CITY UNIVERSITY OF HONG KONG v. HANS RICHARD MAHNCKE

HCA 935/2014

[2019] HKCFI 1250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 935 OF 2014

____________

____________

_______________

DECISION

_______________

Introduction

1.  On 30 November 2018, the defendant filed a summons (“the summons”) for an order setting aside the default judgment entered by L Chan J against the defendant on 30 July 2015 (“the judgment”).  In the summons, the defendant has provided an address in Hong Kong as his address for service (“the new address”).

2.  As summarized by the learned judge in his written decision dated 30 July 2015, the essence of the plaintiff’s case is as follows:

“ 3. This action is to enforce a separation agreement between the defendant and the plaintiff made on 13 June 2013. By this agreement, the plaintiff paid the defendant a settlement sum in return for a mutual release of all claims that one may bring against the other. The defendant by this agreement also agreed to release all claims against a host of people related [to]the plaintiff, including those sitting in its council, those who are its teaching and supporting staff and its students.

4. The Statement of Claim says that the defendant has taken the settlement payment but breached the agreement.  The defendant has also reneged on the agreement by claiming that the plaintiff had breached it, but without foundation.  The plaintiff now seeks various reliefs.  I think the plaintiff is entitled to some of these reliefs, including declaratory reliefs.”

In the judgment, the learned judge granted some of the reliefs claimed in the statement of claim to the plaintiff.

3.  On 12 February 2019, the summons was heard by B Chu J.  In that hearing, the defendant sought leave to file and serve a further affirmation, and the defendant also requested the summons to be determined on paper without an oral hearing.  After hearing the parties, the learned judge gave directions for the disposal of the summons, including a direction that the matter would be dealt with on paper unless otherwise directed by the court on or before 31 March 2019.  In that hearing, the defendant has confirmed the new address as his address for service.

4.  On 7 March 2019, the plaintiff took out a summons for leave to file an affirmation in reply as a result of some new evidence produced by the defendant (“the plaintiff’s summons”).  Having considered written submissions from both sides, on 2 April 2019, I made an order concerning the filing of affirmations and the provision of written submissions (includingsubmissions on costs).  I also directed that the summons be determined by me without an oral hearing unless the court directed otherwise.

5.  Having considered the evidence produced and the written submissions provided by the parties, I am of the view that this matter can be determined on paper without an oral hearing.  This is my decision on the summons.

The real issue

6.  In all the affirmations filed by the defendant and all the writtensubmissions prepared by the defendant, the defendant is saying that there has been no valid service of the writ of summons on him, and hence the judgment must be set aside.

7.  The defendant submits that at the time of the purported service of the writ of summons, he was not in Hong Kong.  The plaintiff knew or ought to have known that he was not in Hong Kong at that time.  In these circumstances, there could not be any valid service of the writ of summons on him.

8.  It is important to note that the writ of summons was not served on the defendant pursuant to any provision in the Rules of the High Court (“RHC”), Order 10, rule 1.  The writ of summons was served pursuant to the order for substituted service made by the court on 26 January 2015 (“the order”). There is a clear distinction between ordinary service and substituted service. See Melco Crown Gaming (Macau) Ltd v Wong Yam Tak [1], per Anthony To J:

“ 38. Sopex International SA [2] is inconsistent with a long line of very well established authorities from the English Court of Appeal as early as the 19th century and from the Hong Kong Court of Appeal to the effect that service of process by substituted service is deemed actual service which is valid and effective. In Watt v Barnett [3], for example, Jessel MR said:

The Court, when an application for leave to effect substituted service is made, decides as to the propriety of granting it, and if service is effected according to the order of the Court it is, while the order remains undischarged, equivalent for all purposes to actual service. I agree, however, with both the learned judges that, though the service may have been regular according to the order, still the Court has power to set aside the judgment where that is necessary for the purpose of doing substantial justice. The mere fact that the defendant has not had notice of the proceedings is not of itself sufficient; to hold it to be so would in fact be setting aside the order for substituted service. But ifhe shews that he had no notice, and that he has a good ground of defence, it is reasonable that he should be let in to defend. The first question then is whether the Court is satisfied that there is a good defence on the merits, if not, leave to come in ought to be refused.

