The Leighton Park Trust v. Huynh Fai and Another

DCCJ 5025/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5025 OF 2004

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BETWEEN

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Coram : His Honour Judge Chow

Date of hearing : 18^th September, 2007

Date of handing down Decision : 21^st November, 2007

DECISION

1.This is the 1^st Defendant’s application to appeal out of time against the judgment entered by Acting Registrar Yu given on 17.1.2005, and/or the order made by Master S.T. Poon on 23.7.2007 dismissing the 1^st Defendant’s application to set aside the summary judgment dated 17.1.2005.

2.On 23.9.2004, the Plaintiff issued the Writ of these proceedings, and service was then affected upon the Defendants at the Defendants’ residence at Flat 2723, 27^th Floor, On Yeung House, Block 2, Cheung On House, 1 Tam Kon Shan Road, Tsing Yi Island, N.T.

3.An defence dated 21.10.2004 was filed at court.  On 21.12.2004 the Plaintiff issued an O.14 summons.  On 17.1.2005, summary judgment was entered against both Defendants by Acting Registrar R. Yu.

4.Before me the 1^st Defendant raises a new ground not raised before.  The new ground is that at the service of the Writ, he was outside the jurisdiction.

5.Order 10 r.1(2)(b) of the Rules of the District Court (“RDC”) provides:-

“	A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served -
	(a)	………….
	(b)	If there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.”

6.The 1^st Defendant was outside the jurisdiction at the time of service of the Writ.  Therefore the service of the Writ on the Defendant in September 2004 was not in compliance with O.10 r.1(2)(b) and is bad.  The summary judgment was entered pursuant to bad service of the Writ.  Therefore it must be set aside.

7.The Plaintiff submits that:

“

……….the 1st Defendant now alleges that his wife signed court documents in his name and without his authority.  If, as the 1st Defendant claims in paragraph 10 of his 1st Affirmation dated 3rd September 2007 (“HF’s 1st Affirmation”), the 2nd Defendant signed the 1st Defendant’s name on the 1st Defendant’s Acknowledge of Service form and on the Defence, the 2nd Defendant is guilty of contempt of court and of an offence under Section 45 of the Legal Practitioners Ordinance (Cap. 159) punishable by 2 years’ imprisonment and a fine of HK$500,000.  [see Re Ainsworth [1905] 2 K.B. 103]

If the position is as stated by the 1st Defendant, it is submitted that the 1st Defendant has, by his conduct, acquiesced in the unlawful actions of the 2nd Defendant and is thereby estopped from arguing at this late stage that the Summary Judgment should be set aside due to an irregularity.”

8.The acquiescence, if true, operates only between the Defendants; it cannot create any estoppel between the 1^st Defendant and the Plaintiff.  Therefore the Plaintiff’s argument cannot stand.

9.The Plaintiff further submits that:

“

the 1st Defendant has waived any right he might have had to have the Judgment set aside in view of (i) the action he has taken in respect of the numerous (unmeritorious) applications made in the related enforcement action DCMP 1610 of 2006, and (ii) his conduct in continually changing or altering his position as regards his Defence (as is evidence from the 1st Defendant’s affirmations filed in respect of the hearings referred to in paragraph 8 above).  It is submitted that, by his action and conduct, the 1st Defendant has submitted to the jurisdiction of the court and can no longer avail himself of any right to have the Judgment set aside on an alleged irregularity.”

10.The hearings under DCMP 1610 of 2006 involved enforcement proceedings.  They are not related to the setting aside of the judgment.  The Plaintiff has failed to show how the conducts of the 1^st Defendant could be related to the waiving of the right to have the judgment set aside.  The changing or altering of his position in the defence he raised under the proceedings are not related to his waiving of his right to have the judgment to be set aside.  By adopting his positions at those proceedings he was trying to resist the enforcement actions.  I do not accept the Plaintiff’s submissions.

11.The Plaintiff relies on O.2 r.2(1) of the RDC to say that the 1^st Defendant failed to apply to set aside for irregularity within a reasonable time.  RDC O.2 r.2(1) provides:-

“

An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”.

12.It further relies on the statement made by Stone J. in Deng Minghui v Chan Shuh Ling [2007] 7 HKC 414:

“	………. it is prudent to decide solely on a case by a case basis whether a particular set of facts does, or does not, amount to a submission to the jurisdiction ……
	It is settled law that in order to establish that a defendant has, by his conduct in the proceedings, submitted or waived his objection to the jurisdiction it must be shown that he has taken some step which is only necessary or only useful if the objection has been waived or never been entertained at all………….
	… the clear trend of the modern authorities is that the defendant will not be regarded as having submitted by making an application in the proceedings, provided that he has specifically reserved his objection to the jurisdiction”.

The Plaintiff submits that the 1^st Defendant (i) failed to apply to set aside for irregularity within a reasonable time and (ii) took steps by making various applications seeking to resist execution of the judgment against him, and no reservation was made by the 1^st Defendant in respect of any of those applications.

13.On 16.7.2007, the 1^st Defendant applied to set aside the summary judgment made by R. Yu.  It was 2 years 6 months after the judgment had been entered.  In his affirmation dated 8.2.2007, he said “I was not in Hong Kong for years till 11^th January, 2007, Ms. Leong my wife told me about this incident”.  It is very clear that the 1^st Defendant did not try to conceal the fact that he was outside the jurisdiction for a long time before 11.1.2007.  At that time he was not legally represented.  It must be that he did not have proper legal advice about the effect of his absence from Hong Kong.  I must take this important factor into account when considering the Plaintiff’s submission in respect of O.2 r.2(1) of RDC.  It must be that some time after 27.1.2007, the 1^st Defendant came to realize that re O.10 r.1(2)(b) of the RDC would render the judgment irregular.  It cannot be the situation that he knew that the judgment was irregular but he did not make use of it as soon as possible to set the judgment aside.  On 15.2.2007, the said proceedings under DCMP 1610/2006 was heard, and the said affirmation was before the Court.  This shows that he made no attempt to conceal the fact that he was outside the jurisdiction when the Writ was served on him.  It is the situation that he was ignorant to make use of that fact under O.10 r.1(2)(b) of the RDC in order to set aside the judgment.  In my judgment he did try to make his application to set aside the judgment within a reasonable time.

14.The Plaintiff submits that the judgment should not be considered to be an irregular judgment because the 1^st Defendant has submitted to the jurisdiction of the court.  The submission to the jurisdiction of court only took place in January, 2007, whereas the judgment was obtained in 2005.  When the judgment was entered, it is irregular judgment.  The subsequent submission to the jurisdiction of the court in 2007 cannot make the judgment a regular judgment.

15.For all these reasons I set aside the judgment made on 17.1.2005, and the order made on 23.7.2007.  I grant leave to the 1^st Defendant to file and serve his defence within 21 days from today.

Costs

16.I make an order nisi, to be made absolute in 14 days’ time, that the costs in this setting aside application be costs in the cause (with no certificate for Counsel).  I will not disturb the costs order made under DCMP 1610 of 2006.

The Plaintiff : represented by Mr. Mark Pierrefront of M/S Victor Chu & Co. (up to 5.11.2007) (Legal representation by M/S. Jonathan Rostson, Solicitors from 6.11.2007)

The 1^st Defendant : represented by Ophelia Yap, instructed by M/S W.K. To & Co., Solicitors.