MULTI RICH FAR EAST LTD v. HUI SO LING AND ANOTHER

HCA 2088/2018

[2019] HKCFI 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2088 OF 2018

______________

______________

______________

DECISION

______________

1.  This is the plaintiff’s (“P’) application by summons pursuant to Order 19, rule 7 for judgment against the defendants (“Ds”) in default of Notice of Intention to Defend and of Defence.

2.  The Writ herein was taken out on 7 September 2018.  According to P’s pleaded case, P has since 29 June 2017 become the legal and beneficial owner of certain properties within Shui Ning House at Nos 24 – 28 Shui Ning Street (“P’s Property”).  The 1^stdefendant (“D1”) also owned a unit within Shui Ning House (“D1’s Property”).  D1’s Property is adjacent to P’s Property.  D1 has allowed certain unauthorized and illegal structures (“alleged Illegal Structures”) to have been erected on the “Flatted Roofs” of Shui Ning House as an extension and forming part of D1’s Property.  D1’s Property has been occupied by the 2^nddefendants (“D2”).  The alleged Illegal Structures have trespassed onto P’s Property.  They have also caused nuisance, and their erection in breach of the Deed of Mutual Covenants. P therefore claims:

(a)   a declaration that Ds are not entitled to enter, use or occupy P’s Property or any part thereof;

(b)   an order against Ds to forthwith remove all the alleged Illegal Structures and deliver up vacant possession;

(c)   an injunction restraining Ds from entering, using or occupying P’s Property; and

(d)   damages to be assessed.

3.  I am concerned about whether the alleged Illegal Structures have been sufficiently defined on the face of pleadings.  They are pleaded in paragraph 4 of the Statement of Claim as including “inter alia, some metal fencing enclosure and projected metal canopy with concrete parapet wall extended to [P’s Property] from [D1’s Property].”  The descriptions are only inclusive, but not definitive.  I note further that the alleged Illegal Structures are only identified by a square hatched black on a plan attached to the Statement of Claim.  It provides at best only some indications as to the general location of the alleged Illegal Structures.  It does not tell the reader what and where the alleged Illegal Structures exactly are.  In any event, no dimensions have been provided thereon.  The plan is also specifically said to be “For the purpose of identification only”.

4.  The service of the Writ is in order.  Ds have failed to file any Notice of Intention to Defence. Nor have they filed any Defence.  P therefore took out the present summons.  It was taken out pursuant to Order 19, rule 7.  The service of the summons is also in order.

5.  Order 19, rule 7(1) provides as follows:

“ Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

6.  Although Order 19, rule 7(1) is expressed in mandatory terms, the rule is not mandatory but discretionary—see Hong Kong Civil Procedure 2019, §19/7/13.

7.  In the present case, a declaration is sought.  It is not the normal practice of the court to make a declaration without a trial—Hong Kong Civil Procedure 2019, §19/7/20.  There are exceptions to this practice,but P has made no effort in any attempt to establish any exception.

8.  Further, injunctions (both mandatory and prohibitory) are sought.  I repeat my concern about the identification of the alleged Illegal Structures. I am not satisfied that the Court should at this stage exercise its discretion and grant the injunctions sought.

9.  In the circumstances, I refuse the application.  I leave it to P to decide whether it wants to proceed to trial to prove its case.

10.  As Ds did not appear, I make no order as to costs.