(My emphasis.)

39. Watt v Barnett was referred to and adopted by Hunter JA in Honour Finance Co Ltd v Chui Mei Mei.[4] Hunter JA said:[5]

Any legal system has to operate within the parameters of practical realities. When a court orders substituted service, eg by advertisement, it can do no more than its best to bring the proceedings to the notice of the particular defendant. No one, court or party, would for one moment guarantee success. … Compliance with an order for substituted service was there treated as ‘equivalent for all purposes to actual service’ (per Jessel, MR at p 366). Accordingly the mere fact that the defendant was able to show lack of notice was not sufficient to entitle him to be let in to defend. He was required in addition to show ‘a good ground of defence’.

At that time service by post was a recognised form of substituted service. Now it is a permissible variant to personal service. It is not a second class variant, but an effective variant, given proper compliance with the rules. Then the deeming provisions give service by post a quality again ‘equivalent to actual service’ in the absence of evidence to the contrary. A default judgment entered then is regular, not in the language of Lopes, LJ in Anlaby v Preatorius (1888) 20 QBD 764,771:

‘ A wrongful act, not an act done within any of the rules.’

Such a judgment will then only be set aside upon proof both of lack of timeous receipt and merit.

(My emphasis.)

40. More recently, in Chan Yeuk Mui,[6] which was consideredby Deputy Judge Saunders in Sopex International SA, Rogers JA (as he then was), held:

The order for substituted service, once made, took effect to provide that service in accordance with the order would constitute a valid service. Such an order should not be set aside lightly particularly as the order had been made following established practice.

41.   The rationale behind this principle arose out of the distinction between ordinary service and substituted service.  Substituted service is invoked where service in accordance with the ordinary rules of service is ineffective and impracticable.  Usually, this situation is brought about by the defendant providing an incorrect address inadvertently or deliberately with a view to avoid service or is caused by some conduct of the defendant which prevented effective service and for which the defendant is responsible, even if not to blame.  Substituted service is to provide a practical solution to such situation to enable the proceedings to progress and to do justice between the parties in circumstances where the ordinary rules of service would prevent justice from being done.  A party seeking to serve any process by substituted service has to apply to the court for leave. The court decides its propriety and the adequacy of the mode of service.  Leave is only granted if the court is satisfied that it can do no more than its best, within the realm ofreasonable practicability, to bring the proceedings to the notice of the defendant by the mode of service prescribed in the order. This special mode of service in compliance with an order of the court, as distinct from ordinary mode of service pursuant to rulesof the court, has the sanction of the court and is therefore treatedas actual, effective and valid service as a matter of practical reality.  This rationale could be seen running throughout the decisions in Watt v Barnett, Honour Finance and Chan Yeuk Mui.  This principle has never been doubted, except in Sopex International SA.  To adopt the same test for the two modes of service would render substituted service an unnecessary and a meaningless waste of the court’s time and the plaintiff’s costs.  Putting this in another way, if service in accordance with an order for substituted service is not to be treated as valid and actual service,the whole regime of substituted service would be rendered redundant and wasteful of the litigant’s time and costs. In my view, this principle which has stood unchallenged for over a hundred and thirty years is now cast in stone.”

(Emphasis added)

9.  Since the writ of summons was served pursuant to the order, assuming that the defendant was not in Hong Kong at the time of service of the writ of summons, this would not render the judgment as an irregular judgment.  If the order stands, the judgment must be a regular judgment.

10.  In his written submissions dated 8 May 2019, the defendant also claims that he has a meritorious defence to the plaintiff’s claim in this action.  The defendant is saying that by this reason, even if the judgment is a regular judgment, the judgment should still be set aside.

