DCCJ 3463/2018
[2021] HKDC 478
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3463 OF 2018
________________________
BETWEEN
NG CHUN SANG
1st Plaintiff
also known as
NG CHUN SUNG (吳春生)
NG MA SANG (吳馬生)
2nd Plaintiff
and
Persons in occupation of Lot No. 544 and The Remaining Portion Of Lot No. 539 both in Demarcation District No. 77
1st Defendant
WANG HUIXIU SANDY (王惠秀)
2nd Defendant
________________________
Before: His Honour Judge Kent Yee (paper disposal)
Dates of Written Submissions:
3 and 5 February 2021 and 4 March 2021 (the 1st and 2nd plaintiffs)
4 and 25 February 2021 (the 2nd defendant)
Date of Decision:
21 April 2021
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D E C I S I O N
________________________
Introduction
1. The 2nd defendant has taken out two summonses since my decision on the plaintiffs’ summary judgment and striking out applications was handed down on 5 August 2020 (“the Decision ”). First, by summons dated 7 December 2020 (“the Stay of Execution Summons ”) taken out in person, the 2nd defendant applies for a stay of execution of the order made pursuant to the Decision (“the Order ”). The other one is her application to set aside the Order by summons dated 2 February 2021 (“the Setting Aside Summons ”) taken out by her present solicitors on her behalf.
2. I have indicated to the parties that this court is minded to deal with the two summonses by way of paper disposal with an interim stay of execution of the Order. Both parties agree to this course and Mr So, for the plaintiffs, and Mr Lam, for the 2nd defendant, have lodged with this court their respective written submissions.
3. In this decision, I shall adopt the abbreviations used in the Decision.
4. By the Order, this court acceded to the summary judgment application against the 2nd defendant in respect of the plaintiffs’ claim for, among other things, vacant possession of the Lands and the striking-out application to strike out the 2nd defendant’s counterclaim for, among other things, a declaration that she has obtained a possessory title to a part of Lot 544 in the midst of the Lands (“the Part ”) based on her plea of adverse possession. She claims to have been in possession of the Part since 2005.
5. At the hearing of the plaintiffs’ applications on 5 August 2020, the 2nd defendant did not appear. This court was satisfied by the affirmations of service that the 2nd defendant had sufficient notice of the hearing and merely chose not to be present. Thus, this court proceeded to hear the applications in the absence of the 2nd defendant and eventually ruled against her.
6. For her setting aside application, the 2nd defendant principally relies on the allegedly bad service of the documents relating to the plaintiffs’ applications and the strength of her plea of adverse possession of the Part.
7. The setting aside application is made pursuant to O.14 r.11, Rules of the District Court. It is not disputed that the test applicable to an application to set aside a default judgment equally applies to this application: Chekiang First Bank Ltd v Ng Chun Hing Benjamin (unreported, HCA3474/2000, 12.12.2001).
Bad service?
8. The 2nd defendant now alleges that she only came to have knowledge of the plaintiffs’ applications in late November 2020 when the plaintiffs began to enforce the Order. Prior to that, she had not received any documents relating to the plaintiffs’ applications.
9. Therefore, it is necessary for me to scrutinise the evidence of service of the relevant documents adduced by the plaintiffs. Before doing so, I should first outline the relevant background matters.
10. This action concerns the Lands consisting of two lots of land in the New Territories. The 2nd defendant is in occupation of the Part located in a small part of one of the lots, i.e. Lot 544 and there are other structures on the lot.
11. First, in the Defence and Counterclaim filed by the 2nd defendant, the 2nd defendant pleads that she has resided at the Part with her family since 2005.
12. Then, in her affirmation filed in opposition to the plaintiffs’ application for interlocutory injunction dated 27 November 2018, the 2nd defendant made it clear that she had occupied the Part, which is about 1/3 of Lot 544.
13. In the Affirmation of Chan Tat Wing filed by the plaintiffs, Mr Chan gave his expert evidence and confirmed that there are other structures erected on Lot No.544 in 2018.
14. In the 4th Affirmation of the 2nd defendant, she explained that her former solicitors on 13 March 2020 filed a Notice to Act in Person on her behalf. She has just found out that in the Notice, her address was wrongly typed as Lot No.44 (“the Wrong Address ”) instead of Lot No.544.
15. Now I turn to the service evidence of the plaintiffs. In the 4th Affirmation of Lau Nga Ting dated 17 June 2020, she deposed to three services of the summons and the supporting affirmations in respect of the summary judgment application (“the Documents ”). First, she went to a room in Lot No.544 and put the Documents underneath the door of the room (“the Door ”). She exhibited a photograph of the Door (“the Photo ”). An unknown male told her that the 2nd defendant lived in that room. The Documents have not been returned to the office of the plaintiffs’ solicitors.
16. Secondly, on 9 June 2020, she sent a copy of the Documents to the 2nd defendant by ordinary post in a sealed envelope addressed to the Lands. Again, the said documents have not been returned to the office of plaintiffs’ solicitors.
17. Lastly, Ms Lau sent to the 2nd defendant another set of the Documents by ordinary post in a sealed envelope addressed to the Wrong Address.
