MA YING FUI v. MA MAN FAI

HCA 995/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 995 OF 2008

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REASONS FOR DECISION

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Introduction

1.  At the end of the hearing on 3 June 2009:-

(a) the default judgment dated 3 December 2008 was set aside;

(b)    costs of the defendant’s application for setting aside the default judgment were awarded against the plaintiff in any event.

Below are:-

(1) the brief reasons for the above decision;

(2) the decision on the basis of taxation of the above costs.

Setting Aside Application

2.  The plaintiff commenced this action on 30 May 2008 claiming in short that he acquired title to the suit property (a piece of land in Tai Po) by way of adverse possession.  The plaintiff is the natural father of the defendant (the registered owner of the suit property).

3.  All the court documents were served on the defendant at an address in Shatin.

4.  The defendant having failed to give an acknowledgement of service of the writ, the plaintiff took out a summons on 7 November 2008 seeking default judgment to be entered.

5.  The plaintiff’s summons came before me on 3 December 2008.  At the end of the hearing, default judgment was entered against the defendant.

6.  On 29 April 2009, the defendant took out an application to have that judgment set aside with costs on an indemnity basis.

7.  The grounds in support of the defendant’s application were:-

(a) service of the writ was irregular because the defendant was not within the jurisdiction at the time of service;

(b)    in any event, there are merits in the defendant’s defence.

(a) Irregularity of Service

8.  It is undisputed the defendant was born and raised in London, UK, and that, since then (but until about 1992), the plaintiff resided together with the defendant in London.

9.  In the affirmation in support of the defendant’s application, the defendant narrates that he has all along been living in London except for the period from January to 21 May 2008 (shortly before the commencement of this action).  Other than a bare denial, the plaintiff did not adduce evidence to refute that.  There is also undisputed evidence the parties met and were briefly together in London and Scotland as late as in 2006.

10.  What aggravated the plaintiff’s position in relation to this aspect are these.

11.  The defendant’s London address should be well known to the plaintiff.  Yet, the plaintiff has not voluntarily disclosed such information.  Instead, it was boldly asserted in the affirmations of service that the Shatin address was the defendant’s:-

“usual place of abode”.

Judging from the relevant background (summarized above), that assertion cannot be correct.

12.  The court’s record shows that, during the hearing on 3 December 2008, the court specifically discussed the matter with the plaintiff’s legal representatives.  Questions regarding the parties’ relationship were raised; for example, whether the parties’ relationship was amicable, and whether the plaintiff’s occupation of the suit property was known to the defendant.  The impression given to the court was that very little was known about the defendant or his whereabouts.  The court was not informed about the matters set out in para. 8 and 9 above.

13.  In view of the matters aforesaid, I agree with the defendant service of process was irregular: see also Desirable International Fashions Ltd.(in Liquidation) v. Chiang Shi Chau [1997] 2 HKC 170; Deng Minghui v. Chau Shuk Ling Elaine [2007] 2 HKC 414; Sinokawa Investment (Holdings) Ltd. v. Li Chun [2006] 3 HKLRD 441.

(b) Meritorious Defence

14.  It is trite law the defendant must show his defence has merits, if the default judgment to be set aside is a regular judgment.

15.  The factual issues raised by the parties’ affirmations include:-

(1) whether the plaintiff has been looking after the suit property as the defendant’s agent;

(2) whether a Chinese letter apparently written by the plaintiff was a forged document.  The content of the said letter can amount to an acknowledgement by the plaintiff of the defendant’s title to the suit property;

(3) whether an English letter, admittedly written for the plaintiff, can amount to an acknowledgement of the defendant’s title to the suit property.

16.  There is no need for elaboration, suffice it to say that I find the merits of the defence are such as to justify the exercise of my discretion to set aside the default judgment.

Basis of Taxation

17.  The defendant claims that the plaintiff’s conduct warrants indemnity costs to be awarded against him.

18.  The plaintiff argues that the defendant was also at fault.  He explains that the Shatin address was used because it was the address used by the defendant in his own affirmation filed in a separate set of proceeding (commenced by the defendant to re-possess the suit property).

19.  Irrespective of the precise motive which caused the defendant to use the Shatin address, the fact remains the plaintiff should not have:-

(a) failed to disclose the full circumstances concerning the defendant’s background and whereabouts, including the particulars pertaining to his London address;

(b)    deposed that the Shatin address was the defendant’s “usual place of abode”.

20.  Bearing the above in mind, I agree with the defendant this is an appropriate case for the costs to be taxed on an indemnity basis.