劉互慈 v. 張永輝（張偉賢之遺產執行人）
Read the full judgment text of DCCJ 2990/2020 on BabelCite. This District Court judgment was delivered on 26 July 2022.
1. This is the defendant’s appeal against the order of Master Jocelyn Leung dated 19 October 2021 (“ the Subject Order ”) dismissing the defendant’s application by summons dated 22 July 2021 (“ the Setting Aside Summons ”)
Cites 4 cases
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DCCJ 2990/2020 [2022] HKDC 768 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2990 OF 2020 -------------------- BETWEEN
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--------------------- DECISION --------------------- 1.This is the defendant’s appeal against the order of Master Jocelyn Leung dated 19 October 2021 (“the Subject Order”) dismissing the defendant’s application by summons dated 22 July 2021 (“the Setting Aside Summons”)
2.As the originally hearing date scheduled on 8 April 2022 would have fallen within the General Adjournment Period announced on 4 March 2022 due to the Covid-19 pandemic, and considering it appropriate, this appeal was directed to be disposed of on papers. 3.Both parties hitherto were not legally unrepresented, but they are now. In this appeal, Mr Eugene Kwan and Mr Andrew H P Lau, both of counsel, respectively represented the plaintiff and the defendant. 4.It is trite that an appeal from a Master to a Judge is dealt with by way of an actual rehearing of the application which led to the order under appeal. I therefore would treat the Setting Aside Summons as if it came before me for the first time. The plaintiff’s pleaded claim and the procedural history 5.On 18 June 2020, the plaintiff, acting in person, issued the Writ in this action against Mr Cheung Wai Yin (“the Deceased”). The Writ was endorsed with a one-page Statement of Claim in Chinese. 6.The plaintiff’s claim is a straight forward one for the repayment of loans advanced to the Deceased. It pleaded that from 2013 to 2015, the plaintiff lent to the defendant, her then boyfriend, a total of HK$1,005,300 on 15 occasions. The particulars were pleaded, which I reproduce in the table below (“the Table”).
7.The plaintiff further pleaded in her Statement of Claim that in 2013 the Deceased orally promised her that he would repay her within a year, that every year he said he would repay her, and over the phone the defendant said he was sick, and he would repay her as soon as possible, and that she waited one year after another, for 7 years now altogether and the defendant has not repaid her at all (the exact words pleaded in Chinese were: “被告人在2013口頭承諾一年內會還錢本人，每年都話會還錢給我，電話中說他因生病，會盡快還錢給我。一年又等一年，借了7年錢給他，冇要求收利息，至今一分一毫未還錢給我。所以我要追回全數如上述所有款項”). 8.The Deceased in fact had unfortunately passed away earlier in February 2020. The plaintiff through Whatsapp messages sent from the Deceased phone number and the bailiff serving the Writ on the defendant at his residential address in early September 2020 were both told about the passing of the Deceased. 9.By summons issued on 19 November 2020 (“the Amendment Summons”), the plaintiff sought to amend the Writ to sue the personal representatives of the Deceased’s estate. 10.At the first hearing of the Amendment Summons held on 15 December 2020, the plaintiff and the present defendant Cheung Wing Fai, the Executor of the Deceased’s estate, attended. 11.Upon the plaintiff filing a further affirmation and revising the draft Amended Writ to properly name the defendant as Executor of the Deceased’s estate, another Master on 5 February 2021 gave leave to amend the Writ per the revised draft. 12.On 18 February 2021, the plaintiff served the Amended Writ to the defendant by registered post. 13.As no Acknowledgment of Service was filed by the defendant, on 12 April 2021 the plaintiff applied for default judgment, which, as mentioned, was entered on 22 April 2021 (“the Default Judgment”). 14.The Default Judgment was served on the defendant by registered post on 27 April 2021. 15.On 3 June 2021, the plaintiff obtained a Charging Order: Notice to Show Cause charging the flat known as Flat G, 2/F of Tower 4, Wing Fok Centre, 1 Luen Chit Street, Fanling which was registered in the Deceased’s sole name. 16.On 22 July 2021, the defendant took out the Setting Aside Summons. In respect of the Setting Aside Summons, both the defendant and the plaintiff have respectively filed 2 short affirmations. As both parties in this action have filed quite a number of affirmations, I will refer to them by their dates. The defendant’s 2 affirmations were respectively filed on 22 July 2021 and 2 August 2021 (respectively “D-2021Jul22 Aff” and “D-2021Aug02 Aff”), while the plaintiff’s were respectively filed on 26 July 2021 and 1 September 2021 (respectively “P-2021Jul26 Aff” and “P-2021Sep01 Aff”). 17.The Setting Aside Summons was heard substantively on 19 October 2021. Both parties appeared in person. At the conclusion of the hearing the Subject Order was made. 18.On 1 November 2021, the defendant filed the Notice of Appeal through his solicitors. On 9 November 2021, the said Charging Order was made absolute. 