Chan Lap Shun v. Cheng Shing and Another

DCCJ 4449 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4449 OF 2009

____________

Coram: Deputy District Judge Rebecca Lee in Chambers

Date of Hearing: 19 October 2011

Date of Decision: 15 November 2011

____________

DECISION

____________

Background

1.By way of Writ of Summons issued on 13 October 2009 (“the WS”), the Plaintiff claims against the 1^st named Defendant Cheng Shing (“D1”) and the 2^nd named Defendant Chan Lap Wah (“D2”) both formerly trading as Yiu Wing Trading Co. (“the Firm”) for, inter alia, the sum of HK$850,000.00, being the amount of a cheque No.178703 drawn by the Defendants on the Hongkong and Shanghai Banking Corporation Limited dated 27 December 2003 and payable to the Plaintiff (“the Cheque”).

2.The Cheque was presented for payment on 29 April 2004 but was returned dishonoured for reason of “refer to drawer”. Notice of dishonour was given to the Defendants by the Plaintiff on 10 May 2004.

3.The Copies of the WS was said to have been served on both D1 and the D2 by way of inserting the same through the letterboxes of their respective usual and last known addresses in Hong Kong on 15 October 2009.

4.The usual and last known address of the D1 was said to be Flat C, 11^th Floor, Kam Wah Building, 226 Cheung Sha Wan Road, Kowloon (“the Cheung Sha Wan Flat”).

5.The Copies of the WS were sealed with seal of the District Court of HKSAR and were accompanied by a prescribed form of Acknowledgement of Service and Form 16.

6.No Acknowledgement of Service was filed by neither D1 nor D2 within the prescribed time. The Plaintiff therefore proceeded to obtain judgment in default on 2 December 2009 (“the Judgment”).

7.Apparently unable to execute the Judgment in Hong Kong, the Plaintiff attempted to execute the Judgment in the PRC, where he believed both D1 and D2 were keeping their assets.

8.On 16 August 2011, Messrs. Winnie Leung & Co. filed Notice to Act for D1 in these proceedings.

9.On 19 August 2011, D1 issued an inter partes summons to set aside the Judgment against D1 (“the Setting Aside Summons”) together with D1’s affirmation in support of the Setting Aside Summons on the same day (“D1’s Affirmation).

10.D1’s case is that the Judgment was an irregular judgment. He also argued that he has a meritorious defence towards the Plaintiff’s claim.

11.The Plaintiff filed an affirmation dated 22 September 2011 to resist the Setting Aside Summons (“P’s Affirmation”). The Setting Aside Summons was scheduled to be heard on 19 October 2011.

12.At the eleventh hour, the Plaintiff agreed to have the Judgment set aside with costs to D1. At the same time, the Plaintiff also invited D1 to agree to an order to the effect that:

(a) the validity of the WS be extended to 26 October 2011 (the WS being expired on 13 October 2010); and

(b) service of the renewed WS on D1 be dispensed with.

13.Not surprisingly, D1 refused to consent to such proposal and the Plaintiff took out an inter partes summons pursuant to O.6, r.8 Rules of the District Court for the above relief (“the Present Summons”).

14.Mr. Cheung for D1 has, at the outset, made clear to me that he has no objection to deal with the Present Summons so long as this Court is prepared to hear the same.

15.An application to extend validity of a writ should be made ex parte: 6/8/8, Hong Kong Civil Procedure 2012 Vol.1 (“the White Book”).  The procedure is that if the plaintiff got a favourable order after the ex parte hearing, he can then serve the writ within the extended period. The defendant may acknowledge service of the writ, give notice of his intention to defend,  or apply to the court for the discharge of the order extending the validity of the writ. The issue whether an extension of the validity of the writ was justified or not will then be considered at an inter partes hearing.

