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DCMP 3466/2017
[2018] HKDC 1131
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3466 OF 2017
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IN THE MATTER of the property known as ALL THOSE 45 equal undivided 202,883rd parts or shares of and in Tuen Mun Town Lot No 360 (Flat J on 11th Floor of Block 7, Yuet Wu Villa, No 2 Wu Sau Street, Tuen Mun, New Territories) (“the Property”)
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and |
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IN THE MATTER of a Second Mortgage dated 7th June 2016 and registered in the Land Registry by Memorial No 16061300300029 |
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IN THE MATTER of Section 2, 3 and 6 of the Partition Ordinance (Cap 352) and Order 31, Order 83A and Order 88 of the Rules of the District Court (Cap 336H) |
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BETWEEN
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KONEW CAPITAL INTERNATIONAL LIMITED |
Plaintiff |
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and
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LI KWOK PAN |
1st Defendant |
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SUNG FO YING |
2nd Defendant |
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| Before: His Honour Judge MK Liu in Chambers (Open to public) |
| Date of Hearing: 10 September 2018 |
| Date of Decision: 10 September 2018 |
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DECISION
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1. The plaintiff seeks final judgment against the defendants in this call-over hearing. The reliefs sought by the plaintiff in the originating summons filed herein (“the OS”) including an order for sale of a property jointly owned by the defendants. The defendants are absent in this hearing. The plaintiff says that it has proved its case against the defendants and asks for final judgment. I refuse to accede to the plaintiff’s request.
History of the proceedings
2. I would first set out the essential events in these proceedings.
3. On 15 December 2017, the plaintiff commenced these proceedings by issuing the OS.
4. On 13 July 2018, the plaintiff issued a notice of appointment to hear the OS (“the 1st Notice”), in which the plaintiff specified that the OS would be heard by a master on 15 August 2018. The plaintiff also specified in the 1st Notice that it would seek the reliefs set out in the OS against the defendants in that hearing.
5. On 15 August 2018, the defendants did not attend the hearing before a master. The plaintiff asked the master to adjourn the case before a judge in chambers for a call-over hearing with 15 minutes reserved.
6. On 21 August 2018, the plaintiff issued a notice of adjourned appointment to hear the OS (“the 2nd Notice”), in which the plaintiff mentioned that the case would be heard before me on 10 September 2018. Save the aforesaid, the contents of the 2nd Notice are same as the contents of the 1st Notice.
7. The plaintiff has adduced evidence to prove the service of the documents mentioned above.
8. On 28 August 2018, I issued a direction to the parties, by which I required the plaintiff to provide written directions which would be sought in the call-over hearing before me on 10 September 2018. On 4 September 2018, the plaintiff’s solicitors replied and said the following:-
(1) if the defendants attend the hearing before me and contest the proceedings, the plaintiff would seek directions for filing affidavit evidence and adjourning the case for arguments;
(2) if the defendants are absent in the hearing before me, the plaintiff would seek final judgment against the defendants.
9. Only the plaintiff’s solicitors attend this hearing and the defendants are absent.
No final judgment to the plaintiff in this hearing
10. I refuse to give final judgment to the plaintiff in this hearing for two reasons.
11. Firstly, if the plaintiff just wants directions for filing affidavit evidence and fixing a date for substantive hearing, the plaintiff should seek these directions in the hearing before the master on 15 August 2018. If the plaintiff wants to have a substantive hearing before a judge and seeks final judgment against the defendants in the hearing, the plaintiff should ask for such an appointment and give the court a realistic estimation of the length of the substantive hearing. The plaintiff simply asked nothing before the master on 15 August 2018, save and except fixing a 15-minute call-over hearing before a judge. With respect, this makes both the hearing before the master and the hearing before me meaningless.
12. On the one hand, the plaintiff did not seek directions for filing affidavit evidence and fixing a date for substantive hearing before the master, which is something that the plaintiff ought to do. On the other hand, the plaintiff should not try to obtain an early date before a judge by calling the hearing before a judge as a call-over hearing and saying that the length of the hearing would only be about 15 minutes. Regrettably, the plaintiff has done this. If the plaintiff intends to seek final judgment before a judge, the hearing before a judge would not be a call-over hearing, and realistically the length of the hearing would not be 15 minutes. The plaintiff would not be automatically entitled to final judgment if the defendants are absent. The plaintiff has to take the court through the evidence and make submissions on law to show that the plaintiff is entitled to have final judgment. Realistically, these cannot be done within 15 minutes.
13. In my view, what the plaintiff should do is to ask the master to give directions for filing affidavit evidence and fixing a substantive hearing of the OS before a judge with a realistic estimation of the length of the hearing. Thereafter, the plaintiff may prove its case in the substantive hearing. Unfortunately, the plaintiff has not done these.
14. What the plaintiff has done is unsatisfactory. I must not condone this practice. I therefore refuse to go into the merits of the plaintiff’s case today and would only give directions for filing affidavit evidence and fixing a substantive hearing of the OS before a judge.
15. There is a second reason for refusing to give final judgment to the plaintiff today. In accordance with the Rules of the District Court, Order 28 rule 2(1), a notice of an appointment to hear an originating summons shall be in Form No. 12 in Appendix A (“Form No. 12”). Both the 1st Notice and the 2nd Notice are different from Form No. 12, ie the following sentences in Form No. 12 are missing in both notices:-
“You may attend in person, or by your solicitor or counsel. If you fail to attend, such order will be made as the Court may think just and expedient.”
16. There is no satisfactory explanation as to why these sentences are omitted in both notices. In my view, this is an important omission. Coupling with the fact that the nature of this hearing specified in the master’s order is a call-over hearing, it would not be safe and prudent to turn this call-over hearing to a substantive hearing of the OS and give final judgment to the plaintiff here and now.
Disposition
17. I give the following directions:-
(1) Leave to the defendants to file and serve affidavits/affirmations in opposition to the OS within 28 days from the date of service of this order;
(2) Leave to the plaintiff to file and serve affidavits/affirmations in reply within 28 days thereafter;
(3) No further affidavit/affirmation shall be filed without leave of the court;
(4) The substantive hearing of the OS be fixed before a judge in court with 3 hours reserved.
18. The aforesaid directions should be sought in the hearing before the master. This hearing in fact is unnecessary. For the costs of this hearing, there should be no order as to costs.
Mr Brian Chung of Au Yeung, Lo & Chung Solicitors, for the plaintiff
The 1st defendant was not represented and did not appear
The 2nd defendant was not represented and did not appear
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