11.  In my view, the issues in this application are as follows:

   (1)   whether the defendant has made out any ground upon which the order ought to be set aside; and

   (2)   whether the defendant has shown any defence having a real prospect of success.

The facts

12.  I would set out the material facts as shown in the evidence in the paragraphs below.

13.  On 28 May 2014, the writ of summons (with a statement of claim annexed thereto) was issued.  At the same time, the plaintiff published an announcement in the internal website informing the plaintiff’s staff that the writ of summons in these proceedings had been issued against a former employee for his repeated breaches of a separation agreement. 

14.  On 28 May 2014, the plaintiff’s tried to serve the writ of summons on the defendant by sending a sealed copy of the same by registered post to the residential address of the defendant last known to theplaintiff (“the Sai Kung Address”).  The mail was returned to the plaintiff’s solicitors on 23 June 2014 and marked “Unclaimed Return to Sender”.

15.  On 29 May 2014, the defendant issued a writ of summons against the plaintiff in HCA 942/2014.  That writ of summons was signed by the defendant himself.  The defendant’s address as stated on that writ ofsummons was the Sai Kung Address.  The defendant’s claim in that actionis for defamation from the publication of an announcement published and/or caused to be published by the president of the plaintiff on 28 May 2014.

16.  On 3 July 2014, a litigation clerk of the plaintiff’s solicitors (“Mr Lam”) went to the Sai Kung Address and inserted a sealed copy of thewrit of summons through the letter box for that address.  On 17 November2014, the sealed copy of the writ of summons was returned to the plaintiff’s solicitors and marked “Wrong Address Return to Sender”.

17.  In September 2014, the president of the plaintiff came to knowa letter dated 18 June 2014 from the defendant to the president (“D’s June Letter”), in which the defendant said that back in March 2014, he had given notice of termination of his lease of the property at the Sai Kung Address and subsequently moved out from that property.  In that letter, the defendant said that the reason for moving out from the residence in Sai Kung was to take financial contingency measures, as a result of the precedent breaches of the separation agreement. The defendant did not mention that he was prepared to leave Hong Kong permanently.  Further, the defendant did not mention his address in the letter.

18.  On 10 October 2014: 

   (1)   Mr Lam sent two copies of an appointment letter (“Appointment Letter A”) to the defendant by sending the same to the Sai Kung Address by registered post and by ordinary post respectively.  The ordinary post was returned and marked “Moved”.  The registered post was returned and marked “Moved, redirection service not arranged by addressee”;

   (2)   Mr Lam also sent a copy of Appointment Letter A to the defendant by sending the same to the defendant’s email address known to the plaintiff (“D’s email address”).  That email has not been returned to the sender;

   (3)   Another litigation clerk of the plaintiff’s solicitors (“Mr Kam”) sent two copies of an appointment letter (“Appointment Letter B”) to the defendant by registered post and ordinary post respectively to the office of a company called “College of Law” (“the Office”).  According to the website of the College of Law, the defendant was a tutor there at that time.  The registered post was returned to the plaintiff’s solicitors on 9 January 2015 and marked “Refused”.  The ordinary post was returned to the plaintiff’s solicitors on 14 January 2015 and marked “Refused”.

19.  On 17 October 2014 and 22 October 2014 (before the return of Appointment Letter B to the plaintiff), in accordance with the times set out in Appointment Letter B, Mr Kam went to the Office for the purpose ofserving the writ of summons on the defendant personally.  On each occasion, Mr Kam was told by the same female receptionist (“Receptionist A”) that the defendant was not in Hong Kong.  The receptionist further told Mr Kam that she did not know when the defendant would return to Hong Kong.  Mr Kam provided his contact number to the receptionist and requested thedefendant to contact the plaintiff’s solicitors when the defendant came back.  Mr Kam also asked the receptionist whether the defendant received the appointment letters, and the receptionist replied “Yes”.