16.Although it is most unusual for a summons to extend validity of a writ to be made on an inter partes basis, it is a mere procedural irregularity which could be cured by O.2, r.1(1): per Godfrey JA, Lee Fai t/a Fai Kee Timber v. Chan Kui [1997] HKLRD 1154, CACV 84/1997.

17.I therefore proceeded to hear the Present Summons on an inter partes basis.

The Plaintiff's Stance

18.Mr. Lee for the Plaintiff submits that the WS has never been renewed and he now asks the Court to extend the duration of the WS under O.2, r.1 and O.3, r.5 although the Present Summons was said to have been taken out pursuant to O.6, r.8 to renew the WS.

19.Mr. Lee invites the Court to exercise its discretion under O.2, r.1 rather than under O.6, r.8.

20.Mr. Lee relies heavily on the case of Bank of China (Hong Kong) Ltd. v. Chen Jianren [2009] 3 HKLRD 163, HCA 2844/2001.

21.Mr. Lee's argument is this: the Plaintiff had good reason to believe that D1 was properly served the WS on his usual and last known address in Hong Kong (i.e. the Cheung Sha Wan Flat). The Plaintiff only learnt on 19 August 2011 when D1 filed his affirmation in support of the Setting Aside Summons (exhibiting his Immigration Record) that D1 was in fact out of the jurisdiction at the time of service.

22.It is said that the WS was properly served, as it was unbeknown to the Plaintiff that D1 was in the PRC.

23.Mr. Lee submits that the facts of the present case are strikingly similar to that of Chen Jianren, that there are "exceptional circumstances" which warrant the exercise of discretion of the Court to extend / renew the WS.

24.It would be helpful to recite the facts of Chen Jianren.

25.The plaintiff claimed against the defendant for payments under two deeds of guarantee.  The writ was issued and served on the defendant in June 2001. Unknown to the plaintiff, the defendant was not in Hong Kong at the time of service.  The defendant did not enter appearance to the writ and default judgment was entered in August 2001.  In April 2006, the plaintiff issued a statutory demand against the defendant and in August 2006 presented a bankruptcy petition against him.  In November 2006, the defendant instructed solicitors to act for him in the action.  On 14 February 2007, the default judgment was set aside by consent.  Thereafter the defendant’s solicitors informed the plaintiff’s solicitors that they had no instructions to accept service of the writ.  The plaintiff then applied for the extension of the validity of the writ and a dispensation from serving the writ because the writ already came into possession of the defendant’s solicitors.  The Master granted leave to extend the validity of the writ and further deemed service to have been effected by reason of it being sent to the defendant’s solicitors in November 2006.

26.The defendant’s appeal against the Master’s Order was dismissed by Deputy Judge Carlson.  In so doing, the Judge accepted that the writ was not amenable to an extension under O. 6, r. 8 because it had expired some five years before the Master’s Order.  However, he considered that the court had wide discretion under O. 2, r. 1 to cure the irregularity and there was further power under O. 3, r. 5 to extend time.

27.In Chen Jianren the plaintiff had assumed that it had effected good service at four addresses, two of which were the defendant’s business addresses and one of which was the address that he had provided when he signed the guarantees.  The necessity for having to make his application for renewal has been caused by the proven fact from immigration records that the defendant was not in Hong Kong on the date of service.  Until that had been demonstrated, the learned Judge held that the plaintiff was entitled to the view that it had validly served the defendant and that it had a good default judgment against him.

28.The learned Judge went on to say that:

“I am entirely satisfied that the Plaintiff had made perfectly good and reasonable efforts to serve the Defendant in 2001. That service was only invalid because, unknown to the Plaintiff, the Defendant happened to be outside Hong Kong on the day of service. It is plain from O.2 r.1 that the court enjoys a wide discretion to cure irregularities of this sort. The court also has express power to extend time under O.3 r.5 which is now the only route available to the Plaintiff for the reasons that I have previously discussed.”

