Henzulea Marian Nicolae v. Yao Liqiong

DCCJ 2131/2024

[2024] HKDC 2144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2131 OF 2024

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BETWEEN

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REASONS FOR JUDGMENT

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INTRODUCTION

1.This is the Plaintiff’s application by summons dated 23^rd October 2024 for default judgment against the Defendant under Order 19 rule 7 (“Summons”).

2.The Defendant is unrepresented and absent from the hearing.  I note that the Defendant attended the hearing in person on 26^th April 2024 before Deputy District Judge B. Mak at which interim injunction was granted against her.

3.At the hearing on 30^th August 2024 (which the Defendant also attended in person), His Honour Judge Harold Leong ordered, inter alia, that court documents served via email to the Defendant’s email address and/or via WeChat to the Defendant’s PRC mobile number (both shown in the order)  be deemed to have been duly served on the Defendant (“30/8/2024 Order”).

4.Pursuant to the 30/8/2024 Order, the Plaintiff’s solicitors sent emails to the Defendant’s email address for service of the following documents:-

(1)  An email sent on 2^nd September 2024 at 14:33 serving the Writ of Summons and the Statement of Claim;

(2)  An email sent on 16^th September 2024 at 17:11 serving the 30/8/2024 Order and the Sealed Injunction Order made by Deputy District Judge B. Mak on 26^th April 2024;

(3)  An email sent on 24^th October 2024 at 16:19 serving the Summons and reminding the Defendant of today’s hearing;

5.According to the Affirmations of Stephen Chan, a trainee solicitor of the Plaintiff’s solicitors, they have not received any notification that any of the above emails has been returned.

6.Also pursuant to the 30/8/2024 Order, the Plaintiff’s solicitors sent a request on 5^th September 2024 at 12:23 to the Defendant’s PRC mobile number to add the Defendant on WeChat (“Add Request”).  On 5^th September 2024, the Plaintiff’s solicitors followed up by sending an email to the Defendant’s email address informing her of the Add Request.  As of today, the Defendant has not accepted the Add Request and service cannot be done by WeChat.

7.Based on the evidence available, I am satisfied that notice of today’s hearing has been duly served on the Defendant and I consider that it is expedient to proceed in the Defendant’s absence pursuant to Order 32 rule 5(1)  of Rules of District Court.

8.After hearing Mr Lam’s submissions, I am satisfied that this is an appropriate case to enter default judgment against the Defendant in the following terms:-

(1)  A declaration that the Defendant did at all material times held and do hold her interest and/or title and/or share of and in the property known as Flat B on 3^rd Floor and Flat Roof appertaining thereto of Block 3, Dawning Views, No. 23 Yat Ming Road, Fanling, New Territories (“Property”)  on trust for and on behalf of the Plaintiff on constructive trust;

(2)  The Defendant do take all necessary steps to transfer, convey and/or assign her legal title and interest in the Property to the Plaintiff within 35 days from the date of this Order;

(3)  An injunction to restrain the Defendant, whether by herself, her servants or agents or otherwise howsoever from carrying out the following acts or any of them, namely:-

(a)  Causing or permitting harassment, nuisance and/or intimidation to the Plaintiff and to his wife, namely Ms Laksamichan (“Wife”);

(b)  Causing or permitting trespass to the Property;

(c)  Causing or permitting damage to the Property (or any part thereof);

(d)  Entering or remaining at or coming with a distance of 30 metres from the Property and/or the common area of the building where the Property is located (“Building”);

(e)  Throwing rocks at and/or around the Property and the Building; and

(f)  Save and except for the purpose of conducting this action and carrying out the judgment entered against the Defendant, approaching or contacting the Plaintiff, whether directly or indirectly, whether by telephone or otherwise;

(4)  Damages for harassment, intimidation and nuisance, to be assessed;

(5)  There be liberty to apply for further directions for the purpose of carrying the above orders into effect;

(6)  The Defendant do pay the Plaintiff’s costs on liability, and the costs of the Summons, with Certificate for Counsel, to be taxed if not agreed.

9.These are my reasons.

THE PLAINTIFF’ S CASE

10.The Plaintiff’s case has been set out in great detail in the Statement of Claim and can be summarized as follows.

11.In or around 2006, the Plaintiff and the Defendant began their romantic relationship.

12.In or around late 2010, the Plaintiff decided to purchase a property in Hong Kong under their joint names with the intention that: (a)  they would cohabit in the property as their home; (b)  they would build a family and have a baby together, and they would arrange for the baby to be born and raised in Hong Kong; and (c)  the property would be used as the office of the Plaintiff’s company.