20.  On 24 October 2014 and 29 October 2014, in accordance with the times set out in Appointment Letter A, Mr Lam went to the Sai Kung Address for the purpose of serving the writ of summons on the defendant personally.  On each occasion, Mr Lam was received by a maid working there.  Mr Lam told the maid the purpose of his visit.  The maid told Mr Lam that the defendant was not living in that address and she did not know the whereabouts of the defendant.  The maid also told Mr Lam that the family living there only moved in about one month ago.  Mr Lam made enquiries with a male living at the neighbour house.  That male told Mr Lam that he did not know the defendant or his whereabouts.

21.  On 18 December 2014, Mr Kam went to the Office with the purpose of serving the writ of summons on the defendant personally.  He was told by another female receptionist of the College of Law (“Receptionist B”) that the defendant was not in Hong Kong.  The receptionist said that she did not know the whereabouts of the defendant, and the receptionist also said that she did not know when the defendant would have lesson at the College of Law nor the defendant’s schedule.

22.  On 8 January 2015, the plaintiff’s solicitors conducted an online search at the Companies Registry and revealed that the defendant was a director of College of Law.

23.  On 26 January 2015, the plaintiff obtained the order.  Pursuant to the order, on 26 February 2015, the plaintiff’s solicitors placedan advertisement of the order and notice of these proceedings in English in The Standard, and sent sealed copies of the writ of summons to the Office and to the Sai Kung Address by prepaid ordinary post.  By virtue of the order, these are deemed to be good and sufficient service of the writ of summons.

24.  On 30 July 2015, at the beginning of the hearing before L Chan J, the court told the plaintiff that the court had received a call from someone who claimed to be the defendant at around 9:05 am on that day.  The caller claimed that he had moved to Germany 14 months ago and was not available to attend the court hearing on that day.  The caller also claimed that no paper had been served on him.  Notwithstanding this call, the court proceeded to hear the plaintiff’s application and granted the judgment to the plaintiff at the end of the hearing.  There is no dispute that the caller is indeed the defendant himself.

25.  The defendant has produced documents, including a statementfrom the Immigration Department, showing that he was not in Hong Kong from 4 July 2014 to 4 July 2015.  The defendant claims that he has left Hong Kong permanently in June 2014.

26.  According to the defendant, he became aware of the judgmentin July 2015 [7].  However, the summons was only taken out on 30 November 2018.  There is a long and substantial delay in taking out the summons, and there is no satisfactory explanation for the delay.

Regularity of the judgment

27.  Whether the judgment is a regular judgment hinges on whether the order should be set aside.  Since the order is an ex parte order,the court may set aside the order if there is material non-disclosure on the plaintiff’s part in that ex parte application[8].  I have examined the evidence to see whether there is any material non-disclosure by the plaintiff in the ex parte application. 

28.  On the question of material non-disclosure, the principles set out by the Court of Appeal in Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [9] have to be borne in mind.  In that case, Hunter JA said:

“ I turn now to the two principles I conceive to be relevant in relation to non-disclosure. First, the court’s power to discharge any order obtained ex parte for material non-disclosure is salutary and necessary. As one of the earlier cases shows, R v Kensington Income Tax Commissioners, ex p Polignac (Princess) [1917] 1 KB 486, it is there for the court’s own protection. It is necessary to prevent its processes being abused. Secondly,there is another equally significant principle in this jurisdiction. This is to make sure that the court does not get itself in a positionof what might be called ‘counter abuse’: where this sort of point is regarded by litigants as ‘a very present help in trouble’; and where problems arise on the substance to resort to attack as the best method of defence. The point was put in words, upon which I will not attempt to improve, by this court in Citibank NA v Express Ship Management Service [1987] HKLR 1184; first in the judgment of my Lord, the Vice-President. He starts by citing from the judgment of Browne-Wilkinson J in Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 that what are material are:

… all facts that are relevant to the weighing operations which the court has to make in deciding the point before it.