“Mr. Chow has referred to the impact of a renewal on the limitation period. It seems to me that on a proper appreciation of the chronology in this matter (this being a Deed of Guarantee) that Mr. Pow is quite right in submitting that the limitation period will not expire until 2012. There is no limitation defence available to the Defendant of which he might he deprived by a renewal of the writ. His defence is the fundamental one that he did not sign the Deeds in question.”

(emphasis added)

29.On those exceptional facts, the learned Judge finds it entirely proper that the plaintiff should have its writ renewed, as there is no reason why a perfectly good order should be discharged thereby requiring the plaintiff to issue a new writ which it would be able to do, with some five years of the limitation period still to run.

30.It was held that in the absence of any prejudice, in circumstances that the writ had been brought to the defendant’s attention in November 2006 (when it was sent to his solicitors), the Master was perfectly right to have deemed service to have taken place in the way that he did in his Order.  The Order was perfectly sensible and practical and therefore upheld it.

31.Mr. Lee admits that there is one matter which distinguishes the present case from Chen Jianren: the Plaintiff's action in the present case is now time-barred (notice of dishonour was given on 10 May 2004 and limitation period would have expired on 9 May 2010).

32.It is argued by Mr. Lee that within the limitation period, the Plaintiff had no notice or knowledge that D1 was out of the jurisdiction. There was no inordinate delay on the part of the Plaintiff to apply to have the WS renewed/extended as he only learnt of this fact in August 2011.

33.In order to do justice between the parties, Mr. Lee urges the Court to exercise its discretion under O.2, r.1 and O.3, r.5. It is said that the Plaintiff should not be "shut out" of a meritorious claim (a simple dishonoured cheque case) as supposed to a flimsy and incredible defence on the part of D1.

34.Mr. Lee finds support from para.2/1/2 of the White Book which provides:

“The authorities, taken as a whole, show that O.2, r.1 should be applied liberally in order, so far as is reasonable and proper, to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure; but Leal v. Dunlop Bio-Processes International Ltd [1984] 1 W.L.R. 874; [1984] 2 All E.R. 207, CA, and Camera Care Ltd v. Victor Hasselblad AB [1986] 1 F.T.L.R. 348, CA illustrate situations in which the court adopts a less liberal attitude where service out of the jurisdiction has been effected irregularly.”

D1's Stance

35.Mr. Cheung for D1 has succinctly summarized the legal principles by referring me to the relevant paragraphs on O.2, r.1 and O.6, r.8 in the  White Book.

36.Mr. Cheung subimts that the Plaintiff has to satisfy the requirements under O.6, r.8 before he can rely on O.2, r.1. The Plaintiff should not be allowed to enter through the back door of O.2, r.1 where he could not properly enter through the front door of O.6, r.8.

37.Mr. Cheung highlighted the following paragraphs:

“2/1/2

Exercise of power under the rule

Where a plaintiff, just before the expiry of validity of a writ, purported to serve the writ out of the jurisdiction without leave of the court, renewal of the writ under O.6, r.8 was refused. The failure to obtain leave to serve out of the jurisdiction was an irregularity which could be cured by the exercise of the court’s discretion under O.2, r.1. The court, however, would not exercise its discretion under O.2, r.1 more favourably to the plaintiff than under O.6, r.8. The plaintiff should not be allowed to enter through the “back door” of O.2, r.1 where he could not properly enter through the “front door” of O.6, r.8 (Leal v. Dunlop Bio-Processes International Ltd [1984] 1 W.L.R. 874; [1984] 2 All E.R. 207, CA which was applied in Dixon v. Grand Hyatt Hong Kong Co. Ltd & Anor [1994] 2 H.K.C. 489)…”

“6/8/1

This rule provides a comprehensive code for the renewal of a writ, and therefore an irregularity in procedure caused by failure to renew a writ under this rule is such a fundamental defect in the proceedings that the wide powers of the court under O.2, rr.1 and 2 to cure non-compliance with the rules ought not to be exercised by treating a writ which has become invalid for service as though it had been renewed and is therefore valid for service…. The Court of Appeal has made it clear that where there is no jurisdiction to grant an extension pursuant to O.6, r.8 the general powers will only be invoked in exceptional circumstances (Bank of China (Hong Kong) Ltd v. Regal Link Investment Ltd [2009] 3 H.K.L.R.D. 203).”