19.On 7 February 2022, I gave leave to the parties to file further affirmations as both parties have since become legally represented and would like to file properly prepared ones. The defendant filed his on 21 February 2022 (“D-2022Feb21 Aff”), a reply affirmation of his dated 16 March 2022 (“D-2022Mar16 Aff”) and also filed an affirmation of Madam Ng Siu Fong dated 1 November 2021 (“NSF-2021Nov01 Aff”), which pursuant to my Order given on 7 February 2022, was treated as filed with the said leave. The plaintiff filed hers on 2 March 2022 (“P-2022Mar02 Aff”). The defendant’s explanation for not filing the Acknowledgment of Service in time; the Default Judgment regularly entered 20.The defendant does not dispute that the sealed copy of the Amended Writ has been served on him by post. Indeed, in D-2021Jul22 Aff[1] he expressly affirmed that he received it on 18 February 2021. There was therefore due service of the Amended Writ on him. 21.The defendant explained in D-2021Jul22 Aff that when he received the Amended Writ on 18 February 2021, he saw that there were amendments in red, like the draft Amended Writ enclosed with the Amendment Summons which he received by post on 23 November 2020. He therefore mistakenly thought that the Amended Writ was a draft, and he did not file the Acknowledgement of Service to respond. 22.Be that as it may, the defendant’s mistaken belief clearly did not affect the validity of the service. In the result, the Default Judgment was regularly obtained. Legal principles guiding the setting aside of a regularly entered default judgment 23.The relevant principles are trite and well settled (§§13/9/12 to 13/9/17 Hong Kong Civil Procedure):-
The plaintiff’s case and her supporting documentary evidence 24.The plaintiff’s case in gist is this. 25.She acquainted the Deceased in 2012. The Deceased then said that he owned and operated an estate agency company and an interior design company, that he held a Master degree, that he was unmarried and he had just broken up with her girl friend. Not long after, the plaintiff and the Deceased developed a romantic relationship. In November 2012, the Deceased claimed that he had mortgaged his home in Fanling to a friend to secure a loan of HK$2,000,000 to develop a very promising real property business in Korea. He said he travelled to Korea in January 2013 and had signed an agency contract with a developer there. He sent pictures of the trip to the plaintiff[2]. Since then, he had been sharing with the plaintiff his business plan. 26.Not long after, the Deceased said the HK$2,000,000 he borrowed from a friend was about to be used up. He then asked the plaintiff for loans. He said that once the real property in Korea was sold, he would be able to repay the plaintiff. 27.Between 12 April 2013 to 22 July 2013 and on 10 occasions, the Deceased persuaded the plaintiff to lend various sums to him, being items 1 to 10 particularized in the Table. The fact that these 10 sums had been paid to the Deceased was well substantiated by documents the plaintiff produced:-
28.In respect of item 5 above, the plaintiff produced copy of a cheque issued by Messrs Wong & Co solicitors to her dated 3 May 2013 in the sum of HK$450,000[3] and a deposit slip of the same day depositing cash of HK$150,000 into P’s CHB Account[4]. Her case is that the cheque was a loan she obtained from Konew Finance Express, which cheque she cashed the same day in the presence of the Deceased. She handed HK$300,000 cash to the Deceased as a loan and deposited HK$150,000 into P’s CHB Account to meet the monthly repayments due in respect of the other loans. 29.In respect of item 6 above, the plaintiff’s case is that on 24 May 2013, the Deceased called her saying that he had to go to Shenzhen but was short on RMB and asked her for a loan. She then withdrew HK$25,300 from P’s CHB Account, changed it into RMB and handed the same to the Deceased[5] in an MTR station. Therefore, unlike the other loans, there was no deposit slip in relation to this loan, but the withdrawal of HK$25,300 was recorded in her bank passbook[6]. 30.The plaintiff’s case is that she herself did not have the money to lend to the Deceased. She had to take out altogether 7 loans from various credit card accounts, banks and money lenders (among them the said loan from Konew Finance Express) between April to July 2013 totalling HK$923,000. These loans were listed in a table[7], and the loan agreements and related documents were also produced[8]. 31.The plaintiff’s evidence is that there was no repayment due date fixed or agreed between her and the Deceased regarding these loans. She was told by the Deceased that once there was a first sale of the real property in Korea, he could be able to repay her. However, by July 2013, the plaintiff was feeling the growing financial pressure. She asked the Deceased when he could repay her, and the Deceased then promised her that he would repay the loan in a year[9]. 32.The physical health of the Deceased started to deteriorate in 2014. Since August 2014, the Deceased had borrowed the following sums from the plaintiff to meet his medical expenses.
