Tang Chok Lam and Another v. Che Wen Seen Yuen Co Ltd

DCCJ 3065/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3065 OF 2011

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BETWEEN

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Coram : Deputy District Judge Grace Chan in Chambers (open to public)

Date of hearing : 19October 2011

Date of decision : 19 October 2011

DECISION

Background

1.Before me today is an inter-partes summons taken out by the Plaintiffs praying for default judgment under Order 19 rule 7 of the Rules of the District Court (“RDC”) against the Defendant for, inter alias, (i) possession of Part of Lot No. 1973 in Demarcation District No. 129 (“the Land”) (as more particularly shown and coloured Pink hatched black on the plan attached to the Statement of Claim as well as the said inter-partes summons; (ii) an injunction that the Defendant, whether by its servants or agents or otherwise, shall be restrained from entering upon using occupying or otherwise trespassing upon the Land or any part thereof; (iii) damages for trespass to be assessed.

2.In the Writ and the Statement of Claim filed by the Plaintiffs, it is pleaded that the Plaintiffs are the managers of Tang Tsun Fuk Tong(鄧全福堂) (“the Tong”) and the Tong was and still is the registered owner of the Lot No. 1973 in Demarcation District No. 129 (‘the Lot”). In July 2010, the Plaintiffs found out that the Defendant has trespassed into the Land without the knowledge and consent of the Plaintiffs by converting the Land for columbarium use.

3.The said conversion of the use of the Land (from recreation use to use as columbarium) caused the Director of Planning to issue an Enforcement Notice to the Plaintiffs, requiring the Plaintiffs to discontinue the columbarium use on the Land. But since the Defendant has remained in possession and use of the Land, the Plaintiffs were unable to comply with the said Enforcement Notice. Prosecution by way of two summonses was thus laid against the Plaintiffs.

4.Due to the matters aforesaid, it is pleaded that the Tong has been deprived of the use, occupation and enjoyment of the Land and suffered loss and damage, including the said prosecution set out in the preceding paragraph.

Applicable Rules

5.Order 19 rule 7 (1) of the RDC provides:

“Where the Plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

6.Default Judgment would be granted by this Court if the Plaintiffscan satisfy me that:

(i) the Statement of Claim has been duly served on the Defendant;

(ii) the Defendant has failed to file Notice of Intention toDefend and Defence; and

(iii) the Plaintiffs have the right to the relief as claimed in the Statement of Claim.

(See Hong Kong Civil Procedure 2011, Volume One, paras. 19/7/2, 19/7/11 and 19/7/14 on pp.424 – 426)

7.It cannot be disputed that the Defendant has not filed any Notice of Intention to Defend nor Defence. The only outstanding items for the Plaintiffs to satisfy this Court is (i) and (iii) above.

Have the Writ and the Statement of Claim been duly served

8.By an Affirmation of Wong Chak Lam (clerk to the Plaintiffs’ solicitors) dated 16^th September 2011, it is said that the Writ and Statement of Claim was served on the Defendant by leaving a sealed copy of the same at its registered office on 22^nd August 2011.

9.By the 2^nd Affirmation of Wong Chak Lam dated 18^th October 2011, it is said that the Writ and the Statement of Claim was posted up at two conspicuous places, one of which is the entrance to an office with a name plate of “紫雲仙苑辦事處”(Chi Wen Seen Yuen office), on the Land on 22^nd August 2011.

10.Under Order 10 rule 1(1) of the RDC, the Writ had to be served personally on the defendant., But in Ho Kwok Wah v Group Jewellery Arts Ltd. & Others [2000] 3 H.K.C. 599, the court held that a writ might be served on a company limited by simply leaving it at its registered office pursuant to Section 356 of the Companies Ordinance (Cap. 32), even though the plaintiff was aware that the office had already been vacated.

11.By virtue of Order 10 rule 4(2) of the RDC, the writ in an action for possession of land must be posted in a conspicuous place on or at the entrance to the relevant premises or land.

12.From the two affirmations set out above, the Writ and Statement of Claim of this action have been served and posted up at a conspicuous place by the clerk to the plaintiffs’ solicitors on 22^nd August 2011. I am therefore satisfied that the Statement of Claim of this action has been duly served on the Defendant.

Are the plaintiffs able to show right to relief under the Statement of Claim

13.In an application under Order 19 rule 7 of the RDC, I have to be satisfied by the Plaintiffs that they appear to be entitled to judgment on the face of the Statement of Claim alone. The Statement of Claim must show a case for the order the Plaintiffs seek to obtain.  However, it is not necessary for the Plaintiffs herein to prove their case by evidence. In fact, it has been held that the Court cannot receive any evidence but should decide on the case according to the pleadings alone (see China Construction Realty Limited v Sino Business Services Proprietary Limited and Others (HCA 1294 of 2005, unreported, 24^th March 2006) and Hong Kong Civil Procedure 2011, Volume One, paras. 19/7/11 and 19/7/14).

14.I am satisfied that on the facts pleaded in the Statement of Claim, the Plaintiff has made out a case against theDefendant. I am satisfied on the face of the Statement of Claim that the Tong has suffered an actual injury to its rights, including but not limited to the deprivation of the use, occupation and enjoyment to the Land; and the prosecution by way of summonses by the Director of Planning.

Conclusion

15.In view of the matters set out above, I shall make an order in terms of the said inter-partes summons and enter Judgment for the Plaintiffs against the Defendant for (i) possession of the Land; (ii) an injunction that the Defendant, whether by its servants or agents or otherwise, shall be restrained from entering upon using occupying or otherwise trespassing upon the Land or any part thereof; and (iii) damages for the trespass to be assessed.

16.Costs should follow the event. Ms. Mak for the Plaintiffs submits a skeleton statement of costs in the sum of $16,200. I take the view that today’s application is a very simple matter, because only the pleadings but not evidence can be referred to. Thus, I would give a broad brush approach and award costs of this action up to today and including today’s hearing by way of summary assessment in the sum of $11,700.

Ms. Claire Mak of Messrs. Wong Hui & Co.for the Plaintiff

Defendant, in person, absent.