CHAN KWAI HUNG v. FU LAM SANG

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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DECISION

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1. This is an appeal against a decision of Master Boa given on 27th June 1984 in which he declined to accede to an application that an order made by Master Clay on 29th February 1984 giving judgment to the plaintiff in this action be set aside and that the defendant be at liberty to defend.

2. The action was commenced by originating summons. It claims possession of certain premises pursuant to a Deed of Mortgage. At the hearing before Master Clay on 29th February, proof of service was established by affirmation as was the claim. The defendant did not appear on that occasion nor had he acknowledged the proceedings in any way previously. Indeed Master Clay adjourned once so that notice might be served upon the occupants of the premises in question. When the Master was satisfied that it had been done, judgment was duly entered. Towards the end of June, having received a visit from the bailiff, the defendant for the first time consulted solicitors and it was they who brought the matter before Master Boa who, as I say, declined to interfere with the order made by Master Clay.

3. The first matter which I have had to decide is whether or not there should be leave to appeal out of time. The notice was one day late. The application is supported by an affirmation from the plaintiff's solicitor who explains that he had misinterpreted the rules. He thought that both the Saturday and the Sunday intervening between the hearing and the last day for the notice were to be subtracted from the time allowed whereas only the Sunday was not to count and it was by reason of that mistake that the notice comes to be served out of time. Well, in the light of that explanation, I readily exercise my discretion to give leave.

4. I go on to consider the merits of the appeal. The defendant says in his affirmation that he is not the signatory to the Mortgage Deed. He explains how he allowed the documents and title relating to his premises out of his possession and he suspects his brother of having forged his signature. He explains also that the reason why he did not respond to the various documents served upon him in these proceedings was that he had been assured throughout by his brother that they were matters to which he needed to pay no attention as the matter was to be dealt with by his brother directly with the plaintiff. Further, he says that he is quite unable to read English and that the substance of the originating summons and indeed other documents was in English and that it teas always to his brother that he referred and it was on those occasions that he was reassured in the way that I have mentioned. It was for that reason that he neither acknowledged service of the originating summons nor attended upon its hearing. Well, as Miss Ma points out that it is easy enough to say and I accept that it may not be true; but where a defendant puts forward an explanation which may be true as to why he does not either acknowledge service, put in a defence or attend on the hearing, a court should and will hesitate long before denying that defendant an opportunity to be heard on the merits where the defence put forward, if trues, would be an answer to the claim. So, though with some hesitation, I do differ from the learned Master in his approach, and in the exercise of my discretion I allow this appeal and give the defendant leave to defend. Let me say at once that it is not suggested, nor could it be, that tile plaintiff is inn any way at fault. Nor, may I emphasize, is Miss Ma who has had the conduct of this action on behalf of the plaintiff from the very beginning to be criticized in any way at all; and I stress that because Miss Ma seems to taken it very much to heart that I have indicated that this appeal is to be allowed.

5. With the consent of Miss Lau and without any opposition from Miss Ma, I now proceed to give directions so that the matter may proceed with expedition. It seems to me from the issues raised in the defendant's affirmation that it is appropriate that this action should be heard as though it had been begun by writ and that is how I shall direct, it should continue. I direct that the originating summons and the affirmation in support shall stand as Writ and Statement of Claim. I direct that the defendant serve his defence within 7 days and that thereafter time limits as required by the Rules are to apply.

6. I come to the question of costs. There is absolutely no reason why the plaintiff should be burdened with the costs of the hearing before Master Clay or the hearing before Master Boa or with the costs of the execution which, I am told, was effected as late as yesterday. I order the defendant to pay those costs and in so far as it may be a necessary incident of my decision, I set aside the execution.  So far as the costs of today are concerned, I appreciate the force of the argument that costs should follow the event but here is a case where a defence has emerged late in the day and which may prove to be entirely without merit. In such circumstances, it would be wrong that the plaintiff should have to bear the costs of this hearing which have only come about by reason of the exercise of discretion by the Master in a certain way. Therefore, I order that the costs of today be costs in the cause.