“In Leal v. Dunlop Bio-Processes International Ltd [1984] 1 W.L.R. 874; [1984] 2 All E.R. 207, CA, the matter was put differently, but in a way that in most cases is likely to secure the same practical effect. There it was held that O.2, r.1 was wide enough to give the court jurisdiction to cure irregular service of a writ, the validity of which had expired before the purported service, but that it would be an improper exercise of discretion under that rule to make good the irregular service retroactively where the writ could not properly have been renewed under O.6, r.8; if the plaintiff cannot properly enter through the front door of O.6, r.8, he should not be allowed to enter through the back door of O.2, r.1 ...”

38.Mr. Cheung also referred to para.6/8/3 and submitted that the Plaintiff must provide “good reasons”, and that carelessness, oversight and incompetence of a claimant’s legal representatives who fail to serve the writ properly within the limitation period are “bad reasons”: sub-paragraph 5(d), (g) and (h).

39.My attention was drawn specifically to the following passages under para.6/8/3/:

“7. A writ will not normally be renewed so as to deprive the defendant of the accrued benefit of a limitation period.”

“8. Where application for renewal is made after the writ has expired and after the expiry of a relevant period of limitation the applicant must not only show good reason for the renewal, but must give a satisfactory explanation for his failure to apply for renewal before the validity of the writ expired.”

40.Mr. Cheung submits that the burden is on the Plaintiff to provide credible evidence in proving "good reasons" under O.6, r.8 to justify the extension of the WS, and there are none in this case.

41.Mr. Cheung first of all referred to the Affrimation of Chan Chi Hung dated 6 November 2009 (i.e. the affirmation of service of the WS). There the deponent stated he “verily believes” that D1 was served the WS by inserting the same through the letterbox of D1’s “usual and last known address”.

42.Mr. Cheung argues that the deponent has to substantiate such a belief.

43.Further, it is said that the Plaintiff ought to have known that D1 was out of jurisdiction at the material times.

44.Mr. Cheung said that the Plaintiff, D1 and D2 are no strangers to each other and they were all in the fabric business. D2 is in fact the Plaintiff’s brother. As appeared from the documents exhibited in P’s Affirmation, back in 2003, he, D1 and D2 were holding joint bank account (p.106, 108 Bundle).

45.In P’s affirmation, the Plaintiff produced a Civil Judgment dated 4 March 2004 by the People’s Court of Zhong Shan City, Guangdong Province, PRC (“CLS-6”, p.93-p.97, Bundle). It is said in paragraph 11 of the affirmation that D1 and D2 set up a fabric business in Zhong Shan in 1997 and the Civil Judgment was in relation to a disupte between D1 and D2.

46.Mr. Cheung points out that such document clearly shows D1’s address in the PRC.  

47.In order words, the Plaintiff should have known that D1 was out of the jurisdiction at the time when he issued/served the WS, and not August 2011 when the Plaintiff received D1’s Affirmation.

48.Further, when the Plaintiff commenced PRC enforcement action against D1 on 2 August 2011, the Plaintiff clearly knew of D1’s address in the PRC (p.31, Bundle).

49.Mr. Cheung also attacks the Plaintiff’s solicitors’ lack of “good and reasonable effort” in serving the WS.

50.It is clear from the Land Search (p.48-p.56, Bundle) that D1 had sold the Cheung Sha Wan Flat (which the Plaintiff relied on as his "last known and usual address”) in 2003.

51.Also, the Business Registration Search Record (p.58, Bundle) shows that the Firm ceased to exist as early as 2000. It also stated that a Mr. Ho I Pang (not D1 and/or D2) was the proprietor of the Firm.