13.By a formal sale and purchase agreement dated 12^th January 2011, the Plaintiff and the Defendant purchased the Property at the consideration of $2,430,000 (“Purchase Price”).

14.The Purchase Price was paid as follows:-

(1)  The down-payment of $1,230,000 was paid by the Plaintiff using his savings;

(2)  The balance was financed by way of a mortgage loan of $1,200,000 from the Hong Kong and Shanghai Banking Corporation Limited (“Mortgage Loan”);

15.The Plaintiff also paid the expenses incidental to the purchase of the Property including (a)  stamp duty in the sum of $34,100; (b)  legal costs and disbursements in the sum of $5,500; and (c)  agency commission in the sum of $12,150.

16.The purchase of the Property was completed on 18^th February 2011 and the Property was (and still is)  registered in the names of the Plaintiff and the Defendant as joint tenants. 

17.The romantic relationship between the Plaintiff and the Defendant broke down in or around June 2011, and they never moved into the Property.

18.Subsequent to the breakdown of their relationship, the parties had discussions about the Property in early April 2022, whereby a common understanding was formed between them that (“Common Intention”):-

(1)  Notwithstanding that the Defendant is a registered joint tenant of the Property, she has no beneficial interest in the Property, and the Plaintiff is the sole real owner of the Property;

(2)  The Plaintiff would be solely responsible for paying the monthly instalments of the Mortgage Loan;

(3)  The Plaintiff would be solely responsible for paying all expenses incidental to the ownership of the Property (such as rates, government rent and management fees, etc); and

(4)  The Plaintiff would be free to deal with and use the Property as he sees fit.

19.Pursuant to the Common Intention:-

(1)  The Defendant signed a letter dated 10^th April 2012 authorizing the Plaintiff to sign all documents in relation to the Property and to collect rents generated from the Property for an indefinite period.

(2)  The Plaintiff solely paid the monthly instalments of the Mortgage Loan;

(3)  On 10^th July 2013, the Plaintiff paid a sum of $103,502.91 to discharge the Mortgage Loan;

(4)  The Plaintiff (through himself or his friend Mr Bhasin)  solely paid the recurring expenses of the Property, including the rates, government rent and management fees for the Property;

(5)  The Defendant has never made any form of financial contribution towards the Property;

(6)  Since the parties separated, the Defendant has never used or visited the Property. Nor has she benefited in any way from the Property;

(7)  Between 2020 and September 2023, the Plaintiff allowed his friend Mr. Bhasin to stay in the Property without seeking permission from the Defendant. In exchange for residing in the Property, Mr Bhasin paid the management fees, rates and utilities for the Property on behalf of the Plaintiff from 2020 until he moved out in September 2023;

(8)  The Plaintiff used the address of the Property as the registered address of his Company.

(9)  After their discussions in April 2012 until 2023, the Plaintiff and the Defendant had no contact with each other;

(10)  On 3^rd April 2020, the Plaintiff married his Wife in Thailand;

(11)  In or around September 2023, after Mr Bhasin had moved out of the Property, the Plaintiff and his Wife began to reside in the Property as their matrimonial home;

(12)  Meanwhile, according to the understanding of the Plaintiff, (a)  the Defendant married another man in 2013; (b)  a child was born out of her said marriage in 2014; (c)  the Defendant divorced in 2017.

20.In 2023, the Defendant reneged on the Common Intention and demanded the Plaintiff to “buy out” her legal title in the Property.  The Defendant’s demand was refused by the Plaintiff.

21.Despite repeated requests by the Plaintiff, the Defendant has refused and/or failed to transfer her legal title to the Plaintiff.

22.Worse still, as part of the Defendant’s attempt to force the Plaintiff to “buy out” her legal title in the Property, the Defendant had since 2023 pursued a course of conduct which amounted to harassment and/or assault of the Plaintiff and/or his Wife:-

(1)  On 21^st September 2023, the Defendant turned up at the Property uninvited, destroyed the metal door of the Property, and tried to force herself into the Property. On the same day, the Defendant went to the management office of the Property and somehow caused the cancellation of the access card to the Building of Mr Bhasin, Mr Bhasin’s brother and the Plaintiff’s Wife;

(2)  On 22^nd January 2024, the Defendant again went to the Property uninvited and attempted to enter the Property; and the Defendant repeatedly called the Plaintiff by phone;

(3)  On 5^th April 2024, when the Plaintiff was inside the Property, the Defendant attempted to enter the Property forcefully once again, while yelling threatening and intimidating words at the Plaintiff;