33.Having received no repayment from the Deceased, the plaintiff had to obtain loans from her sister and to mortgage her home to pay off the aforementioned credit card loans and other loans. 34.The plaintiff had telephoned the Deceased numerous times to chase after the repayment. Each time, the Deceased promised he would try to come up with the money to repay the plaintiff. The plaintiff then waited, one year after another. Finally, on 18 June 2020, the plaintiff issued the Writ and commenced this action. The defendant failed to raise any meritorious defence a. Affirmation of Madam Ng Siu Fong 35.In NSF-2021Nov01 Aff, Madam Ng, who was 70 years old at the time she made that affirmation, gave a chronological account of how she met the Deceased in 1986 and how they became a couple, albeit not having gone through the formality of marriage, and how the Deceased got sick, being treated and eventually passed away in February 2020. She then expressed surprise and disbelief that the Deceased had a romantic relationship with the plaintiff and that the Deceased had allegedly borrowed such a substantial sum of money from her. 36.Clearly, there was nothing in NSF-2021Nov01 Aff that raised a defence. Of note, rather, is that Madam Ng said that the Deceased was not a person of means; nor was her, as she had been declared a bankrupt and remained so until 2005[10]. b. Limitation defence 37.The defendant now contends that there is a meritorious limitation defence as the loans, being items 1 to 10 in the Table, were due and payable on 31 December 2013, and therefore the 6-year limitation period expired by the end of December 2019 and therefore the Writ was issued outside the limitation period. 38.The only basis the defendant repeatedly emphasized on to say that the due date was 31 December 2013 was part of one sentence (underlined below) singled out by him from a paragraph in the plaintiff’s affirmation filed on 3 May 2021, when she was acting in person, to apply ex-parte for the Charging Order Nisi:-
39.The defendant contends that as the year 2013 was the period within which the Deceased “promised” to repay, the last day of 2013 therefore was the due date from which date the limitation would begin to run. 40.For all the reasons expressed below, I am of the clear view that at trial there is no real prospect that the defendant could establish that 31 December 2013 was the date all these loans were due:-
41.Before I leave this topic, I have to deal with two matters gravely misconceived by the defendant. 42.The first matter is this. In §1 of Mr Lau’s written submissions dated 31 March 2022 he said that
43.Though challenged and reminded by Mr Kwan, Mr Lau insisted that there was such alleged “determination” by this court, and made a number of aggressive forensic submissions based on the same. 44.On 7 February 2022, this court heard the defendant’s summons dated 4 February 2022. 45.What happened was that when the defendant filed his Notice of Appeal on 1 November 2021, he at the same time filed without leave 2 substantial affirmations in support. The Notice of Appeal itself asked that leave be given to file those 2 affirmations in the substantive hearing of the appeal itself. All these were clearly procedurally wrong. The defendant therefore issued the said summons seeking retrospective leave to file and adduce those 2 affirmations as new evidence for the appeal. 46.At the hearing, I commented that the affirmations filed by the parties hitherto were filed in person without the benefit of the present legal representation and that the defendant’s affirmations apparently merely tried to raise some “doubts” or “reasons” why the claim should go to trial but not really raising any substantive defence. Having heard counsel and in order to give the defendant a full opportunity to present his side, I gave retrospective leave to file NSF-2021Nov01 Aff and ordered that the other affirmation (of the defendant) be expunged from the court file but gave leave to the defendant to file another affirmation afresh; and then gave consequential leave to the plaintiff to file hers in response. Thus and the circumstance, this court has not made any “determination” whatsoever on any substantive matter. 47.With the greatest respect, Mr Lau has completely mistaken. 