Fung Shek Wa v. Chang Lai Yue

HCA 2258/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2258 OF 2013

BETWEEN

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D E C I S I O N

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The application

1.This is the plaintiff’s application for default judgment pursuant to Order 19, rule 7 of RHC.

2.The plaintiff’s claim against the defendant is, inter alia, a declaration that by virtue of section 17 of the Limitation Ordinance, Cap.347, the defendant’s title to any part of the Lots (as defined in the Amended Statement of Claim) had been extinguished and the plaintiff has acquired all the right, title and interest including the right to exclusive physical occupation of and in the Lots.[1]

3.Mr. Chan Chun Sang, counsel acts for the plaintiff.  The defendant is absent today.

Service of the Amended Statement of Claim

4.The plaintiff has attempted to prove service of the Amended Statement of Claim by way of the 2^nd affirmation of Lee Ka Hing, a clerk to Messrs. T K Tsui & Co., the solicitors acting for the plaintiff.[2]

5.In the said affirmation, Mr. Lee affirmed that he served the Amended Statement of Claim and the covering letter dated 4 March 2014 on the defendant by inserting the same into the letter box at 3^rd floor, No. 5 Yuen Ngai Street, Kowloon, Hong Kong, the last known address of the defendant.

6.The last known address of the defendant can be found in exhibit 3 of Mr. Lee’s first affirmation.  Together with the memorial for the registration of the Lot with the District Land Office, there is a letter dated 1 April 2010 from the Planning Department of the Government to the defendant granting permission to the defendant for the development of temporary open storage of motorcycles for sale for one year under section 16 of the Ordinance on 5 March 2010.

7.There seems to be no reason for the defendant to show no interest in the Lots whilst she had obtained a permit as an open storage of motorcycles for sale.

8.At paragraph 4 of his 2^nd affirmation, he stated: “I confirm that in the Plaintiff’s opinion, the Amended Statement of Claim as stated in paragraph (3) herein will have come to the knowledge of the abovenamed Defendant within 7 days thereafter.”

Reasons for refusal

9.The plaintiff relies upon the following grounds for this application:

a. The Amended Statement of Claim has been duly served on the defendant;

b. The defendant has failed to file any defence to the plaintiff’s Amended Statement of Claim; and

c. The plaintiff is entitled to the declaration, based upon the pleadings of the plaintiff, without the court hearing any evidence from the plaintiff to prove his case, relying upon Order 19 rule 7 RHC and reference to Hong Kong Civil Procedure Vol. 1, 19/7/11[3].

10.Having considered the plaintiff’s submissions, I refuse to grant the order for the following reasons.

11.It is accepted that service of the Amended Statement of Claim has been proved.

12.Mr. Chan agrees that the Court’s power to grant judgment under RHC O.19 r.7 is discretionary and not mandatory.  Hong Kong Civil Procedure Vol. 1, 19/7/13.

13.The plaintiff now claims possessory title of the Lots over the defendant.  The Court will be reluctant to grant the order without hearing evidence from the plaintiff to prove its case as decided in Top One International (China) Property Group Company Limited & Another v Top One Property Group Limited & Others HCA1244/2009 (unrep. Fok J. (as he then was) 9 December 2010) at paragraphs 83 & 85:

“83. In my view, notwithstanding Mr Lam’s persuasive submissions, it would not be appropriate to grant the declaratory relief sought by way of default judgment. In the absence of a judgment reached after hearing evidence, a declaration could be based only on unproved allegations and the court ought not to declare as fact that which might not have proved to be such, had the facts been investigated: Wallersteiner v Moir [1974] 1 WLR 991 per Buckley LJ at p.1029 and Patten v Burke Publishing Co. Ltd [1991] 1 WLR 541 per Millett J (as he then was) at p.544A.

85. In the circumstances, I decline to grant the declaratory relief sought by the plaintiffs by way of default judgment.  This does not, of course, mean that the plaintiffs cannot obtain the declarations, it merely means that they will have to prove their entitlement to them after adducing evidence in the usual way.”

14.Since there is evidence to show that the defendant had shown interest in the Lots in 2010, apart from the possible legal effects of such action over the property in question, which is uncertain for the time being, there is simply no reason that the defendant suddenly abandons the entitlement to the Lots by her absence today.  I consider that the plaintiff should prove his case in the usual way.

15.In the circumstances, I refuse the plaintiff’s application.

Costs & Order

16.As to the costs of this application, including the hearing today, there will no order as to costs as the defendant is absent today.

(K.W. Lung) Registrar, High Court

Mr. Chan Chun Sang, instructed by T.K. Tsui & Co., for the plaintiff

The defendant was not represented and did not appear