THE CHINESE CULTURAL STUDIES ASSOCIATION formerly known as THE CHINESE CULTURAL STUDIES ASSOCIATION LTD v. CHEUNG LAI NGAN AND ANOTHER

DCCJ 431/2023

[2023] HKDC 930

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 431 OF 2023

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DECISION

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(A) The application

1.  This is an application made by the plaintiff under O 14 r 1 Rules of the District Court (Cap 336H) (“RDC”) for summary judgment against the two defendants.

2.  The plaintiff issued the Writ of Summons indorsed with a statement of claim on 6 February 2023. Both defendants had neither acknowledged service of the writ endorse with the statement of claim, nor had they given any notice of intention to defend the action.

(B) The plaintiff’s pleaded case

3.  The plaintiff’s case is that at all material times it was and is the registered owner of the premises known as Flat A, 1^st Floor, Fok Kwan Building, Nos 4, 6, 6A, 8 & 10 Boundary Street, Kowloon, Hong Kong (“the Plaintiff’s Premises”). The 1^st and 2^nd defendants were and are the registered owners of the premises known as Flat B, 2^nd Floor, Fok Kwan Building, Nos 4, 6, 6A, 8 & 10 Boundary Street, Kowloon, Hong Kong (“the Defendants’ Premises”) which situated directly above the Plaintiff’s Premises.

4.  The plaintiff pleaded that in or about October 2021, water seepage was found from the Defendants’ Premises to the ceiling of the living room of the Plaintiff’s Premises. The plaintiff instructed its expert to conduct water seepage test. The plaintiff’s expert inferred that the water conservancy in the Defendants’ Premises were defective which caused the water seepage to the Plaintiff’s Premises.

5.  The plaintiff sued that defendants for negligence and nuisance. The plaintiff asked for an injunction order, damages to be assessed and etc.

(C) Principle of Summary Judgment

6.  According to O 14 r 1 RDC, it is expressly provided that:-

“(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.”

7.  Hence, before a plaintiff may invoke the procedure of summary judgment, it is a pre-condition that the defendant has given notice of intention to defend the action.

8.  According to Hong Kong Civil Procedure 2023, Vol 1, at paragraph 14/1/4, it is stated that:-

“This is a preliminary necessity to applying for summary judgment under O.14. The words of r.1 preclude an application under O.14 before the defendant has acknowledged service of the writ and stated in his acknowledgment that he intends to contest the proceedings, i.e. has given notice of intention to defend. In the absence of any indication by a defendant that the plaintiff’s claim is contested, there is no need to assess whether the defendant has shown that there is an issue to be tried. If there is no acknowledgment of service or the acknowledgment does not state that the defendant intends to contest the proceedings, the O.14 machinery is not suitable: Sum Chi Chung v Tsang Kwok Hung [2022] HKCFI 166, [20]-[26]. Instead, depending on the nature of relief sought, judgment in default of notice of intention to defend or in default of defence may be entered under O.13. As to the meaning of “notice of intention to defend”, see O.1 r.4(1).” (at p 343)

9.  In the present case, the defendants had neither acknowledged service of the writ, nor had they given notice of intention to defend.

10.  The plaintiff sought to argue that, pursuant to O 13 r 6(1) of RDC, the plaintiff may proceed with the action, including applying for summary judgment, as if the defendant had given notice of intention to defend. O 13 r 6(1) of RDC provides that:-

“Other Claims (O.13 r.6)

1. Where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.”

11.  I do not accept the plaintiff’s contention that O 13 r 6(1) RDC operates to allow a plaintiff to apply for summary judgment by treating the defendant as having given the notice of intention to defend for the purpose of O 14 r 1 RDC.

12.  Order 13 governs the procedures for applying default judgment. With respect to claims other than those specified in O 13 rr 1 to 4, O 13 r 6 provides that if any defendant fails to give notice of intention to defend, the plaintiff may proceed with the action as if that defendant had given notice of intention to defend. Hence, a plaintiff may then apply for default judgment for the defendant's default in filing and serving his defence or the plaintiff may proceed to trial.

13.  O 14 r 1 RDC clearly states that before a plaintiff can invoke an application for summary judgment, the defendant has to acknowledge service of the writ and has given the notice of intention to defend. Whether or not a defendant has acknowledged service of the writ and has given the notice of intention to defend is a matter of fact and it is a factual and legal requirement. O 14 r 1 does not contain an express provision to the effect that the abovesaid factual and legal requirement can be dispensed with by operation of any other provisions in the RDC, including O 13 r 6 RDC.

(D) Disposition

14.  For the above reasons, the plaintiff’s contention is rejected. The plaintiff has not made out a case that is suitable for summary judgment. Hence, the plaintiff’s summons is dismissed.

15.  The defendants have never appeared in these proceedings. They had neither acknowledged service of the writ, nor had they given notice of intention to defend. Hence, there be no order as to costs.