48.The second matter is this. Mr Lau submitted that what the plaintiff deposed in P-2022Mar02 Aff as to her conversation with the Deceased in July 2013 (see paragraph 31 above) was “new evidence” contravening the approach of Ladd v Marshall and was inadmissible, and that such “new evidence” was contradictory to what she had deposed in the plaintiff’s affirmation filed on 3 May 2021, and so on. As said, this court has given leave on 7 February 2022 to parties to file another round of affirmation, therefore Mr Lau’s said submission was completely misconceived, quite apart from, as I find, the fact that there was no such contradiction as he now contends. c. The court should exercise caution when a claim is made against a deceased person who cannot now give his version of events or to testify against it 49.I agree with the defendant that the court should approach the plaintiff’s claim with caution and care. It is well settled that “in cases involving claims against an estate of a deceased person who cannot give evidence against the claim, the court is enjoined to approach the claimant’s story with suspicion” (per Fok JA in Re Silver Bell Uniform Ltd [2012] 1 HKLRD 719 at §27) and also “it is common sense that all claims against the estate of a deceased person which had not been put forward whilst they were still living fall to be scrutinized with considerable care, for the obvious reason that the other party to the agreement is in the nature of things unable to give his or her version of events” (per Walton J in Re Gonin (Deceased) [1979] Ch 16 at p 32). 50.However, it is not a rule of law that there must be corroborating evidence for a claim against an estate of a deceased person (Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 and Re Silver Bell Uniform Ltd). Moreover, there is no rule (and the defendant has not submitted that there is any) that a default judgment cannot be given on such a claim or, if given, would have to be set aside to send the claim to be proved at trial. Rather, the court is to be mindful of the fact that the claim has not been made while the deceased was alive and is now made against the estate of a deceased who is not in a position to testify to his version, to scrutinize the claim with considerable care, and to weigh these matters in together with the other factors when exercising its discretionary power as to whether to set aside a default judgment. This I propose to do. 51.Having examined the plaintiff’s claim, particularly all her supporting documentary evidence, I turn to examine the defendant’s. 52.Before filing D-2022Feb21 Aff, the defendant, as he said there, has tried to gather and collate whatever documents or information he could as son and Executor of the Deceased to contest the plaintiff’s present claim. He produced a number of business registration records showing that the Deceased at some point had been the owner of a number of businesses, including an estate agency and an interior design company. 53.The defendant also contacted the banks and obtained bank statements from them. He found out that the Deceased held 3 bank accounts and exhibited copies of their bank statements or bank passbooks. Two of them were savings accounts that did not have any transaction in the period relevant to this action. Indeed, there were only negligible amounts remained in these two accounts. The third was Deceased’s CHB Account, which was a current account. 54.The defendant produced the monthly statements of Deceased’s CHB Account as to the months of May, July and August 2013, September 2014 and February to April 2015 (“the Bank Statements”). To the extent of the relevant monthly periods covered by the Bank Statements, it is shown that the loan amounts alleged in the plaintiff’s claim were indeed transferred or deposited into that account as the plaintiff said and as her documents show. 55.While the defendant expressed doubt that the amounts so deposited or transferred by the plaintiff might well be for purposes such as sale and purchase, investment, carrying out transactions on behalf of others (“買賣、投資、或托人處理交易等等”), other than that of loans, as alleged by the plaintiff[11], the defendant did not say what the other purposes relating to these 10 deposits by the plaintiff in such short span of time were. Indeed, the Bank Statements all showed that substantial cash withdrawals, usually in amounts roughly corresponding to the amounts deposited by the plaintiff, were made immediately or shortly after the deposits or transfers in were effected. Indeed, on the face of the Bank Statements, one simply cannot find any entries that indicate that there were any business activities going on, whether related to these deposits made by the plaintiff, or related to the agency business in Korea claimed by the Deceased, or otherwise. 56.Moreover, the defendant was unable to produce even one page of documentary evidence suggesting or showing any “買賣、投資、或托人處理交易等等” or other business transactions undertaken by the Deceased around the time of the plaintiff’s said 10 deposits. It seems to me most extraordinary if any business transactions were in fact made relating to these deposits that the Deceased would have left no trail of documentary evidence whatsoever. 