Read the full judgment text of HCA 361/2001 on BabelCite. This High Court CFI judgment was delivered on 7 January 2002 before Chu J.
Civil procedure – judgment in default of notice of intention to defend – Order 13 rule 6 and Order 19 rule 7 of the Rules of High Court – 21 lots of land in Yuen Long, Northwest New Territories – 1947 succession (1st Succession) by Lam Shui Yan to the Deceased, allegedly by fraudulent misrepresentation that he was the Deceased's nephew – 1997 and 1998 successions (2nd Succession) to 1st to 3rd defendants as tenants-in-common – whether declarations can be made in default of pleading – Wallersteiner v. Moir rule that the court should not make declarations in default of defence, especially allegations of fraud – Patten v. Burke Publishing: rule is one of practice only – Declaratory relief is the only substantial relief after abandonment of damages claim – court granted limited declarations that the 1st and 2nd Successions should not have been approved and that the defendants should not have been registered as successors – court declined to declare fraud as fact without hearing evidence – whether the plaintiff is the lawful adopted son of the Deceased under Chinese customary law or the Civil Code of the Republic of China – alleged adoption in Guangdong in 1948 under the Republic of China regime – Civil Code of the Republic of China governs but key fact (same family origin) neither pleaded nor proved – expert evidence on customary law under "Tai Tsing Lut Lai" (大清律例) and the Civil Code held to be the wrong approach – court declined to declare the plaintiff the lawful adopted son or entitled to registration under s.17 of the New Territories Ordinance (Cap 97) or s.12 of the New Territories Land (Exemption) Ordinance (Cap 452) – discontinuance against the 4th defendant (Secretary for Justice for Secretary for Home Affairs) who agreed to be bound by the outcome made such declarations inappropriate – costs – gross sum costs order under Order 62 rule 9(4) – disbursements allowed in full, profit costs reduced (PLY time reduced by 2.5 hours, CWL time reduced by 5 hours) – plaintiff's costs fixed at HK$125,000.
Legal issues: Whether to grant judgment in default and make declarations without a trial · Whether to declare Lam Shui Yan acted fraudulently in obtaining the 1st Succession · Whether the plaintiff is the lawful adopted son and successor to the Deceased's estate · Assessment of costs on a gross sum basis
Outcome: Judgment in default granted in favour of the plaintiff in part: declarations that the 1st and 2nd Successions should not have been approved and that Lam Shui Yan and the 1st to 3rd defendants should not have been registered as successors. The plaintiff's claim for declarations that he is the lawful adopted son and entitled successor was not granted. Costs awarded to the plaintiff on a gross sum basis.
Cited by 20 cases