YUEN CHAK CONSTRUCTION CO. LTD. v. YU KAM SANG

DCCJ9490/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 9490 OF 2001

______________________

R U L I N G

______________________

1. This is my ruling on the question of costs arising out of the defendant's Summons dated 14 March 2002 which sought to set aside the Interlocutory Judgment entered herein against the defendant on 23 August 2001 in default of giving a Notice of intention to defend.

2. At the beginning of today's hearing, parties have agreed that the Judgment should be set aside and I have already made an order by consent to that effect.

3. The Writ of Summons endorsed with a Statement of Claim was issued in these proceedings on 11 June 2001. It was served by registered post on 13 June 2001.

4. The Writ of Summons was preceded by a letter before action from the plaintiff's solicitors to the defendant dated 11 April 2001. In the letter, the nature of the plaintiff's claim had been stated and the claim had been quantified at $422,000.

5. In paragraph 10 of his Affirmation made on 13 March 2002, the defendant stated as follows:

"The said Letter (being a reference to the letter dated 11 April 2001) was written in English. Since I had only received primary education in Indonesia and can only read and write simple Chinese with no proficiency in English at all, I did not understand the contents of the said Letter. Upon receiving the said Letter, I visited the Tsuen Wan District Office on about 15 May 2001 seeking assistance. I was briefly explained that the Employer was claiming against me for a sum of HK$400,000-odd and was advised to enquire with the sender of the letter about the matters stated therein. In the afternoon of that day, I therefore attended the office of Messrs Hui & Lam at Hang Sang Building, Central for clarification."

6. Therefore, even at that stage, the defendant was aware that a demand had been made by the plaintiff, and it was a claim for some $400,000.

7. Ms Yau, acting for the defendant today, made the complaint that in contravention of paragraph 3(b) and (d) of Practice Direction 24.2, the Chinese language version of the Writ did not contain the cause number, names and addresses of the parties, and a summary in Chinese of the relief claimed. Ms Yau went on to submit that in view of the non-compliance with the Practice Direction in preparing the Writ, the Default Judgment obtained in respect thereof is irregular.

8. It should, however, be pointed out that the Writ of Summons served on the defendant did provide in Chinese language guidance for the recipient pointing out the importance of returning the accompanying Acknowledgement of Service and the serious consequence of a failure to do so within time.

9. The defendant received the Writ of Summons through the post in mid-June 2001. On 18 June 2001, the defendant applied for legal aid. On 19 June 2001, a Memorandum of Notification of an Application for Legal Aid was filed in this action. Ms Yau fairly conceded that by that stage, the defendant must have been aware of the identity of the plaintiff and the cause number in question.

10. To complete the relevant chronology, legal aid on that occasion was refused on 15 August 2001. Thereafter the plaintiff entered the Default Judgment on 23 August 2001.

11. In my judgment, the failure to comply with Practice Direction 24.2 did not have the drastic consequence of rendering the Default Judgment an irregular one. The legal status of Practice Directions has been explained in Practice Note PD/1 at page 1248 of the Hong Kong Civil Procedure 2002:

"The High Court Ordinance identifies the extent, and prescribes the limits, of the jurisdiction of the High Court. As secondary legislation, the High Court Rules set out regulations as to the exercise by the judiciary of the powers given to it by the High Court Ordinance to supervise, control and adjudicate upon litigation conducted in the High Court. The High Court Rules regulate all aspects of the activities of the High Court, including the Registry, bailiffs, masters, judges sitting in the Court of First Instance and judges sitting in the Court of Appeal. The High Court Rules include as an Appendix prescribed forms to be used by litigants and the High Court, ranging from forms of originating process to orders.

In addition to the High Court Rules, the judiciary issue practice directions. Unlike the High Court Ordinance and the High Court Rules, the practice directions do not have statutory force." (Emphasis supplied)

12. The same principles of course are applicable to proceedings in the District Court.

13. Furthermore, I am not satisfied that the non-compliance of Practice Direction 24.2 in this case has caused prejudice to the defendant. He knew that an action was pending in the District Court against him. He knew that the claim was made against him by the plaintiff. He knew that it was a claim for some $400,000. He ought to have taken heed of the warnings in Chinese language accompanying the Writ.

14. Accordingly, I hold that the Default Judgment entered on 23 August 2001 was a regular judgment. In the exercise of my discretion, I make the following order as to costs:

1) The costs of and occasioned by the Summons dated 14 March 2002 and the costs thrown away by the setting aside of the Interlocutory Judgment be paid by the defendant to the plaintiff in any event, to be taxed if not agreed.

2) The defendant's own costs be taxed in accordance with Legal Aid Regulations.

15. I am not minded to depart from the usual order made on interlocutory applications that costs should be paid 'in any event' rather than 'forthwith'. I take into account that the defendant at the time when default judgment was entered was not legally represented. I maintain my original ruling that costs should be paid only 'in any event'.