Corona Land Com Ltd v. Lo Yum Kwei

DCMP 2106/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2106 OF 2010

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Coram: Deputy District Judge J. Wong

Hearing date: 11 March 2011

Date of Judgment: 11 March 2011

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JUDGMENT

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Application

1.This is an Order 113 application.

Background

2.On 31 July 2010, the Plaintiff commenced the present proceedings against the Defendant.  It was disposed that the Plaintiff acquired the subject land known as Lot No. 2880, DD No. 1, Tung Chung, Lantau Island (“the Land”) on 31 October 1984.  A village house had been built thereon and the Plaintiff did not agree to it.  A demand letter was issued to the Defendant on 28 May 2010 who claimed, inter alia, adverse possession for more than 12 years.

3.The Plaintiff sent someone to visit and inspect the Land.  It further denied the Defendant’s case and demanded him to vacate the Land.  The Defendant did not do so, and the Plaintiff therefore took the matter to this Court.

4.The Defendant contested the proceedings.  On 29 November 2010, the call-over hearing of the parties’ dispute was heard by Master K.K. Pang who, inter alia, granted 42 days for each of them, one after the other, to file and serve affidavit evidence.

5.The Defendant did so.  He deposed that his father and his uncle built a mud hut (“the Hut”) on the Land in about 1905.  The Defendant and his siblings were born and lived in the Hut.  The Defendant married and his family continued living there.  In fact, all the 4 sons of the Defendant were born in the Hut.  In early 1967, the Hut was reconstructed by bricks and granite, as it currently appears.

6.In about 1980, Defendant’s family moved to their 丁屋, but they continued to use the Hut for ancestors worship and storage.  The Defendant further exhibited some documentary proof, including his marriage certificate, various birth certificates, and letter from the electricity company.  Although the “addresses” appearing on the documents were not exactly the official one as of the Land, the Defendant said that they were indeed referred to the Hut.

7.The Plaintiff did not file any reply evidence on the deadline of 21 February 2011.  It however did so by an affidavit of his solicitor on 1 March 2011.

8.Briefly, the solicitor commented that the Defendant’s case was incredible and the “addresses” appearing on the so-called documentary evidence were either addresses of other places or that they did not clearly refer to the Hut.  Finally, he also pointed to various loopholes of the case of the Defendant and asked the Court to allow his client’s application.  On 10 March 2011, Plaintiff took out a time summons asking for leave to rely on the said affidavit in reply.

9.Parties appeared before me this morning.  The Plaintiff was acted by Mr. Luk and the Defendant, Ms Wong of Counsel.  Ms Wong told me that, apart from costs, she agreed to the time summons.  Parties also kindly managed to agree on a set of directions, effectively disposing the Order 113 argument, including that the action would be continued as if begun by writ.  They however again could not resolve the question of costs.

Decision

10.Upon hearing from the parties, including considering the authorities referred to me, I have come to the decision that cost of the application, including Certificate for Counsel for today’s hearing, should be the Defendant’s costs in the cause, to be taxed if not agreed.  My reasons appear in below.

(a)  Costs are question within the discretion of the Court and to be exercised judicially, having taken into all relevant circumstances.

(b)  I agree the proposition that “when the Plaintiff should have anticipated the factual disputes to be raised by the Defendant, and when the proceedings are later ordered to be continued as if begun by writ, Plaintiff may be penalized as to costs (emphasis added)” (paragraph 28/8/2 HKCP 2011 at p.619).  In our case, I take the view that the “factual disputes” were not clearly made out by the letter before action.  The site inspection by the Plaintiff’s agent does not add too much to it. Nonetheless, until the Defendant had filed its opposing affirmation and exhibited various documents, the factual disputes were or should have made known to the Plaintiff.

(c)   Ms Wong also raised a technical point, i.e. the Plaintiff only adduced hearsay evidence which was not permitted under Order 113, as distinguished from Order 14.  I agree.  However, I also take the view that the matter could have been resolved or remedied if it had been brought out at an earlier stage, and perhaps at the hearing before the Master.

(d)  Finally, I should also mention that I could not agree on the proposition made by Mr. Yu that his client could only resort to Order 113 in the circumstances.  Clearly, if the Defendant had supplied to the Plaintiff all the details of the Defence together with his evidence, the Plaintiff could have commenced the proceedings by a writ.

(Discussion with parties on costs and the orders to be made)

11.To conclude, I will make the following orders:-

(a)  In relation to the time summons,

(i)  The time limited for the Plaintiff to file and serve its affidavit in reply be extended to 2 March 2011;

(ii)  The time for service of the summons be abridged; and

(iii)  Costs of the summons be to the Defendant and borne by the Plaintiff, in the assessed sum of $800, payable forthwith.

(b)  As to the Order 113 application,

(i)  Leave for Plaintiff to amend within 7 days the name of the Defendant in the Originating Summons herein from “Lo Yum Kwai” to “Lo Yum Kwei”.  Service of the amended Originating Summons is dispensed with. Similar amendment on other court documents so far filed is also dispensed with;

(ii)  The Action be continued as if begun by a Writ of Summons;

(iii)  The Plaintiff do have leave to file and serve on the Defendant a Statement of Claim within 21 days from the date of the order made herein;

(iv)  The Defendant do have leave to file and serve on the Plaintiff a Defence (and Counterclaim, if any) within 28 days thereafter;

(v)  The Plaintiff do have leave to file and serve on the Defendant a Reply (if any) 14 days thereafter;

(vi)  The matter be thereafter adjourned to a Case Management Conference on a date to be fixed before a Master; and

(vii)  Costs of the application, including Certificate for Counsel for hearing on 13 March 2011, be the Defendant’s costs in the cause, to be taxed if not agreed.

Mr. Jonathan Luk of Messrs. Mayer Brown JSM for the Plaintiff

Ms. Emma S.F. Wong instructed by Messrs. Cheng & Wong for Defendant