57.Also importantly, the Bank Statements did not show any entries by way of deposits which showed that the Deceased was earning any income through any employment or by operating any businesses. Equally, in all the affirmations filed by the defendant, there was no evidence that the Deceased was gainfully employed or engaged and as to what amounts he had been earning. There was simply no documentary evidence proffered by the defendant relating to any gainful economic activities undertaken by the Deceased at the material times. There was also no evidence that showed, nor is it the defendant’s case, that the Deceased had any substantial savings. The picture thus presented by the totality of the evidence now before me points to the fact that the Deceased had been living on the amounts provided by the plaintiff. 58.Viewing the matter and all available evidence before me even with such due caution and care, I cannot find anything of substance that justify setting aside the Default Judgment and sending the claim to trial. d. Other miscellaneous “doubt” and matters 59.The defendant also questioned whether the payments made by the plaintiff to the Deceased were gifts, or whether the terms of the loans were so uncertain as to be unenforceable in law, or whether there were considerations in support of the loans, or whether there were intentions to create legal relationship in relation to these loans. These only need to be stated to be dismissed. It is clear that there is nothing to stop a husband and wife, or those in a romantic relationship, from entering into an agreement or a transaction with an intention to create a legal relationship (Granatino v Radmacher [2011] 1 AC 534 at §142). The amounts lent were clearly considerations in support of the loans which would not be enforceable simply because a due date had not been expressed. There was no evidence nor any material to even suggest that these payments were gifts. There is ample evidence to support the plaintiff’s case that she herself took out a number of loans in order to obtain funds to lend to the Deceased. 60.In any case, under settled law, the clear onus to set aside a regularly entered default judgment is on the defendant to raise a defence that has a real prospect of success. Merely raising a cloud of “doubts”, as the defendant is doing here, falls far short of meeting that onus. 61.Mr Lau also said, without citing any authority, that the Writ herein issued as against the Deceased was a nullity. With respect, that was clearly wrong in view of O 15 r 6A(3) which provides that “An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement, and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1) as the case may be, whether or not a grant of probate or administration was made before its commencement”. 62.In Mr Lau’s written submissions, there were also a number of criticisms made against the application and validity of the Charging Order Nisi and Absolute obtained herein by the plaintiff. They are simply irrelevant for the purpose of this appeal. There were also a lot of criticisms here and there made by the defendant himself and Mr Lau against the plaintiff’s conducts in this action. I do not find any of them easy to understand, or of any substance, or relevant for the present purpose. 63.The defendant has explained in some detail the steps he had taken after receiving notice of this action, including seeking legal advice and such. As I conclude that there is no meritorious defence shown, I do not find it necessary to discuss or evaluate the defendant’s conducts. Disposal 64.In the premises, I find that it has not been shown by the defendant that there is any defence that has a real prospect of success, or that there are other reasons or considerations for this court to exercise its discretion to set aside the Default Judgment. Accordingly, I dismiss the defendant’s appeal with costs to the plaintiff with certificate for counsel, to be taxed if not agreed. This costs order is an order nisi which shall become absolute within 14 days from today unless any party applies to vary within that time. 65.For the avoidance of doubt, I also hereby lift the interim stay I previously imposed pending the outcome of this appeal on the Charging Order Absolute herein dated 9 November 2021. 66.Lastly, I thank counsel for their assistance.
Mr Eugene Kwan, instructed by CY Tsang & Co, for the plaintiff Mr Andrew HP Lau, instructed by Jesse HY Kwok & Co, for the defendant [1] 3rd paragraph, at [89] of the hearing bundles [2] Exhibited to P-2022Mar02 Aff at [357] and [358] of the hearing bundles [3] Lower half of [63-20] of the hearing bundles [4] Upper half of [63-20] of the hearing bundles [5] §11 of the plaintiff’s written submission for hearing before Master Jocelyn Leung at [260] of the hearing bundles [6] At [63-23] of the hearing bundles [7] At [63-25] of the hearing bundles [8] At [63-26] to [63-37] of the hearing bundles [9] §16(3) of P-2022Mar02 Aff at [343] of the hearing bundles [10] §15 of NSF-2021Nov01 Aff [11] §19 of D-2022Feb21 Aff at [156] of the hearing bundles | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 2990/2020