伍敬生 對 梁佩霞

On 11 September 2026, Deputy District Judge Lam Suet-ying handed down judgment in DCCJ 2731/2021 (Ng King-sang v Leung Pui-ha), allowing the plaintiff's appeal in part against orders made by Master Cheung on 29 January 2026. The plaintiff, a litigant-in-person, had originally sued the owner and occupant of the flat above his (the upper flat at 1201 of Tsui Ping North Estate) for water leakage damage. Ms Yeung of counsel, instructed by Messrs Li Shuk-ping & Co., acted for the successful first defendant.

Background and procedural history

The plaintiff issued the writ in June 2021 and had its validity extended four times, finally to 10 March 2025. The first defendant had attended the extension hearing on 11 February 2025 and was personally aware of the proceedings. The plaintiff posted the writ and statement of claim by registered post on 25 February 2025; the postman attempted delivery on 27 February 2025 and left a collection card in the first defendant's letterbox, but did not leave the actual document. The first defendant collected the mail from the post office only on 12 March 2025, after the writ had expired. She filed her acknowledgement of service on 25 March 2025 through solicitors, indicating an intention to defend.

The plaintiff applied for judgment in default on 9 April 2025, contending that service was deemed effective under Order 10 r 1(3)(a) of the District Court Rules on the seventh day after the collection card was placed in the letterbox. The application generated four hearings before masters and eight affidavits before it was finally disposed of by Master Cheung on 19 January 2026.

Holdings

The court held that (1) the plaintiff could not rely on the deeming provision in Order 10 r 1(3)(a): the postman only placed the collection card, not the writ itself, in the letterbox, so the seven-day fiction was inapplicable (§52); (2) in any event, the mail tracking record was conclusive evidence rebutting the presumption that service occurred seven days after the card was dropped, and the first defendant's solicitor's acknowledgement under Order 10 r 1(4) treated service as having taken place on 12 March 2025 (§53); (3) even if the acknowledgement had been late, non-compliance with the Rules is an irregularity under Order 2 r 1(1) and cannot of itself lead to judgment in default where the defendant has in fact filed an acknowledgement and indicated an intention to defend (§59-61); and (4) the master's refusal to enter judgment was therefore correct and that ground of appeal failed.

On costs, the court held that (a) the master's costs order of HK$45,000 was too high because the first defendant's conduct, particularly her failure to file and serve her opposition affidavit before the 11 June 2025 hearing, contributed materially to the delay, and the plaintiff's liability was reduced to 60%, yielding HK$27,000 (§65-66); (b) the master's no-order on costs in respect of the acknowledgement-of-service extension application was within the master's discretion and was upheld (§67); (c) the master's grant of an extension of time for filing the defence was correct (§68); and (d) the master's no-order on costs in respect of the defence extension application was wrong in principle because a party seeking an indulgence generally bears the other side's costs, and the first defendant was ordered to pay HK$1,000 (§69-74).

Result

The plaintiff succeeded on the two costs appeals and failed on all other grounds. The first defendant's costs on the aborted judgment application were reduced to HK$27,000, and she was ordered to pay HK$1,000 for the defence extension. No order was made as to the costs of the appeal itself, on a temporary basis that will become absolute in 14 days unless either party applies to vary.

Why it matters

Practitioners handling default judgment applications must verify that the actual document (not just a collection card or notice) was left at the defendant's address before invoking the Order 10 r 1(3)(a) deeming provision. Where a defendant has filed an acknowledgement of service and indicated an intention to defend, applications for judgment in default on service grounds alone are likely to fail, and litigants-in-person who persist with such applications risk adverse costs orders reflecting the opposing party's conduct that caused the delay.