52.Mr. Cheung submits that had the Plaintiff and/or his solicitors bothered to do a Land Search and a Business Registration Search, they should have learnt of these facts.

53.Mr. Cheung argues that the case of Chen Jianren is at least distinguishable, if not irrelevant at all, to the present case. The "exceptional circumstances" referred to by Deputy Judge Carlson must mean that the Plaintiff has done good and reasonable effort to serve the Defendant and that the Plaintiff can issue writ any time before limitation runs out.

54.The mere fact that D1 was outside jurisdiction does not equivalent to a "good reason" under O.6, r.8. Mr. Cheung says that it was the failure on the part of the Plaintiff to do proper investigation before commencing action in Hong Kong which leads to the present situation. Mr. Cheung goes further to suggest that it is a case of carelessness of solicitors which is a “bad reason".

55.More importantly, Mr. Cheung submits that as limitation period has not expired in Chen Jianren, the plaintiff in that case could issue a new writ any time before time expired (with some 5 years to go). It was a merely matter of technicality and therefore the Court in that case was ready to exercise its discretion to extend the validity of the writ.

56.In our case, however, the action is now time-barred, if the WS was allowed to be extended / renewed, the prejudice to D1 is that he would be deprived of the limitation defence.

Discussion

The Test

57.A writ is valid in the first instance for 12 months beginning with its date of its issue.  Where a writ has not been served on a defendant within 12 months, the court may extend the validity of the writ, but such extension can only be for a period not exceeding 12 months at any one time. The extension granted must begin with the date immediately following that on which the writ would have expired and the extension must be specified in the order granting the extension. 

58.It was common ground that the WS, which expired 2 years ago, is not amenable to extension under the provisions of O. 6, r. 8. 

59.I agree with Mr. Cheung’s submission that the Plaintiff has to satisfy the requirements under O.6, r.8 first before he can rely on O.2, r.1.

60.I refer to Tan Kah Eng v. Tan Eng Khiam, HCA 9640/1999, 14 March 2011, where Bharwaney J expressed that just because resort is being had to O. 2, r. 1 and O. 3, r. 5 to renew the writ does not mean that the strictures imposed on the court’s discretion to renew the writ under O. 6, r. 8 are to be ignored, applying Slade LJ’s view in Leal v Dunlop Bio-Processes [1984] 1 WLR 874 at 885C-D. 

61.Following the House of Lords in Kleinwort Benson Ltd v Barbrak Ltd, The Myrto (No. 3) [1987] AC 597, Bharwaney J held that a good reason or a good cause is required to explain the failure to obtain leave to serve out of the jurisdiction or the failure to serve the writ during its original period of validity and that it is not necessary to show an exceptional case or the presence of exceptional circumstances:-

“…where application for renewal is made after the writ has expired and after the expiry of a relevant period of limitation, the applicant must not only show good reason for the renewal, but must give a satisfactory explanation for his failure to apply for renewal before the validity of the writ expired. Once the court is satisfied that a good reason or a good cause has been shown, it moves on to the next stage of the process, namely, to consider all the circumstances of the case, including the balance of prejudice or hardship, and, in this connection, it must weigh the balance of hardship to the plaintiff if the extension is refused and the hardship to the defendant if it is allowed.”

62.I agree with the above analaysis and adopt the test as laid down in Leal:-

(a) Stage One: the Plaintiff must show good reason for the renewal; and he must give a satisfactory explanation for his failure to apply for renewal before the validity of the writ expired;

(b) Stage Two: the court will then consider all the circumstances of the case to weigh the balance of prejudice/hardship to the plaintiff and the prejudice/hardship to the defendant.

