Chan Chun Hang v. Cao Ming Nan and Others

DCCJ 2655/2013

[2021] HKDC 470

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2655 OF 2013

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Before:  Deputy District Judge Kay Seto in Chambers

Date of Hearing:  12 April 2021

Date of Decision: 22 April 2021

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D E C I S I O N

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1.This is an application by the plaintiff by summons dated 17 November 2020 against the 11^th and 12^th defendants for judgment in default of defence pursuant to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”).

Background

2.The plaintiff is the registered owner of Lot No. 1463 in Demarcation District No. 130, Tuen Mun, New Territories (“Land”). The Land is surrounded by pieces of land owned by the 1^st to 13^th defendants.  According to the plaintiff’s case, the defendants trespassed the Land and caused a brick wall and other structures (collectively, the “Structures”) to be built on the Land in around 1996 or 1997 without the plaintiff’s consent.

3.On 20 July 2013, the plaintiff commenced these proceedings against the 1^st to 13^th defendants by a specially endorsed writ.  The principal reliefs sought are as follows: (i) an order for vacant possession; (ii) an order requiring the defendants to remove the Structures; and (iii) mesne profits to be assessed.

4.The 1^st to 10^th and 13^th defendants filed their respective notices of intention to defend the proceedings within the prescribed time.  The 11^th and 12^th defendants have not filed any notice of intention to defend the proceedings, nor have they filed any defence.

5.On 23 September 2013, the plaintiff filed a notice of intention to enter judgment against all defendants under RDC Order 19, rule 8A.  However, the plaintiff did not issue any application for default judgment thereupon.

6.After the plaintiff filed an affirmation of service on 12 August 2014, he took no steps in these proceedings until 3 May 2016 when he filed a notice of intention to proceed.  Thereafter, pleadings were exchanged between the plaintiff and the 1^st to 10^th and 13^th defendants.  Upon the close of pleadings in November 2017, again no steps were taken by the plaintiff in these proceedings until 8 May 2020 when he filed another notice of intention to proceed.

7.Subsequently, the plaintiff applied for and obtained leave of the court to discontinue his action against the 6^th to 10^th defendants.  In relation to the 1^st to 5^th and 11^th to 13^th defendants, the plaintiff has obtained court directions for the parties to file and exchange their witness statements by 12 May 2021.[1]

8.Meanwhile, the plaintiff took out the present application for default judgment against the 11^th and 12^th defendants.

9.At the hearing, Mr Tang, appearing for the plaintiff, applied for leave to amend the typographical error in the references to Lot No. 1462 in §§1 and 4 of the plaintiff’s summons, which should be read as Lot No. 1463.  I granted leave to the plaintiff to amend the typographical error in the summons as aforesaid.

The plaintiff’s application for default judgment

10.The relevant legal principles applicable to a default judgment application may be summarised as follows:

(1)  Where a defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed for service of the defence, apply for judgment: see RDC Order 19, rule 7(1).

(2)  Where there are several defendants, some of whom give notice of intention to defend and serve defences, and some of whom are in default, the plaintiff may:

(a)  apply for default judgment against the defaulting defendants if his claim against those defendants is severable from his claim against the other defendants; or

(b)  set down the action for judgment against the defaulting defendants at the time when the action is set down for trial against the other defendants: see RDC Order 19, rule 7(2).

(3)  The court’s power to grant judgment under RDC Order 19, rule 7 is discretionary rather than mandatory.  It may, for instance, order the application to stand over until trial where there are matters affecting other parties waiting to be decided: see Halliburton BV Merkezi Hollanda Ankara Merkez Turkiye Subesi v Sheng Yi (HK) Trade Co Limited, HCA 1627 of 2016 (8 February 2017), §21; Alan Chung Wah Tang and Kan Lap Kee (Joint and Several Liquidators of Wan Hin and Company Limited (in Liquidation)) v Chung Chun Keung and Others [2021] HKCFI 369, §13; Hong Kong Civil Procedure 2021, Volume 1, §19/7/13.

11.In the present case, I am of the view that the following matters militate against the grant of default judgment against the 11^th and 12^th defendants.

12.First, based on the plaintiff’s pleaded case, the factual matters which are relevant to the plaintiff’s claim against the 11^th and 12^th defendants overlap with those relevant to the 1^st to 5^th and 13^th defendants.  Mr Tang confirmed that the factual circumstances in relation to the building of the Structures on the Land are common to the plaintiff’s claims against all defendants.

13.These factual matters are disputed by the 1^st to 5^th and 13^th defendants.  In the light of the evidence received, the trial judge may refuse to grant the injunctive relief sought by the plaintiff in relation to the removal of the Structures.  In the circumstances, I am of the view that it would be inappropriate at this stage to enter judgment against the 11^th and 12^th defendants, which would involve an injunction ordering them to remove part of the Structures which are positioned in between, and adjoin, those Structures concerning the other defendants.

14.Secondly, I was informed by Mr Tang at the hearing that the land which is said to be trespassed by the 11^th and 12^th defendants is now in the possession of third party occupants as part of their front yard.  Those occupants do not yet have notice of the present proceedings.  Mr Tang accepted that, in the light of the possibility of those occupants showing cause and joining in these proceedings under RDC Order 15, rule 10(1), it would be more appropriate for the plaintiff to prove his case at the trial.  Mr Tang also fairly acknowledged that the plaintiff would suffer no prejudice by having to proceed to trial against the 11^th and 12^th defendants, alongside the other defendants.

Disposition

15.For all these reasons, I am not prepared to enter default judgment as claimed by the plaintiff.  I would order the plaintiff’s summons to be stood over until trial.

16.I would make an order nisi that the costs of the plaintiff’s summons be in the cause.

Mr Henry Tang of Chan, Evans, Chung & To, for the plaintiff

Eddie Lee & Co., for the 1^st to 5^th and 13^th defendants, was excused from attendance

The 11^th and 12^th defendants, unrepresented, did not appear