DE BEDIN & LEE LLP FORMERLY KNOWN AS DE BEDIN & LEE (A FIRM) v. BRUNO ATZORI

DCCJ 4720/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4720 OF 2016

-------------------------

-------------------------

---------------------

DECISION

----------------------

Introduction

1.  The plaintiff applied before me for a judgment against the defendant pursuant to Order 14 rule 1, Order 12 rule 6, Order 18 rule 19 and/or Order 41A rule 6 of the Rules of District Court (Cap 336H).  There are some procedural issues involved in the present application.  Before I deal with them, I shall set out the procedural background first.

Background

2.  The plaintiff, a firm of solicitors, issued a writ of summons on 16 October 2015 against the defendant, acting in person, whose last known address was Via Raffaello Sanzio 9, 13855 Valdengo (Bi), Italy, claiming a sum of HK$147,599.80 with interest thereon based on 6 invoices issued during the period from 30 July 2014 to 29 May 2015.  This sum, according to the plaintiff, is a sum it is entitled to for the legal services provided from about 5 June 2014 to about 15 May 2015, pursuant to an engagement letter dated 5 June 2014.  The writ was subsequently amended on 21 July 2016 because of the change of the plaintiff’s name.  This has no bearing in the present proceeding.

3.  An amended concurrent writ of summons was also issued.  Upon the plaintiff’s ex parte application, on 18 July 2016, Master S P Yip granted leave to serve the amended concurrent writ of summons on the plaintiff at the aforesaid last known address.  The learned Master also ordered that the time for acknowledgement of service of the amended concurrent writ be 28 days after the service of the amended concurrent writ.

4.  The amended concurrent writ was served on the defendant on 22 September 2016.  Thus, the defendant should file his acknowledgment of service on or before 20 October 2016.

5.  As always, a form of acknowledgement of service was enclosed with a writ. Towards the end of the form was the following usual guideline: -

“Where the defendant is acting in person, he must give residence OR, if he does not reside in Hong Kong, he must give an address in Hong Kong where communications for him should be sent…”

6.  This guideline is in line with Order 12 Rule 3(2)(a) of the Rules of District Court, which provides that: -

“Acknowledgment of service

3(2) An acknowledgement of service must specify

(a) In the case of a defendant acknowledging service in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him maybe delivered or sent ……

and where the defendant acknowledges service in person the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service…”

7.  On 25 October 2016, the District Court Registry received an acknowledgement of service by airmail posted by the defendant on 18 October 2016, expressing his intention to defend.  Enclose therewith was a “Statement of Defence” dated 18 October 2016.  On the upper left corner of the envelope was handwritten the defendant’s aforesaid last known address.  On the upper right corner was “Posteitaliane” with a barcode and “18.10.2016 10.25” below.

8.  In the acknowledgment of service, the defendant wrote: -

“BRUNO ATZORI [the defentant’s name]

c/o GIOTTO LTD

RM 902, 9Fl., BONHAM CENTER

78-85 BONHAM STRAND EAST

HONG KONG”

9.  The statement of defence was homemade in English and in Italian, in essence complaining about the quality of the services rendered by the plaintiff. It was signed apparently by the defendant, but was not endorsed with any statement of truth.  Nor has there been any statement of truth separately filed.

10.  On 4 January 2017, the plaintiff took out the present summons.  According to the affirmation of service by Leung Chung Ho, the summons, together with the supporting affirmation, was served on the defendant by leaving at the address written down in the acknowledgement of service and by ordinary post addressed to the aforesaid last known address in Italy.  On 5 January 2017, the plaintiff received a telephone call from one Mr Stefano Gianazaa, a director of Giotto Ltd, who confirmed to the plaintiff that the address was the care of address for the defendant, and informed the plaintiff that she was the defendant’s friend.

Procedural issues

11.  The procedural issues I have to deal with are: -

(1) Whether the summons was duly served;

(2) Whether the acknowledgement of service and/or the statement of defence should be struck out on the ground that the acknowledgment of service was received out of time, and then whether judgment should be entered, by virtue of Order 12 rule 6; and

(3) whether the statement of defence should be struck out on the ground of embarrassment and/or lack of particulars and/or lack of the statement of truth, and then whether judgment should be entered, pursuant to Order 18 rule 19 and/or Order 41A rule 6.