My Lord went on in these terms:

While the courts must be vigilant, and insist that full and frank disclosure be made in grounding affidavits for ex parte applications for injunctions, Anton Piller orders etc, it is essential to bear in mind the true principle upon which this rule is based. Unless the courts use the sanction whichthe principle gives them only where the non-disclosure is of facts which are relevant to the ex parte judges’ ‘weighing operation’, an impossible burden would be placed upon applicants and their advisers, and affidavits ex abundanti will tend to contain all sorts of facts and exhibits which are not really necessary for the proper exercise of the court’s discretion when ex parte relief is sought.

Likewise, I am happy to adopt the observations of Macdougall J who on p 1191 says:

It would be unfortunate if it were to be thought that in laying down the very sensible and necessary principles concerning disclosure of all material facts, the court has intended to give active encouragement to undeserving defendants to search ingeniously for facts which a plaintiff may innocently have failed to disclose, in the hope that a judge may consider them to be material and so discharge … [the original order].” (Emphasis added)

29.  The defendant relies upon the following in support of his setting aside application:

   (1)   A senior staff member of the plaintiff has given the defendant a reference letter for his new job overseas.

   (2)   Some members of the plaintiff’s staff knew that the defendant was emigrating and where the defendant would go to.

   (3)   The plaintiff has sent messages to the defendant through some staff members in the past.  The plaintiff could pass messages concerning these proceedings to the defendant through the same staff members, but the plaintiff did not do so.

   (4)   The plaintiff ought to make enquiries with the staff members,including John Tse, James Parker and a person with the name “Anthony”.  Had the plaintiff done so, the plaintiff would have had found out the fact that the defendant had permanently left Hong Kong in mid-2014 and the whereabouts of the defendant.

   (5)   The plaintiff should conduct internet searches.  Had the plaintiff done so, the plaintiff would have had found out that the defendant was working in a foreign university in 2014.

30.  The plaintiff’s reply is as follows:

   (1)   Before the defendant making this setting aside application, the plaintiff did not have any knowledge that the defendant had allegedly permanently emigrated from Hong Kong in 2014.

   (2)   The plaintiff has no knowledge or record that any reference letter was ever given to the defendant as alleged.

   (3)   The plaintiff has no knowledge or record showing that the plaintiff has ever sent messages to the defendant through some staff members.  The plaintiff has no need to do so, for the plaintiff is aware of D’s email address and would directly send messages to that email address.  In fact, after the commencement of these proceedings, the defendant has continued to send emails to the plaintiff’s officers from D’s email address, and the plaintiff and the plaintiff’s legal representatives have also sent emails to that email address.

   (4)   It is the plaintiff’s case that by a letter dated 24 January 2014 from the defendant to the chairman of the plaintiff’s council, the defendant claimed that during discourses the chairman had with John Tse on 31 January 2013 and 1 March 2013, the chairman had made statements defaming the defendant.  The defendant demanded the chairman to retract his statements and offer the defendant an apology.  On 25 April 2014, the defendant commenced HCA 744/2014 against the chairman, alleging the chairman had defamed him in January and March 2013.  The plaintiff claims that the commencement of HCA 744/2014 is a breach of the separation agreement entered between the plaintiff and the defendant.  Against this background, it would not be appropriate for the plaintiff to ask John Tse the whereabouts of the defendant.

   (5)   James Parker worked as an instructor at the plaintiff’s School of Law from 12 January 2007 to 20 May 2010. The plaintiff had no knowledge or record of any contact or communication between the plaintiff and James Parker after May 2010.

   (6)   The plaintiff has conducted internet searches as suggested by John Tse in his affirmation, but the results are not those shown in John Tse’s affirmation.  In any event, the internet searches mentioned by John Tse were done in 2019.  There is no evidence showing that an internet search done in 2014 would show the same result.

31.  In my view, the defendant’s challenges have been satisfactorily answered by the plaintiff.  The defendant has failed to produce any document (for example, the reference letter mentioned in the defendant’s affirmation) to show that the plaintiff knew that the defendant had permanently left Hong Kong in mid-2014.  Although when Mr Kam visited the Office, both Receptionist A and Receptionist B told him that the defendant was not in Hong Kong, neither receptionist had ever told Mr Kam that the defendant had left College of Law and had left Hong Kong permanently.  Further, in D’s June Letter, there is not a word mentioning that the defendant has left or was prepared to leave Hong Kong permanently.

