Multi Rich Far East Ltd v. Hui So Ling and Another
Read the full judgment text of HCA 2088/2018 on BabelCite. This High Court CFI judgment was delivered on 22 May 2019.
1. This is the plaintiff’s (“ P ’) application by summons pursuant to Order 19, rule 7 for judgment against the defendants (“ Ds ”) in default of Notice of Intention to Defend and of Defence.
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HCA 2088/2018 [2019] HKCFI 1363 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2088 OF 2018 ______________
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______________ DECISION ______________ 1.This is the plaintiff’s (“P’) application by summons pursuant to Order 19, rule 7 for judgment against the defendants (“Ds”) in default of Notice of Intention to Defend and of Defence. 2.The Writ herein was taken out on 7 September 2018. According to P’s pleaded case, P has since 29 June 2017 become the legal and beneficial owner of certain properties within Shui Ning House at Nos 24 – 28 Shui Ning Street (“P’s Property”). The 1stdefendant (“D1”) also owned a unit within Shui Ning House (“D1’s Property”). D1’s Property is adjacent to P’s Property. D1 has allowed certain unauthorized and illegal structures (“alleged Illegal Structures”) to have been erected on the “Flatted Roofs” of Shui Ning House as an extension and forming part of D1’s Property. D1’s Property has been occupied by the 2nddefendants (“D2”). The alleged Illegal Structures have trespassed onto P’s Property. They have also caused nuisance, and their erection in breach of the Deed of Mutual Covenants. P therefore claims:
3.I am concerned about whether the alleged Illegal Structures have been sufficiently defined on the face of pleadings. They are pleaded in paragraph 4 of the Statement of Claim as including “inter alia, some metal fencing enclosure and projected metal canopy with concrete parapet wall extended to [P’s Property] from [D1’s Property].” The descriptions are only inclusive, but not definitive. I note further that the alleged Illegal Structures are only identified by a square hatched black on a plan attached to the Statement of Claim. It provides at best only some indications as to the general location of the alleged Illegal Structures. It does not tell the reader what and where the alleged Illegal Structures exactly are. In any event, no dimensions have been provided thereon. The plan is also specifically said to be “For the purpose of identification only”. 4.The service of the Writ is in order. Ds have failed to file any Notice of Intention to Defence. Nor have they filed any Defence. P therefore took out the present summons. It was taken out pursuant to Order 19, rule 7. The service of the summons is also in order. 5.Order 19, rule 7(1) provides as follows:
6.Although Order 19, rule 7(1) is expressed in mandatory terms, the rule is not mandatory but discretionary—see Hong Kong Civil Procedure 2019, §19/7/13. 7.In the present case, a declaration is sought. It is not the normal practice of the court to make a declaration without a trial—Hong Kong Civil Procedure 2019, §19/7/20. There are exceptions to this practice,but P has made no effort in any attempt to establish any exception. 8.Further, injunctions (both mandatory and prohibitory) are sought. I repeat my concern about the identification of the alleged Illegal Structures. I am not satisfied that the Court should at this stage exercise its discretion and grant the injunctions sought. 9.In the circumstances, I refuse the application. I leave it to P to decide whether it wants to proceed to trial to prove its case. 10.As Ds did not appear, I make no order as to costs.
Ms Ip Wan Hei, of Ernest Li & Co, for the plaintiff The 1st and 2nd defendants were not represented and did not appear | |||||||||||||||||||||||||||||||||||||||||||||||||