63.Reyes J in Pacific Electric Wire & Cable Co. Ltd. v. Hu Hung Chiu [2011] 1 HKLRD 1000 recited Kleinwort where Lord Brandon distinguished 3 categories of situation:

“In Category 1 were cases in which a plaintiff applied for extension of a writ within the period of its validity and before the expiry of the limitation period for the causes of action pleaded. In Category 2 were cases in which a plaintiff applied for an extension after expiry of a writ’s validity but before expiry of the operative limitation period of the causes of action pleaded. In Category 3 were cases in which a plaintiff applied for an extension after expiry of the writ and the operative limitation period. The point of Lord Brandon’s distinction was to stress that it would be unlikely for there to be good reason for extension in Category 2 cases and even less likely for there to be so in Category 3 cases.”

64.The Plaintiff’s application falls under Category 3. He must in his affirmation state fully the circumstances relied on as excusing the delay in making the application.

Stage One: Good Reason for Renewal and Satisfactory Explanation

65.The Plaintiff’s reason and explanation is that he is entitled to assume that service of the WS was effective, as it was unknown to him that D1 was out of the jurisdiction at the time of service. The first time he learnt that D1 was out of the jurisdiction was when he received D1’s Immigration Record (as exhibited in D1’s Affirmation dated 19 August 2011). He then waited 2 months to take out the Present Summons.

66.It is argued on behalf of D1 that the Plaintiff could not just assume the Cheung Sha Wan Flat was D1’s “ususal and last known address”.

67.Mr. Cheung has referred to the Land Search Record and submitted that the belief of the deponent has to be substantiated. Mr. Cheung contends that the Plaintiff had failed to do proper investigation before service.

68.Such sentiment is echoed by Stone J in Deng Minghui (t/a Tianye Industrial (Hong Kong) Co.) v. Chau Shuk Ling Elaine [2007] 1 HKLRD 905:

“it seems to me that the case of Penrose IndustriesLtd. v. Tam Yan Lung, HCA 5783/2000, does not assist Mr Man – who seeks to uphold the validity of the purported service, and hence the validity of the consequential default judgment – because, with respect to the views of the learned judge who decided Penrose, it is difficult to see why the subjective knowledge of a plaintiff as to the last known address within the jurisdiction of the defendant intended to be served should suffice, which is what appears to be suggested in that case…”

69.I agree with the observation of Stone J. The Affirmation of Service merely recites the deponent’s belief without stating the basis of such a belief.

70.Moreover, as pointed out by Mr. Cheung, it is apparent that the Plaintiff had knowledge of D1’s address in the PRC.

71.The Plaintiff knew that D1 and D2 have, since 1997, set up a fabric business in Zhong Shan (para.11, P’s Affirmation). He was able to tell the background of the Civil Judgment between D1 and D2, and it is obvious that he had knowledge of D1’s address in Zhong Shan.

72.Also, a simple Land Search would have revealed that the Cheung Sha Wan Flat was sold to someone else in 2003. According to the Business Registration Search, the Firm has ceased to exist as from 2000.

73.I am not satisfied that the first time the Plaintiff learnt that D1 was outside the jurisdiction was August 2011 when he received D1’s Immigration Record.

74.In fact, it seems to me the Plaintiff should have applied under O.11, r.1 to serve the WS on D1 in the PRC.

75.The Plaintiff, in my view, could not simply assume that D1 was properly served the WS on the Cheung Sha Wan Flat and let time run its course.

76.I refer to the Court of Appeal decisin in Bank of China (Hong Kong) Ltd. v. Regal Link Investment Ltd. [2009] 3 HKLRD 203 where

Yuen JA held that:

“the rules of court are clear that to make a person outside the jurisdiction amenable to the court of Hong Kong, leave to issue a writ for service out is required under Order 6 r.7 RHC, and leave to serve that writ out is required under Order 11 r.1 RHC. That had not been done, the Bank says simply because it did not know the Appellant had emigrated. However the fact remains that the writ in each of the actions, quite apart from being lapsed for service, is not valid for service out and no application has been made for leave to serve out.”