(4)  On 8^th April 2024, the Defendant applied glue inside the cylinder lock of the gate of the Property, causing damages to the lock and the gate;

(5)  On 12^th April 2024, the Defendant used an electric drill to once again damage the cylinder lock of the gate of the Property;

(6)  On 18^th April 2024, which the Plaintiff was inside the Property, the Defendant again attempted to forcefully enter the Property using the electric drill. The Plaintiff’s neighbour was also frightened by the Defendant’s aggressive behaviour and feared for the safety of his family, including his children. The matter was reported to the Police. However, even after the Police had asked the Defendant to leave, the Defendant continued to linger at the downstairs courtyard area within view of the Property, and repeatedly and aggressively yelled insults at the Plaintiff. The Defendant also picked up some very large and heavy rocks from the decorative pond in the courtyard and hurled them to hit the Property and/or the side of the Building.

23.The Plaintiff avers in the Statement of Claim that, unless restrained by an order of the Court, the Defendant intends to continue to harass and/or intimate the Plaintiff and/or his wife.

24.On 23^rd April 2024, the Plaintiff commenced the present action against the Defendant seeking essentially the same relief as set out at paragraph 8 above.  The Plaintiff also applied for interim injunction against the Defendant.

25.At the hearing on 26^th April 2024 (which the Defendant attended in person), Deputy District Judge B. Mak granted an interim injunction order against the Defendant to restrain her from harassing and/or intimidating the Plaintiff and/or causing nuisance (“Injunction Order”).

26.At the hearing on 30^th August 2024 (which the Defendant also attended in person), His Honour Judge Harold Leong continued the Injunction Order and made an order for substituted service; see paragraph 3 above. 

27.The Defendant has failed to file any Acknowledge of Service or Defence. 

28.On 23^rd October 2024, the Plaintiff took out the present application. 

PRINCIPLES ON DEFAULT JUDGMENT

29.The principles on granting default judgment under Order 19 rule 7 are well-established and have been helpfully summarized by Deputy High Court Judge William Wong SC in Times Square Limited v Lee Kwun Kit trading as JL Music and Others [2020] HKCFI 438 as follows:-

(1)  The default judgment procedure under Order 19 rule 7 is available in cases where the defendant is in default of notice of intention to defend, as well as in default of defence;

(2)  In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the plaintiff appears to be entitled to judgment on its statement of claim;

(3)  The court cannot receive any evidence, and it is thus not necessary for the plaintiff to prove its case by evidence;

(4)  Notwithstanding the wording in Order 19 rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory;

(5)  With regards to the Plaintiff’s claim for injunctive relief, it is well-established that the court has jurisdiction to grant permanent injunctions in default judgments.

DISCUSSIONS

30.Having considered the material facts pleaded in the Statement of Claim, I am satisfied that the Plaintiff has made out his case on common intention constructive trust in respect of the Property having regard to the well-established legal principles set out in Mo Ying v. Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v. Yeung Chun Pang Barry [2017] 4 HKLRD 327; Cheung Ki Tai v. Cheung Andrew Man Kit [2024] HKCFI 1758:-

(1)  There exists the Common Intention between the Plaintiff and the Defendant whereby the Plaintiff is the sole beneficial owner of the Property and the Defendant would hold her legal title in the Property on trust for the Plaintiff. As held by Cheung JA in Primecredit §2.3, the common intention constructive trust may exceptionally arise after the acquisition of the property;

(2)  The Plaintiff detrimentally relied on the Common Intention by solely paying off the Mortgage Loan and other related expenses concerning the Property;

(3)  It would be unconscionable for the Defendant to depart from the Common Intention and deny the Plaintiff’s sole beneficial interest in the Property.

31.Mr. Lam for the Plaintiff confirms that, since the present case can be resolved by reference to common intention constructive trust, it is not necessary for the Plaintiff to rely on the resulting trust.

32.I am also satisfied that the Plaintiff has made out his case on tort of harassment, intimidation and private nuisance, having to the legal principles set out in Lau Tat Wai v. Yip Lai Kuen [2013] 2 HKLRD 1197; Sir Elly Kadoorie & Sons Ltd v Bradley [2024] 4 HKLRD 428.

33.I agree with Mr. Lam that there is an appropriate case for permanent injunction restraining the Defendant from harassing and/or intimidating and/or causing nuisance to the Plaintiff and/or his Wife.

34.By reasons of the aforesaid, I allow the Plaintiff’s application and make orders in terms of paragraph 8 above.

35.I thank Mr. Lam for his assistance to the Court.

Mr Timothy Lam, instructed by JC Legal, for the Plaintiff

The Defendant was not represented and did not appear