Lai Sai Cheong v. The Personal Representatives of the Estate of Yong Mun (楊滿), Deceased

HCMP 981/2020

[2022] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 981 OF 2020

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BETWEEN

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Before: Deputy High Court Judge Kenneth Wong in Chambers (Open to the Public)

Date of Hearing: 9 June 2022

Date of Decision: 9 June 2022

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D E C I S I O N

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1.The following is my decision on the applicants’ summons dated 5 May 2022.

2.In these proceedings, the plaintiff issued an originating summons on 9 July 2020, seeking a declaration in relation to adverse possession of certain properties in New Territories. The defendant is named as the personal representatives of the estate of Yong Mun (楊滿), deceased. So, in effect, these proceedings were brought against the estate of the deceased.

3.Under Order 15, rule 6A, the plaintiff, after issuance of the originating summons, should have -- if the plaintiff wishes to serve the originating summons on the defendant and carry on the proceedings, the plaintiff must apply for leave to identify and name a person or persons to represent the estate to accept service of the originating summons and to proceed with the proceedings.

4.The plaintiff did not do so and, as counsel for the plaintiff informed me at this hearing, the plaintiff could not find appropriate person to represent the estate. So the matter hung there since the issuance of the originating summons on 9 July 2020 and, up to date, the 12 months from the date of the issuance of the originating summons have long gone. No application was made to extend the validity for the service of the originating summons.

5.On 5 May 2022, Mr Yeung Chi-ho and Mr Yeung Chi-yuen took out a summons in these proceedings for leave be granted to be joined as defendants to the action and/or for them to be appointed to represent the estate of the defendant, deceased, for the purpose of the proceedings herein.

6.However, on the day of the issuance of this summons, the validity for service of the originating summons has long expired, so the proceedings have no longer been undergoing.

7.On 10 May 2022, the plaintiff engaged a new firm of solicitors and issued a notice of discontinuance to wholly discontinue these proceedings. Obviously, this notice cannot be served on the defendant as well because no step has been taken for any order upon any person to represent the estate as the defendant.

8.Although on 30 May 2022 the plaintiff’s solicitors have attempted to serve the notice of discontinuance on the defendant by just sending it by ordinary post to the subject property. The affirmation of service of the plaintiff’s solicitors was said to be serving the notice on the so-called last known address of the defendant. Since, as I have said, no named person was appointed to represent the estate or named as personal representative of the estate for the defendant, that service of notice of discontinuance could not take any effect.

9.Meanwhile, on 28 May 2022, the applicants’ solicitor wrote to the court, seeking for directions as to the way of disposing the summons such that no further time and costs of the applicants and the court would be wasted unnecessarily. This letter is wholly misconceived because the court is not there to give legal advice to the applicants’ solicitors as to the way that the summons should be dealt with. In my view, since the period of validity for service of the originating summons has long expired, it is entirely misconceived for the applicants to issue a summons for joinder.

10.Mr Wong, solicitor for the applicants, submitted to me that the summons was taken out because they had no information concerning the proceedings. This is again entirely misconceived because summons for joinder is not a way or is not a justifiable way for the applicants to get to receive more information about the originating summons.

11.In my exchange with Mr Wong, I have asked whether his firm, solicitors for the applicants, have written to the plaintiff’s solicitors, inquiring about the situation of the proceedings. It transpired that on 10 May 2022, the plaintiff’s solicitors have written to the applicants’ solicitors, informing that service of the summons could not be effected on the defendant within 12 calendar months. Therefore, the proceedings could not be continued. Even having received this letter dated 10 May 2022 and obtained the knowledge that the validity for service of the originating summons has long expired, the applicants saw fit to continue with the summons and hence the matter goes before me today.

12.I think, in my view, the proper way for the applicants to deal with the summons is to apply for withdrawal of the summons because the proceedings are no longer continuing or able to be continued because of expiration of the validity for service of the originating summons.

13.Mr Wong for the applicants submitted to me that service of the originating summons after the expiration of 12 months does not render the proceedings a nullity. In my view, this submission is completely misconceived. The situation here is not concerning whether service on the defendant is defective. The plaintiff has never effected any service on the defendant, not to mention that the plaintiff simply has not yet been, as Ms Cheng for the plaintiff submitted, able to identify any individuals to stand as the personal representative of the defendant. Hence, no application under Order 15, rule 6A has been made for the appointment and for leave to proceed to continue with the proceedings as against that named personal representative.

14.Mr Wong repeated his submission that his clients, i.e. the applicants, simply did not know anything about what was going on with these proceedings. However, as I have already repeatedly indicated, in my view, it is completely misconceived for the summons to be taken out just for the purpose of obtaining more information about the proceedings. It is like using a spoon for cutting an orange. The issuance of the summons is completely inapposite.

15.Further, Mr Wong submitted that the originating summons have been registered in the Land Registry, so as he continued his submission, his being an “interested” party, his clients had been affected and he asked me to make an order today to vacate the registration of the originating summons.

16.In my view, this request is wholly inappropriate. The court is here to deal with the applicants’ summons for joinder. There is nothing before the court concerning vacation of the registration of the originating summons. Therefore, I do not consider I am in any position to consider this suggestion. In any event, Ms Cheng for the plaintiff informed the court that the notice of discontinuance has been caused to be registered in the subject property.

17.In conclusion, the applicants’ summon must be dismissed.

18.I have decided to dismiss the applicants’ summons dated 5 May 2022. In relation to costs, Mr Wong submitted that there should be no order as to costs because, before this hearing, his solicitors for the applicants have written to the plaintiff’s solicitors exploring ways of vacating today’s hearing. And, on the other hand, Ms Cheng for the plaintiff submitted that, since the summons has been dismissed, the plaintiff should be entitled to recover costs from the applicants.

19.Having read the applicants’ solicitors’ “without prejudice save as to costs” letter, I consider that the applicants have genuinely intended to vacate today’s hearing and dispose of this matter amicably with the plaintiff. On the other hand, during the hearing today, Mr Wong insisted that his client was justified in issuing the summons and also for the purpose of knowing more about this litigation, which I disagree for the reasons which I have stated above.

20.Therefore, I think the proper costs order is that there be no order as to costs of the summons, save that the costs of the hearing today be to the plaintiff.

21.The above costs of the plaintiff is summarily assessed at HK$8,000, to be paid by the applicants to the plaintiff.

Miss Kelly Cheng, instructed by K Y Lo & Co, for the Plaintiff

The Defendant was not represented and did not appear

Mr Wong Wai-shan, of Wong & Poon, for the Applicants