Mak Yin Ha v. Wong Cho Him William

DCCJ 1832/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1832 OF 2005

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BETWEEN

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Coram : Her Honour Judge C.B. Chan in Chambers

Date of Hearing : 28^th November 2005

Date of Handing down of Decision : 19^th January 2006

DECISION

1.This is an application by the Defendant to set-aside default judgment.  By this action, the Plaintiff, the registered owner of a motor vehicle bearing registration number JF170 claims damages against the Defendant, the authorised driver of the said vehicle who at about 11:45 p.m. on 9^th August 2004 whilst driving the said vehicle met with an accident.   The Plaintiff alleged that the accident was caused by the negligence on the part of the Defendant.   In this action, the Writ was served on the 21^st April 2005 by the Plaintiff’s solicitors on the Defendant by registered post.   The Affirmation of Service of Leung Ka Yan dated 13 May 2005 was filed on the same date.   In default of the filing of Notice of Intention to Defend, by the Defendant, the Plaintiff obtained Interlocutory Judgment for damages to be assessed and costs on 4 June 2005.

2.At the hearing of this application to set-aside judgment, the Plaintiff’s solicitor applied for and obtained a ruling that the Affirmation of the Defendant filed on the 25 November 2005 could not be used in this hearing.  The filing and service of this Affirmation was on a Friday immediately before the hearing, which was on Monday, the 28^th November 2005.   The Plaintiff had less than 2 days notice, which was not sufficient for him to take instructions and file Affirmation in response.  The Defendant has had ample time to file his affirmation but had not done so until the last minute.  

3.The Defendant raised the following in the affirmation in support of his application made by his solicitor Mr. Ching Ming Yu on his behalf:

(1)	The Defendant was not served with the Writ of Summons in that the Defendant did not receive it.   There is an allegation that the Default Judgment was irregular.
(2)	The Defendant was an involuntary bailee of the vehicle, as the vehicle which he drove as agent was entrusted upon him against his will by the Plaintiff’s son as the Plaintiff’s son did not have a valid Hong Kong driving licence at the time.   The Defendant was therefore driving the vehicle at the time as an involuntary bailee of the Plaintiff and/or the Plaintiff’s son.   In the circumstances, he was not liable to pay any damages caused by any alleged negligence on his part.   The Defendant’s solicitor relied on the authority Griffin v George Hammond Plc English Court of Appeal Case handed Down on 16 March 1999.
(3)	The Plaintiff’s action, being an action by the Plaintiff’s insurer in subrogation of the Plaintiff’s right, could not succeed as the insurance provided insurance cover for the Defendant being the agent of the Plaintiff at the time the Defendant drove the vehicle.   The Defendant’s solicitor relied on the 2nd complete paragraph at page 497 of General Principles of Insurance Law by E.R. hardy Ivany 6th Ed. and Mark Rowlands Ltd v Berni Inns Ltd (1986) QB 61.

4.In relation to the 1^st line of argument, paragraph 2 of the Defendant’s solicitor’s affirmation states, “I am instructed by the Defendant that he did not receive the registered mail having allegedly served the Writ of Summons upon him.  Therefore, the service of the writ was defective and the Defendant is entitled to set aside the Interlocutory Judgment as of right.”    The Plaintiff’s solicitor referred to the Affirmation of Leung Ka Yan filed on the 13 May 2005 wherein he affirmed to service of the sealed copy of the Writ by registered post in an envelope duly prepaid and properly addressed to the Defendant at his usual and/or last known address and the letter and/or envelope so posted has not been returned to the firm of the Plaintiff’s solicitor.    He affirmed that the sealed copy Writ of Summons so posted would have come to the Defendant’s knowledge with 7 days after the date of posting.   The certificate of posting by registered post was exhibited to the Affirmation of the Plaintiff’s solicitor filed on the 23 July 2005 marked Exh. “PYK-3”.  

5.The Plaintiff’s solicitor in his affirmation also stated that a copy of the covering letter enclosing the Writ of Summons addressed to the Defendant had been sent to the Defendant’s solicitor on the 21^st April 2005.   The Defendant’s solicitor would have had notice of the service of the Writ on the Defendant and would have in normal course informed the Defendant.  

6.There is no evidence from the Defendant stating that he had not received service of the Writ.   The evidence related to this came from his solicitor and is hearsay.   In the light of clear evidence of service by registered post which had not been returned in the post to the Plaintiff’s solicitor’s firm, and notice of the service of the Writ having been given to the Defendant’s solicitor by sending to the Defendant’s solicitor a copy of the covering letter enclosing the Writ of Summons by way of service on the Defendant, I am not satisfied that the Defendant has not received service of the Writ or had no notice of its service.   I am of the view that service of the Writ was regular having fully complied with the rules.   Furthermore, the Summons to set aside Judgment had not raised the issue that the Judgment was irregular or the grounds of the objection as is required by Order 2 Rule 2 of the Rules of the District Court.  The Defendant without compliance with Order 2 Rule 2 could not raise the issue of irregularity.

7.In relation to the second line of argument; it is difficult to imagine how anyone could be an involuntary bailee as a driver of a vehicle.   Even if the Defendant had to be persuaded and cajoled to drive the vehicle, once he agrees to drive it, it could not be the case that he is an involuntary bailee.   I find that there is no substance to this line of argument or defence advanced.

8.In relation to the third line of argument, this line of argument is based on the principle of subrogation.   Subrogation occurs when the Insurer has paid out the amount claimed by the insured against the insurance policy and the Insurer stands in the shoes of the insured and claims against the third party who had caused the insured to incur the loss, which is covered by the insurance policy.   The Defendant’s solicitor referred to the 2^nd complete paragraph at page 497 in General Principles of Insurance Law in the Chapter entitled Subrogation.   This passage states,

“Further, the right of subrogation cannot be exercised against a co-insured, nor against a person for whose joint benefit the subject matter has been insured.”

9.Were this action not taken in subrogation by the Insurer, this line of defence would not be applicable.   The Defendant has the onus to establish that he has a defence which has a reasonable prospect of success as I have found that the Interlocutory Judgment is a regular judgment.   There is no evidence that the action was taken out by the Insurer in subrogation.   In fact from the way in which the Particulars of Loss and Damages is drafted, it is highly unlikely that the claim was taken out by the Insurer.    The particulars of loss and damages include the hire charges of the hire purchase agreement.   Such hire charges would not be part of the value of the vehicle and would not be covered by the insurance policy, which could only cover the value of the vehicle.   As the Defendant has the onus of establishing that he has a defence which has a reasonable prospect of success, in my view, his defence is speculative and is only maintainable were the claim taken out by the Insurer in subrogation.   As it seems from the manner in which the claim is drafted that the claim was in all probability not taken out by the Insurer, in my view, the Defendant has not established that he has a defence with a reasonable prospect of success.   

10.The Interlocutory Judgment entered is only on liability only.   Any issue related to quantum is a matter to be decided and tried in the assessment.   As far as liability is concerned, in my view, the Defendant has not established that he has a defence with a reasonable prospect of success and I dismiss his application. 

11.Application dismissed with costs of the application to the Plaintiff including all costs reserved in respect of this application to be taxed if not agreed.

Representation:

Mr. Pang Yiu Kwong of Messrs Michael Pang & Co. for the Plaintiff.

Mr. E. Ching of Messrs Ching & Co. for the Defendant.