GE CAPITAL (HONG KONG) LTD v. YUNDA EXPRESS LTD AND ANOTHER

DCCJ 771/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 771 OF 2010

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JUDGMENT

1.  I am seized of 2 applications of the plaintiff this morning.  The defendants are unrepresented and absent.

2.  First, there is an application for summary judgment by summons (“the Summary Judgment Summons”) dated 23 March 2010 taken out under Order 14 and Order 14A of the Rules of the District Court (“the DCR”). 

3.  The 2^nd application is for default judgment against both defendants by summons dated 13 April 2010 pursuant to O.13 of the DCR (“the Default Judgment Summons”). The exact rule relied on is not specified. Paragraphs 1 and 2 of the Default Judgment Summons read as follows:

 “ 1. The 1^st and 2^nd Defendants having failed to give notice of intention to defend, the Plaintiff applies to enter final judgment against the 1^st and 2^nd Defendants for a declaration that the Plaintiff is the beneficial and rightful owner of the 1^st vehicle and the 2^nd vehicle;

The Plaintiff is entitled to take possession of the 1^st vehicle and the 2^nd vehicle…”

4.  Mr. Lau, Counsel for the Plaintiff, confirms that paragraph 2 of the Default Judgment Summons is a declaration sought by the plaintiff.

5.  Whilst the Writ herein and the Statement of Claim were served on the 1^st and 2^nd defendants on 4 March 2010, there is no affidavit evidence to the effect that neither the 1^st defendant nor the 2^nd defendant has given any notice of intention to defend in support of the Default Judgment Summons. Mr. Lau confirms that no such notice has ever been given by either defendants.

6.  The defendants’ failure to give notice of intention to defend effectively takes this case out of the ambit of O.14 r.1 and O.14A r.1. It is an express prerequisite of an application for summary judgment in O.14 r.1 that the defendants must have given notice of intention to defend. The same applies to O.14A r.1: Hong Kong Civil Procedure 2010 Vol.1 para. 14A/2/3.

7.  In the premises, as accepted by Mr. Lau, the Summary Judgment Summons must be dismissed. To be fair to Mr. Lau, there is no mention of the Summary Judgment Summons in his skeleton submissions at all and he readily abandons the summary judgment application this morning.

8.  The Default Judgment Summons is equally bad, however.

9.  As the plaintiff is seeking declaratory relief, O.13 r. 6 applies. The plaintiff should, upon filing an affidavit proving the service of the Writ and Statement of Claim on the defendants, proceed with the action as if the defendants had given notice of intention to defend. And if the defendants do not serve their defence within time, the plaintiff then can apply for default judgment under O.19 r.7: Hong Kong Civil Procedure 2010 Vol.1 para. 13/6/1.   

10.  The plaintiff has filed an affirmation of Lam Kit Ming dated 31 March 2010 to prove service of the Writ and the Statement of Claim on the 1^st and 2^nd defendants on 4 March 2010. Arguably, this affirmation can suffice for the purpose of O.13 r. 6. The defendants should have further time to file their Defence pursuant to O.18 r.2(1).

11.  In the circumstances, the Default Judgment Summons is premature and after a brief adjournment, Mr. Lau fairly accepts that the plaintiff cannot proceed with the Default Judgment Summons. It must be dismissed too.

12.  As the defendants have not responded to the two summonses at all, I order that there be no order as to costs for both the Summary Judgment Summons and the Default Judgment Summons despite their dismissal.

13.  After discussion, the plaintiff’s solicitors fairly and sensibly agree to give an undertaking that they would not charge the plaintiff in respect of the two summonses.  That being the case, I do not find it necessary to consider O.62 r.8.

14.  Lastly, I thank Mr. Lau for his reasonableness and helpfulness.