Dianoor International Ltd v. Aiyer Vembu Subramaniam

HCA 806/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 806 OF 2008

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 19 November 2010

Date of Decision: 19 November 2010

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D E C I S I O N

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1.The defendant has been represented by Messrs Sit Fung Kwong & Shum (“SFKS”), until 27 October 2010 when he filed a notice of intention to act in person. He stated in the notice an address in Dubai, the United Arab Emirates. The plaintiff’s solicitors now apply for an order to set aside the notice and for documents in the action to continue to be served on the defendant at the address of SFKS.

2.The application is based on Order 12, rules 3 and 4 and Order 67, rules 4 and 7 of the Rules of the High Court.  The summons has been served on the defendant at the address of SFKS.  SFKS has also been named as the party concerned, but it has no opposition to the summons.  The defendant has not appeared at the hearing.

3.Order 12, rules 1(1), 3(2) and (4) and Order 67(4) provide as follows:

“Order 12:

1 (1) Subject to paragraph (2) and to Order 80, rule 2, a defendant to an action begun by writ may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) acknowledge service of the writ and defend the action by a solicitor or in person.

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3 (2) An acknowledgment of service must specify-

(a) in the case of a defendant acknowledging service in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent,

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and where the defendant acknowledges service in person the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor's business address shall be his address for service.

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(4) If an acknowledgment of service does not specify the defendant's address for service or the Court is satisfied that any address specified in the acknowledgment for service is not genuine, the Court may on application by the plaintiff set aside the acknowledgment or order the defendant to give an address or, as the case may be, a genuine address for service and may in any case direct that the acknowledgment shall nevertheless have effect for the purpose of Order 10, rule 1(5), and Order 65, rule 9.

Order 67:

4. Where a party, after having sued or defended by a solicitor, intends and is entitled to act in person, the change may be made without an order for that purpose and rule 1 shall, with the necessary modifications, apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor except that the notice of intention to act in person must contain an address for service of the party giving it.”

4.The intention of Order 12, rules 3 and 4 is clear.  It is to ensure that a defendant contesting a claim here should provide an address within this jurisdiction for service of documents on him.  Though Order 67, rule 4 does not expressly say that the address for service has to be within this jurisdiction, I have no doubt that it has to be within this jurisdiction, otherwise Order 12, rules 3 and 4 can easily be defeated by a defendant who acknowledges service by a solicitors and then files a notice of intention to act in person but not giving a local address for service.  I do not think Order 12, rules 3 and 4 can be defeated that way.  I also refer to the judgment of Chu J, in Questnet Limited v Kurt George Rocco Rink & Anor HCA1475/2006 (15 June 2007) at paragraph 18 where the learned judge referred to the combined effect of Order 12, rule 3(2)(a) and Order 67, rule 4.

5.In the premise I make an order in terms of the summons.  I allow abridgment of time for the service of the summons and affidavit in support.  I also set aside the notice to act in person filed by the defendant and dated 27 October 2010 on the ground that the address stated therein is not an address with the jurisdiction.  Therefore Messrs SFKS shall remain as the solicitors for the defendant. 

6.And I also order that the defendant do pay the costs of this application to the plaintiff.

Mr Anthony Hill, of Messrs Tanner De Witt, for the Plaintiff

Mr W C Tam, of Messrs Sit, Fung, Kwong & Shum, for the Defendant