Tang Yuk Lam v. Lau Wong Fat and Another
|
CACV000101/1982 Headnote A writ sent by post with no more identification than the defendant's name and the village where he lives is not sufficiently addressed to satisfy Order 10 rule 2(a).
BETWEEN
_________________ Coram: Hon. Leonard, V.P., Cons & Fuad, JJ.A. Date: 14 October 1982 ___________ JUDGMENT ___________ Cons, J.A. : 1. This appeal arises in an action for the specific performance of a contract for the sale of land. The action was brought against three defendants, who are brothers, and upon whom service was effected by post. Apparently the 1st defendant, who is the defendant with whom we are concerned, did not receive the copy of the writ which was sent to him. It was addressed to him, simply "Tse Tin Village, Tuen Mun" It would seem that in that village there is no postal service to the individual houses. Letters are left at either one or more stores and then presumably collected by the addressees personally or by relatives or friends on their behalf. It would seem that the system does work to some extent for other correspondence connected with this action did eventually come to the defendant's knowledge, although none of it within a satisfactory period. 2. Because of the non-receipt of the writ there was of course no acknowledgement of service and no appearance entered in the action. In due course, the plaintiffs took out a summons under Order 86 and judgment was entered in their favour. The judgment was not complied with by any defendant for a very long time, despite strenuous efforts on behalf of the plaintiffs, but now the other two brothers have executed a conveyance of their shares in the land in question. 3. The 1st defendant on the other hand took out a summons to set aside the judgment, his case being that what purports to be his signature upon the contract is in fact a forgery. His summons was dismissed by the master. He appealed to a judge who dismissed the appeal. He now comes to this court. 4. Two questions arise. Firstly, was the service regular and secondly, if the service was not regular, has he shown sufficient merits to have the judgment set aside. 5. Service of writs by post is a fairly recent introduction, now provided for in Order 10 of R.S.C. As it did before, the Order still provides for personal service, but then allows an alternative :-
6. Whether or not service was regular in the present instance depends solely on the question whether the simple nomination of a village, with no further identification of where the addressee is to be found within that village, is a sufficient address under the rule. If it is there can be no doubt that it is in fact the defendant's usual or last known address. 7. In my opinion, the answer to that question is no. I do not attempt an exhaustive definition of the word, and there may well be circumstances in which particular factors will make a difference, but in my view, to satisfy the need for an "address" there must be sufficient written on the envelope for the exact place at which the letter is to be delivered to be reasonably discovered, without the need for assistance from some other source. That seems to me to be in conformity with the basic principle of service, that a plaintiff should make known to the defendant the fact that he is being sued. 8. I accept without hesitation the dictionary definition that Mr. Ching has quoted : "the place to which communications can be sent to reach the addressee." But with every respect to him, that takes the matter no further, for unless the place is sufficiently identified, the communications are unlikely to reach the addressee. We have been referred to many English cases in which postal service has been considered. For myself I find no assistance from those cases, for not one deals with the question which faces us : what does, or does not, constitute an address for the purposes of the rule? 9. Where a person brings an action by writ, Order 6 rule 5 requires him to state an address for service. If he is acting in person the rule gives him no option. He must give his place of residence. It is only if he has no residence within the jurisdiction that he may give something else. Order 12 rule 3, which deals with acknowledgement of service, is to the same effect. Yet there is no such requirement in Order 10 and therefore it seems to me that Mr. Ching is quite correct when he says that an address for the purposes of Order 10 need not be the residence or home of the defendant. It could also be any of the other "addresses" that he suggested, although in the case of a post office box number or poste restante the plaintiff might perhaps have some difficulty in swearing that within seven days the copy of the writ would come to the knowledge of the defendant. 10. It is to be noted that in all examples which Mr. Ching gave the exact place of delivery is clearly identified. That is not so in the" case of a village. If I were asked to take a letter to a village in the New Territories, I could without difficulty find where the village was. But then having reached the village I could not without some further assistance find the person to whom that letter was addressed. The written words, "such and such village", would not be sufficient. 11. I do not agree with the judge below that the non-return of a letter or the mere acceptance of a letter by the post office shows that it is properly addressed. Non-return is of course some evidence of delivery. Account is taken of that in the rule. But it is common knowledge that the staff of the post office will make attempts to deliver letters that are improperly addressed, and they frequently succeed. If, for example, a letter is addressed to a Mr. John Smith at a large block of flats, it may be that the postman making regular deliveries to that block of flats will know at which Particular flat Mr. John Smith lives and the letter will be successfully delivered. However to my mind, Mr. John Smith at a large block of flats is not a sufficient address for the rule. I can see no difference in principle if instead of the knowledge of the postman the knowledge or kindness of the local shopkeeper is interposed in the system. The original letter is still improperly addressed. 12. More difficult considerations would arise if a sufficient address were given but as a matter of practice the post office does not deliver to that particular address or to the area in which that particular address is to be found. However that is not the situation in the present instance, and I am content to leave that question until it actually arises for consideration. Perhaps, having regard to the newspaper article which appeared in yesterday's South China Morning Post, that will now never be necessary. 13. There is also no need to consider whether the words in Rule 3(a) "unless the contrary is shown" apply only to the presumed date of service or whether they also aptly to the service itself. I would only say that, as a present advised, the English cases seem to me to tend towards the first construction. 14. As in my view the judgment in this case was irregularly obtained, there is no need to consider whether the defendant has shown sufficient merits to have the judgment set aside. I would only add in deference to the arguments of counsel that I would probably have come to the conclusion that the judge below took too strict a view of what the applicant had to show in the circumstances. 15. For my part I would allow the appeal with costs here and below.
Leonard, V.P. : 16. I agree and cannot usefully add anything.
Fuad, J.A. : 17. I agree and have nothing to add.
Representation: Brook Bernacchi, Q.C. & Patrick Woo (M/S Arthur Au & Co.) for the Appellant. Charles Ching, Q.C. & Robert Kotewall (M/S K.C. Yung & Co.) for the Respondents. |