The Incorporated Owners of May Moon House v. Lai Mun Han Rossett

DCCJ1269/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1269 OF 2005

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BETWEEN

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Coram : H H Judge H C Wong in Chambers

Date of Hearing : 25 August 2005

Date of Delivery of Decision : 25 August 2005

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D E C I S I O N

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1.The defendant applies to set aside judgment entered in default against her within 5 days of the date of judgment.  The defendant alleged that she had never resided at the premises at the address that the plaintiff had effected service by inserting in the letterbox of that particular address.  The address was Flat 3B, May Moon House at No. 97 Waterloo Road, Kowloon.  (hereinafter referred to as “Flat B.”)

2.The address of service was premises purchased by the defendant’s husband, Mr Yeung, in 1992.  He transferred his ownership to the defendant in May 2001.  The affidavits and exhibits of both parties showed that the defendant and her husband have frequently attended the IOC’s general meetings and they had resided in another unit of the same building which they also owned between 1991 and 1993.  They were also owners of another unit, a third unit, in the same building which they sold together with the unit they had resided in 1991 to 93.

3.Flat B was the only unit that Mr Yeung still owned up to 2001 and since 2001 up to the present owned by the defendant.  It is quite clear on the affidavits and exhibits that the defendant and her husband had never resided in those premises.

4.It is also not disputed that the plaintiff admitted that the defendant’s face is known to the IOC members.  The present IOC chairman, Miss Fong, is in fact a neighbour residing at Flat 3A next-door to Flat B.  There had also been at least two separate proceedings in the year 2000 at the Small Claims Tribunal and the Lands Tribunal between the IOC and the defendant’s husband, Mr Yeung.  The defendant exhibited records in the Small Claims Tribunal and the Lands Tribunal that Mr Yeung had given notice to the IOC in those proceedings, that his correct address for service was 152-154 Boundary Street, Fortune Garden, 1B (hereinafter referred to as “the home address”.)

5.Mr Yeung had also publicly informed the IOC at its general meeting on 19 April 2001, less than a month before the assignment to his wife of Flat 3B, his official address of service at the home address and had  also sent a written notice to the IOC.  This was minuted at the meeting as was the fact that this meeting was attended by both Mr Yeung and Mrs Yeung. 

6.The plaintiff claimed it was not aware that Mrs Yeung was the defendant, Lai Mun-han.  Again, at the Small Claims Tribunal hearing, Mr Yeung had filed and served a notice that his wife, the defendant Lai Mun-han, would represent him at the Small Claims Tribunal proceedings, stating her full name and ID card number in the notice.  This notice was given in August 2000.

7.According to the defendant’s affidavit, the writ was served on Flat 3B in a brown envelope with no sender’s return address.  The photograph of the envelope exhibited bore no solicitor’s name or address.  It was, however, marked “Private and Confidential.”  Under those circumstances, I am not surprised that the occupant of Flat 3B would not open such a letter addressed to the defendant without her permission although the occupants were the defendant’s sister and her husband. 

8.I am satisfied from the affidavit evidence that both the defendant and her husband were well-known to the IOC members.  They have lived at the building between 1991 and 1993.  They owned three units at one time in the building and they frequently attended the IOC meetings and voiced their opinions publicly and repeatedly.  The defendant in particular represented her husband on more than one occasion at these meetings.  Miss Fong, the present chairman, lives next-door to Flat 3B in Flat 3A, admitted knowing the defendant by face and knew the defendant frequented the building.  Records of previous court proceedings showed the plaintiff had formal notice of the defendant’s full Chinese name and ID card number. 

9.Based on these facts, the defendant clearly is known to the plaintiff, and the fact that she frequented the building, visiting her sister who was a tenant of Flat 3B, is also public knowledge to occupants of the building.  This was admitted by the plaintiff, particularly when the defendant’s husband made such a lot of fuss about the address of service on past occasions.  These, therefore, should be knowledge common to the IOC board members.

10.It is the duty of the plaintiff to ascertain the correct address for service of the defendant.  I was referred to the case of Hong Kong Mortgage Corporation Limited v Ching Kit Yu HCMP2226 of 2002, date of judgment 15 April 2003 by Deputy High Court Judge To.  The facts in that case referred to the address for service in the mortgage deed and the case was on the service by the mortgagee bank on the mortgagor regarding the mortgage.  Provisions were made in the deed of mortgage of the address for service.  That case obviously is distinguishable from the present case where there is no deed between the parties as to the correct address for service or the proper service address.

11.In the present case, the dispute is between the IOC and an owner whose identity is known and made known to the IOC.  The tenants at Flat 3B are also known to the members of IOC for they have been living at Flat 3B in the past few years.  Although they were related to the defendant, it must be obvious to the IOC the defendant had never resided at that address.

12.I am satisfied, based on the aforesaid, the plaintiff knew that Flat 3B is not the last known address or address for service of the defendant.  The speed within which judgment was obtained and the speed within which the defendant applied to set aside the judgment in default shows that one party was eager to dispose of this case and the other to defend this case.

13.I am satisfied the service was irregular and I set aside the judgment.

(Court discussion re costs)

14.Cost to follow the event.  Costs to the defendant, to be taxed if not agreed.

(Court discussion re certificate for counsel)

15.With counsel’s certificate.

Miss Margaret Yu, instructed by Messrs Cheng, Yeung & Co., for the Plaintiff

Miss Kitty Tsang, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the Defendant