Whether the summons was duly served

12.  Whether or not the summons was duly served depends on whether the address for service written down in the acknowledgment of service was a valid one.  Order 12 Rule 3(4) provides that: -

“If… the Court is satisfied that any address specified in the acknowledgment of service is not genuine, the Court may on application by the plaintiff set aside the acknowledgment or order the defendant to give an address or, as the case may be, a genuine address for service and may in any case direct that the acknowledgment shall nevertheless have effect for the purpose of Order 10, rule 1(5) and Order 65 rule 9.”

13.  Here, this address was written down just above the guideline I set out in paragraph 8 above.  Further, as mentioned above, on 5 January 2017, one Mr Stefano Gianazza, a director of Giotto Ltd, called the plaintiff to confirm that the address was a care of address for the defendant.  I am satisfied that the address was a valid one for service and since there was no evidence to the contrary, Order 12 rule 3(4) was simply irrelevant.

14.  Thus, I conclude that the summons was duly served.

Whether the acknowledgement of service and/or the statement of defence should be struck out on the ground that the acknowledgment of service was received out of time

15.  For the second procedural issue, namely, whether the acknowledgement of service and/or the statement of defence should be struck out on the ground that the acknowledgment of service was received out of time, I do not think that the delay in acknowledging service would justify a striking out that would immediately lead to a final judgment against the defendant.  The defendant is a foreigner and acting in person.  He may well not understand the procedures.  In any event, I do not see that the delay in acknowledging service and filing the statement of defence has caused any such prejudice that would justify entering a final judgment, bearing in mind that the statement of defence was dated 18 October 2016, a date before the deadline of 20 October 2016.  Indeed, the defendant appeared to have posted the acknowledgement of service on 18 October 2016, as apparent from “18.10.2016” on the upper right corner of the envelope.  In the circumstances, I see it is appropriate to, and I do, grant leave to the defendant to file the acknowledgement of service.

Whether the statement of defence should be struck out on the ground of embarrassment and/or lack of particulars and/or lack of the statement of truth

16.  For the third procedural issue, namely, whether the statement of defence should be struck out on the ground of embarrassment and/or lack of particulars and/or lack of the statement of truth, while the statement of defence certainly could have been drafted far better than the present one especially if the defendant would be legally represented, I do not think that the statement of defence was so plainly and obviously bad that it ought to be struck out.  I can still ascertain the gist of the defence from the statement of defence, namely, defective quality of the services rendered.  The defendant may later provide particulars and evidence as he would think fit.  Lack of the particulars does not render the statement of defence here liable to be struck out.

17.  Similarly, although the statement of defence was not verified by a statement of truth, this irregularity certainly could be remedied by giving the defendant at least another chance, but not by striking it out right away.  In this regard, I note that in the pro forma listing questionnaire for CMC hearings, parties are required to confirm whether the pleadings have been verified by a statement of truth.  This means that it is envisaged that parties may not have signed any statement of truth even by the time of the CMC.  In the present case, suffice to say that absent any accepted evidence that the defendant deliberately flouted Order 41A and absent any good reasons, I would defer this matter to the CMC, if any.

Should I grant summary judgment?

18.  Notwithstanding my answers to the second and third procedural issues above, the summons was taken out pursuant to, inter alia, Order 14 rule 1.  The application was supported by the 3^rd affirmation of Morris Helen Alexandra, which, inter alia, verified the statement of claim and deposed to the plaintiff’s belief that the defendant did not have any arguable defence.

19.  The summons contained the usual warning that: -

“TAKE NOTICE that a party intending to oppose this application or to apply for a stay of execution should send to the plaintiff a copy of any affidavit intended to be used to reach the plaintiff not less than three days before the date of hearing above-mentioned.”

20.  The defendant has not filed any affirmation to oppose the application.  The defendant was also absent from the hearing today.

21.  That said, I have to be satisfied that the plaintiff’s claim is a valid one.  According to the amended statement of claim, the plaintiff rendered services, and 6 invoices were presented between 30 July 2014 and 29 May 2015.  Pursuant to clause 4 of the engagement letter, the fees would become due and payable upon presentation of the invoices, and the interest rate shall be equivalent to the judgment rate.  In the circumstances, I am satisfied that the plaintiff’s claim is valid.

Conclusion

22.  Therefore, I make the following orders: -

(1) Retrospective leave be granted to the defendant to file the acknowledgment of service received on 25 October 2016.

(2) There shall be a final judgment against the defendant for the sum of HK$147,599.80 with pre- and post-judgment interests thereon as per paragraphs 7, 8 and 9 of the draft order.

(3) Costs of this application and the action be to the plaintiff, summarily assessed to be HK$14,000.00.