the purchase were paid by the plaintiff.

(4)   After purchasing the Property, the mortgage repayments were paid by the plaintiff and the defendant alternately.  The payments made by the defendant were for her use and occupation of the Property.

(5)   The defendant and the Mother resided in the Property until about September 2004.  At that time, the defendant moved out and emigrated to Australia.  From that time onwards, all the mortgage repayments were made by the plaintiff.

(6)   The Mother passed away on 20 September 2018.  The defendant became the sole registered owner of the Property.

(7)   The defendant had, upon her return to Hong Kong for the Mother’s funeral in October 2018, entered and occupied the Property, and changed the locks of the front door of the Property, without notifying the plaintiff.

(8)   As a result, the plaintiff commenced these proceedings to seek reliefs from the court.

3.The evidence on service produced by the plaintiff shows the following:

(1)   The writ of summons was served by inserting the same through the letter-box for the address of the Property on 26 October 2018.

(2)   The defendant was in Hong Kong in late September to early October 2018 for the Mother’s funeral.  During her stay in Hong Kong, she was living in the Property.

(3)   The defendant returned to Hong Kong again on or before 25 October 2018 to deal with matters relating to cremains of the Mother.  This is evidenced by a small package posted bythe defendant.  On this package, the sender is stated to be thedefendant and the return address is the address of the Property, and the date marked on the package is 25 October 2018.

(4)   The statement of claim was served by inserting the same through the letter-box for the address of the Property on 29 November 2018.

(5)   The defendant came back to Hong Kong in early December 2018, and the plaintiff and the defendant met briefly on 9 December 2018 at the columbarium where the Mother’s cremains were located.  The plaintiff was told by his other sisters that the defendant was living in the Property during this visit to Hong Kong.

(6)   The notice of motion and the 1^st affirmation of the plaintiff in support of the motion were served by inserting the same through the letter-box for the address of the Property on 22 February 2019.

(7)   The hearing bundles for this hearing were served by leaving the same in a sealed envelope at the Property on 20 March 2019.

(8)   The plaintiff’s written submissions and authorities were served by leaving the same in a sealed envelope at the Property on 22 March 2019.

4.Based upon the evidence before me, I am not satisfied that there has been proper service of the papers on the defendant.

Service of the writ of summons

5.In order to have a valid service of a writ of summons by insertion through the letter-box for the address of the defendant, the defendant must be within the jurisdiction at the time of the service (See RHC, Order 10, rule 1(2); Chu Kam Lun v Yap Lisa Susanto [1999] 3 HKC 378).

6.A special feature in this case is that the defendant has emigrated to Australia in about September 2004.  She would only come back to Hong Kong occasionally.  The evidence produced by the plaintiff at best can only show that the defendant was in Hong Kong on 25 October 2018.  However, the writ of summons was purportedly served on the defendant by insertion through the letter-box on 26 October 2018.  In my view, there is no clear evidence showing that the defendant was in Hong Kong on 26 October 2018.

Service of the statement of claim

7.The plaintiff is saying that the statement of claim was insertedthrough the letter-box for the address of the Property on 29 November 2018, and the defendant was living in the Property during her visit to Hong Kong in early December 2018.  In these circumstances, the defendant should have notice of the statement of claim.

8.In his 1^st affirmation, the plaintiff stated that according to his other sisters, the defendant was staying in the Property during her visit in Hong Kong in early December 2018.  However, there is no evidence showing how the plaintiff’s other sisters could get this information. Without knowing this, it would not be prudent to act on the hearsay evidence and conclude that the defendant did actually live in the Property during her visit to Hong Kong in early December 2018.

9.In my view, there is no sufficient evidence showing that the plaintiff has brought the statement of claim to the notice of the defendant.

Service of the notice of motion

10.RHC, Order 8, rule 2(1) provides:

“ Except where an application by motion may properly be made ex parte, no motion shall be made without previous notice to the parties affected thereby, but the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make an order ex parte on such terms as to costs or otherwise, and subject to such undertaking, if any, as it thinks just; and any party affected by such order may apply to the Court to set it aside.”

(emphasis added)

11.The plaintiff purportedly served the notice of motion on the defendant by inserting the same through the letter-box for the address of the Property on 22 February 2019.  However, there is no evidence showing that the defendant has ever returned to Hong Kong and visited the Propertyat any time on or after 22 February 2019.  Further, in respect of the purported service of the hearing bundles, and the plaintiff’s written submissions and authorities on the defendant on 20 March 2019 and 22 March 2019 respectively, there is also no evidence showing that the defendant has ever returned to Hong Kong and visited the Property on these dates or at any time thereafter.  The plaintiff has not shown that he has brought the notice of motion to the notice of the defendant.  I do not see any reason justifying an ex parte order in this case.

Disposition

12.For the reasons above, the plaintiff’s motion must be dismissed. I dismiss the motion.  Since the defendant has no participation in this motion, there be no order as to costs.

Mr Derek Hu, instructed by King & Co, for the plaintiff

The defendant was not represented and did not appear.