Law Wai Man and Another v. Law Wai Keung

HCA 7255/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7255 OF 1997

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BETWEEN

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Coram : Before Madam Registrar Au-Yeung in Chambers (Paper disposal)

Date of Consideration of Written Submission :  26 May 2010

Date of Handing Down: 26 May 2010

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D E C I S I O N

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1.By summons dated 14 December 2009 (“the Original Summons”), the Defendant applied “to discharge the Charging Order in which 1997, No. A7255 relates”. There is an affirmation in support which deposed to the fact that the Defendant had not received the writ of summons or any related documents.

2.The summons has been adjourned several times, partly because the case has been dormant for many years and the solicitor in charge has left the solicitors’ firm acting of the Plaintiffs, and partly because the Defendant was absent on previous occasions.

3.On 10 February 2010, Master de Souza ordered that the application be adjourned for the last time and that if the Defendant did not appear to prosecute his application, the Court may consider dismissing it.

4.On 3 March 2010, the parties appeared before me. Directions were given for the filing of evidence. As the Defendant is residing out of jurisdiction, I directed the filing of written submission and that this application be disposed of on paper today.

5.The matter comes before me today without affirmation evidence from the Plaintiffs nor written submission from any party. There are, however, 3 new applications:

Application (i)	A faxed “affirmation” by the Defendant seeking to amend the summons to apply “to remove the incumbrances” instead of “to discharge the charging order” in which 1997, No. A7255 relates.
Application (ii)	A summons filed by the Plaintiffs on 11 May 2010 for extension of time by 42 days from the date of an order to file and serve the affirmations in opposition; this application is to be heard 2 days from today, i.e. on 28 May.
Application (iii)	An application by the Plaintiffs by their solicitors’ letter today for an adjournment of the paper disposal of the Original Summons.

These 3 matters should be disposed of first.

The 3 New Applications

6.Application (i) was not made in the appropriate manner. No summons to amend was filed. No affirmation was filed to explain why the amendment was needed. There was no evidence that the application to amend was brought to the notice of the Plaintiffs. Moreover, what are the “incumbrances” to discharge? The Court is not even provided with a land search record showing that there are incumbrances attached to the property in question. More importantly, the “affirmation” stating the intention to amend the summons was not a proper affirmation. It was not affirmed before a notary public (the Defendant being resident out of Hong Kong). It was not even the original. A faxed copy even of a proper affirmation could not be accepted for filing and hence as evidence for a case. In the premises, I decline to give leave to amend the Original Summons until the Defendant takes out the appropriate application.

7.Application (ii) for extension of time will only be dealt with on its return date – 28 May. For today’s purpose, the Plaintiffs have no affirmation evidence before me.

8.Application (iii) for adjournment at the last minute and by letter is totally inappropriate, especially in view of its coming from a firm of solicitors. The solicitors’ letter dated today appears to have been copied and sent by airmail to the Defendant. Even on the face of this letter, the Court cannot be satisfied that the Defendant has been duly informed of this application for adjournment. Since there is no proper application placed before the Court, an order for adjournment as sought by the Plaintiffs will not be granted.

9.Applications (ii) and (iii) demonstrate the cavalier attitude in which the Plaintiffs who are represented treat the Court’s timetable. Such should not be tolerated. I will now deal with the Original Summons.

The Original Summons

10.Although the Plaintiffs have not filed an affirmation in opposition and there is no written submission from the parties, I will only grant an order in favour of the Defendant on the Original Summons if it is correct to do so.

11.The Defendant’s supporting affirmation was very brief. It referred to a charging order in this action. However, the Court file does not show that a charging order has been made. Was it a charging order imposed in another action? Or could it be that the Defendant is referring to some other incumbrance, e.g. registration of the writ of summons in this action as a lis pendens? The Defendant who is acting in person obviously did not know that he needs to provide the usual proof of the existence of the charging order (or other incumbrance) by way of a land search record of the property in question. Thus, I cannot grant an order in favour of the Defendant on the present state of evidence. The Original Summons is thus dismissed without prejudice to the Defendant taking out the proper application for vacating registration of any incumbrance after taking appropriate legal advice.

12.That is, however, not the end of the matter.

The Way Forward

13.This action was started in 1997. No step has been taken beyond seeking an order for service of the writ out of jurisdiction on the Defendant by affirmations about a month after the writ was issued. The order granting leave was not even drafted up. The Defendant has stated in his affirmation that he has never received the writ.

14.I therefore direct the Plaintiff to file and serve an affirmation by 30 June 2010 deposing to the following:

(i)	Whether or not the writ of summons has been served on the Defendant.
(ii)	If the writ has not been served, please state: (a) Why this action should not be treated as having come to an end as the validity of the writ has expired; and (b) Whether the writ has been registered as a lis pendens against the property in question and why it should not be vacated.
(iii)	If the writ has been served, the Plaintiffs are to show cause as to why this action should not be dismissed for want of prosecution or struck out under Order 18 rule 19 for abuse of process, and hence any lis pendens registered against the property in question should be vacated.
(iv)	Further directions will be given at an oral hearing on 14 July 2010 at 9:30 am.  Since the Defendant is resident out of jurisdiction, he does not have to appear at the hearing but he is at liberty to send in his views and seek directions in writing.

The Plaintiffs are reminded to treat this time frame laid down by me seriously.  Given their inaction for about 13 years, I will not lightly grant any extension of time to them.

Conclusion

15.The Defendant’s application under the Original Summons is dismissed as there is no proof that a charging order has been registered against the property in question. This is without prejudice to the Defendant taking out an appropriate application after taking legal advice.

16.I make no order on the Defendant’s application for amendment to the Original Summons and the Plaintiffs’ application for adjournment of the Original Summons. Both applications have not been properly made.

17.As the Plaintiffs do not appear to have done much under the Original Summons and given their cavalier attitude in the matter, I make an order nisi that each party bears his own costs under the Original Summons, including any related costs reserved order.

18.I also direct the Plaintiffs to file and serve the affirmation as stated in paragraph 14 above. The case is adjourned to 14 July 2010 at 10 am for further directions. The Plaintiffs’ solicitors shall draft up the order.

Mr. J. Yau ofY.S. Lau & Partners for the Plaintiffs.

Defendant Mr. Law Wai Keung acts in person.