18. In the 6th Affirmation of Lau Nga Ting, Ms Lau deposed to the fact that the envelope posted to the Wrong Address was returned to the office of the plaintiffs’ solicitors and it was marked “incomplete address/no such address”.
19. On the other hand, she confirmed that the other two sets of the Documents purportedly sent to the 2nd defendant have not been returned and so she believes that they have been apparently received by the 2nd defendant.
20. In the Affirmation of Lan Tao, Ms Lan affirmed that on 13 July 2020, she by hand served a draft order of this court containing the hearing date of the plaintiffs’ applications on the 2nd defendant by putting the draft order inside underneath the Door.
21. On 23 July 2020, Ms Lan by the same method served the summons for the striking out application on the 2nd defendant. She exhibited a photograph of the Door which is similar to the Photo.
22. The 2nd defendant has not responded to the two applications at all, let alone filing any evidence in opposition. She alleges that she did not receive any documents from the plaintiffs in relation to their applications notwithstanding all the foregoing service attempts.
23. In support of her application, the 2nd defendant filed the Affirmation of Lai Han Zhen. Ms Lai rented a house on Lot No.545 in May 2020 and became a neighbour of the 2nd defendant. She does not know the 2nd defendant personally.
24. Ms Lai recounted that on 5 June 2020, she found a bundle of documents near the door of her house. She just threw away those documents in the belief that they had been wrongly delivered to her house.
25. She had a similar experience on two occasions in July 2020. Again she threw away those documents which she believed to be wrong delivery.
26. Ms Lai was shown the Photo. She confirmed that the door depicted therein, i.e. the Door, is the front door of her house.
27. On the other hand, the 2nd defendant referred to a photograph showing a different door which she claims to be hers. The photograph was exhibited to her affirmation previously filed marked as WHS-5.
28. By the letter dated 19 February 2021, the plaintiffs through their solicitors indicated that they would not file any affirmations in reply to the affirmations of the 2nd defendant and Ms Lai. Further, the plaintiffs have not applied for cross-examination of either the 2nd defendant or Ms Lai on their affirmations.
29. The upshot is that the evidence of the 2nd defendant and Ms Lai is not rebutted by any contrary evidence. Despite the criticisms of her evidence by Mr So, I accept their evidence and am persuaded that the 2nd defendant had not received any of the relevant documents from the plaintiffs prior to the hearing on 5 August 2020 for the following reasons.
30. Firstly, the personal service by putting the documents through the Door cannot be deemed good service. I accept the unchallenged evidence that the Door does not belong to the 2nd defendant. Indeed, it leads to the house of Ms Lai, which is not erected on Lot No.544 at all.
31. Secondly, the postal delivery of the Documents to the Lands cannot be good service. The Part only forms part of Lot No.544 and there are other structures in the same lot. The Lands alone cannot possibly be a proper address for service.
32. Lastly, the plaintiffs cannot shift the blame to the 2nd defendant in reliance of the Wrong Address. It must be clear that the subject matter of this action is Lot No.544. It is obvious that the Wrong Address is unreliable and cannot be a proper address for service.
33. In the premises, I find that there was no good service of the documents relating to the plaintiffs’ applications. The 2nd defendant had no knowledge of the hearing on 5 August 2020. It is trite that a defendant is entitled ex debito justitae to have a judgment entered irregularly set aside. Accordingly, the setting aside application of the 2nd defendant must be granted.
34. Mr So nevertheless invites this court to consider the merits of the purported defence and submits that it should be the focus notwithstanding the technicalities. He prays in aid the Chekiang First Bank Ltd case and Premier Fashion Wares Ltd v Chow Cheuk Man [1994] 1 HKLR 377. I cannot agree with him and refuse his invitation.
35. As rightly pointed out by Mr Lam, the said two authorities involved regular judgements and as such the merits of the purported defence must be examined. They are no authorities to support his submission that this court should also determine the merits of the defence in case of an irregular judgment.
36. Lastly, I refuse to accept Mr So’s suggestion that the 2nd defendant should be given conditional leave to defend only in the event that the Order is to be set aside. There is simply no basis for me to do so.
Conclusion and order
37. For the reasons given, the Order must be set aside. The Stay of Execution Summons and the Setting Aside Summons should be granted. Should the address of the solicitors of the 2nd defendant cease to be a valid address for service, the 2nd defendant must promptly inform the plaintiffs of her new address in writing.
38. Costs should follow the event. I have studied the Statement of Costs lodged by the solicitors of the 2nd defendant. I would adopt a broad-brush approach only and I do not intend to embark on a mini-taxation.
39. I find that the charges of the solicitors have been hugely inflated and for simple applications like this, HK$50,000 (all inclusive) would be a reasonable amount in my view. On the other hand, the counsel fee charged is on the very high side too and I would only allow HK$25,000.
40. Thus, I make a cost order nisi on the two Summonses of the 2nd defendant that the costs of the 2nd defendant, summarily assessed at HK$75,000, should be paid by the plaintiffs to the 2nd defendant forthwith.
41. It remains for me to thank both Mr So and Mr Lam for their assistance in this matter.
Mr Simon So Shun-yan instructed by Chan & Associates, for the 1st and 2nd plaintiffs
Mr Solomon Lam instructed by KCL & Partners for the 2nd defendant