“Could these requirements under Order 6 r.7 and Order 11 r.1 have been circumvented by an argument that the failure was only an irregularity which could be cured under Order 2 r.1 RHC, and then for actual service out to be dispensed with by an order made under the inherent jurisdiction of the court? In my view we must first consider the judgment of the English Court of Appeal in Leal, a case which the learned judge did not have the opportunity to consider.”

77.Following Slade LJ said in Leal,Yuen JA held that if a party “cannot properly enter through the front door of O.6 r.8 [to renew a writ], he should not be allowed to enter through the back door of O.2 r.1"

78.Although Regal Link deals specifically with O.11, r.1(1), I am of the view that the test remains that one cannot enter through the back door of O.2, r.1 if he cannot enter through the front door of O.6, r.8.

79.I find that the Plaintiff has failed to show good reason for the renewal of the WS nor can he give satisfactory explanation for his failure to apply for renewal before the validity of the WS expired.

Stage Two: Balance of Prejudice/Hardship

80.In the light of my finding on “good reason and satisfactory explanation” above, it is not necessary for me to go to the second stage.

81.It is common ground that a limitation defence is available to D1. In this regard, Mr. Lee submits that the Plaintiff would be shut out of a meritorious claim if I exercised my discretion in D1’s favour.

82.Hardship to the applicant if the extension is disallowed is not a substitute for good reason: sub-paragraph 9, 6/8/3, White Book.

83.On the other hand, D1 would be deprived of a limitation defence by a renewal of the WS.

84.I would exercise my discretion in D1’s favour in the second stage.

Exceptional Circumstances

85.For the sake of completeness, I should decide whether there are exceptional circumstances as in Chen Jianren which warrant the exercise of discretion in the Plaintiff’s favour.

86.I agree with Mr. Cheung’s interpertation that the “exceptional circumstances” mentioned by Deputy Judge Carlson must mean:-

(a)  the plaintiff had made perfectly good and reasonable efforts to serve the defendant; and

(b)  there is no limitation defence available to the defendant of which he might he deprived of by a renewal of the writ. 

87.I should also add that the plaintiff in Chen Jianren had assumed that it had effected good service at four addresses, two of which were the defendant’s business addresses and one of which was the address that he had provided when he signed the guarantees. 

88.The Plaintiff did not even come close to what the plaintiff in Chen Jianren had done. D1 was merely served on the Cheung Sha Wan Flat by reason of subjective knowledge on the part of the Plaintiff without verification, when he clearly had knowledge (or at least suspicion) that D1 might be out of the jurisdiction.

89.In the light of what I have decided under “good reason and satisfactory explanation”, I find that the Plaintiff has not made “perfectly good and reasonable efforts” to serve the WS on D1.

90.Regarding the issue on limitation, the fact that the plaintiff in Chen Jianren could still serve a fresh writ on the defendant is an important factor for the Court to exercise its discretion in favour of the plaintiff. There is no point to disallow the renewal of writ if he could still serve a new writ on the defendant.

91.As conceded by Mr. Lee, the limitation defence is available to D1 which he will be deprived of by renewal of the WS.

92.I am of the view that Chen Jianren is distingusiable on facts.

Conclusion

93.I conclude that the Plaintiff has failed to show good reason for the renewal of the WS and falied to provide a satisfactory explanation for his failure to apply for renewal before the validity of the WS expired on 13 October 2010.

94.I further conclude that there are no exceptional circumstances which warrants the exercise of discretion in the Plaintiff’s favour.

Order

95.I order that the Plaintiff's Present Summons be dismissed.

96.I also order costs nisi to D1, with cerificate for counsel, to be taxed if not agreed.

97.I thank you Counsels for their assistance.

Mr. Paul T.T. Lee instructed by Messrs. Yung Yu Yuen & Co. for the Plaintiff

Mr. Kam Cheung instructed by Messrs. Winnie Leung & Co. for the 1^st named Defendant

Please refer to HCMP185/2012 for the relevant appeal(s) to the Court of Appeal.