SZETO KWOK HUNG ROQUE v. SZETO KWOK KWONG BERNARD AND OTHERS

HCMP 2596/2017

[2023] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

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D E C I S I O N

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1.  This is the defendants’ (“Ds”) application by summons of 4 May 2023 seeking principally an order that the perceived irregularity arising out of their failure and inability to serve upon the plaintiff (“P”) certain specified documents (the “Documents”) in relation to the Taxation Proceedings (both defined below) against P be cured.

2.  For background of the present action, I refer to the several Decisions which I have handed down herein.

3.  For reasons set out in my Decision handed down on 16 September 2021[1], I dismissed P’s Summons and P’s Further Summons with costs against him on an indemnity basis.

4.  Relying on that costs order, Ds subsequently commenced taxation proceedings against P (i.e. the Taxation Proceedings).

5.  For that purpose, Ds sought to serve upon P the Documents, comprising the Notice of Commencement of Taxation dated 22 April 2022, the Bill of Costs, the Application to Set a Bill Down for Taxation, the Notice of Taxation Call Over Hearing, and the Allocatur.

6.  The Documents were served by post upon P’s address for service stated in his Notice of Change of Address For Service dated 5 March 2021 (the “Stated Address”). There has been no further change on record after that.

7.  The Stated Address is that of a serviced apartment.

8.  The envelopes containing the Documents posted to the Stated Address had in fact all been returned. P had checked out of the Stated Address by the time when the Documents were posted to that address.

9.  According to the 1^st affirmation of Cheung Kwok Choi (solicitors for Ds) filed in support of the present application, his firm was not aware of those return until late September 2022. That was because the returned letters were all allowed to sit on the reception counter, and that the solicitors having the conduct of the case had not been alerted to that.

10.  That was a fundamental error which ought not to have been permitted to happen. Ds’ solicitors accepted responsibilities for that.

11.  The inanity of the error apart, Mr Cheung says that his firm had at the time honestly thought that service of the Documents had been validly effected upon P, had caused affirmations of service to be filed to that effect, and had proceeded with the Taxation Proceedings to their fruition.

12.  Upon knowledge of the error, the present summons was taken out.

13.  As I have said, the error ought not to have been permitted to happen. But despite that, and for the following reasons, I am of the view that no irregularity had occurred, and the present application is not required:

(a)  P is the plaintiff in the present action;

(b)  As such P has to provide address for service in accordance with O.6 r.5;

(c)  He changed his address for service to the Stated Address by filing his Notice of Change of Address;

(d)  He has since checked out of the Stated Address. He must know that that address would no longer be valid for service. He has however failed to update it;

(e)  In my view, since the time P moved out of the Stated Address, and upon his failure to provide a new and valid address for service, he became a plaintiff with no address for service;

(f)  Upon that happening, O.65 r.9 became applicable to him. The Documents, which otherwise did not require personal service, were no longer required to be served upon him;

(g)  The above analysis equally applies to the present summons and Mr Cheung’s affirmation in support.

14.  To avoid any unnecessary argument in the future, I order that the service of the present summons and Mr Cheung’s affirmation in support be dispensed with. Having done so, I make no order in respect of the summons, on the basis that the relief sought is not necessary. I also make no order as to costs.