32.  I am also of the view that the plaintiff has no obligation to askeach and every staff member who had worked with the defendant to find out the whereabouts of the defendant.  After all, the defendant had notice of both Appointment Letter A[10]and Appointment Letter B[11]in October 2014. The defendant knew that the plaintiff was trying to make an appointment to serve the writ of summons on him personally, but the defendant chose not to make any reply to the plaintiff.

33.  Further, I am of the view that the defendant was closely monitoring the progress of these proceedings at all times, as evidenced by the fact that he was able to make a telephone call to the court just before the hearing of the plaintiff’s application for a default judgment on 30 July 2015. 

34.  In my judgment, there is no material non-disclosure on the plaintiff’s part in the ex parte application for the order.

35.  At the time of the issue of the writ, the defendant was in Hong Kong.  The defendant knew that the plaintiff had commenced these proceedings when he was still in Hong Kong.  I say so for the following reasons:

   (1)   The defendant has never said that he was not in Hong Kong on 28 May 2014.  There is no evidence showing that the defendant was not in Hong Kong at any time in May 2014.

   (2)   The subject matter in HCA 942/2014 is the announcement published by the plaintiff on 28 May 2014, and that announcement concerns these proceedings.  By commencing HCA 942/2014 on 29 May 2014, the defendant was in fact aware of these proceedings.

   (3)   The writ of summons in HCA 942/2014 was signed by the defendant personally, and the address for service given in that writ of summons was the Sai Kung Address.  At the time of the issue of that writ, the defendant was in Hong Kong.

36.  The writ of summons in these proceedings is for service within the jurisdiction.  The defendant was in Hong Kong at the commencement of these proceedings.  These proceedings came to his knowledge while he was in Hong Kong.  In these circumstances, even if the defendant has actually left Hong Kong in June 2014, the court may still make the order to effect service of the writ of summons on the defendant.See Jay v Budd [12].

37.  The defendant relies upon Deutsche Bank AG, Hong Kong Branch v Zhang Hong Li [13]. In that case, the plaintiff issued a writ of summons against the defendant, who was a PRC national resident in Mainland China.  The plaintiff obtained leave under RHC Order 11, rule 1(1) to serve the concurrent writ out of jurisdiction on the defendant in the Mainland, but the service was not successful.  The plaintiff then obtained an order for substituted service and by virtue of that order served the writ of summons on the defendant by delivering the same to a law firm in Hong Kong.  The Court of Appeal upheld the order for substituted service in those circumstances.  Relying upon [4] and [5] of the Court of Appeal’s judgment, the defendant submits that substituted service within jurisdiction on a defendant residing overseas can only be allowed if the requirement of RHC Order 11, rule 1 is met and there are previous unsuccessful attempts to try to serve the writ on the foreign defendant.  The defendant argues that all these have not been done by the plaintiff, and the order must be set aside.

38.  I do not agree.  The facts in the present case are very different from the facts in Deutsche Bank AG.  Here, at the time of the issue of the writ of the summons, the defendant was in Hong Kong.  The defendant had knowledge of the writ of summons while he was in Hong Kong.  After knowing that, the defendant chose to leave Hong Kong without notifying the plaintiff and without informing the plaintiff his whereabouts.  Further, the defendant deliberately chose not to respond to the repeated requests made by the plaintiff for an appointment for the purpose of effecting personal service of the writ of summons on him.  In my view, in these circumstances, the applicable principle of law is the one stated in Jay.  Insofar as may be necessary, I am also of the view that the plaintiff’s claim herein falls within Order 11, rule 1(1)(d) and (f), for the reasons that: (a) in the light of the background leading to the separation agreement and the terms of the separation agreement as pleaded in the statement of claim, the separation agreement should be governed by Hong Kong law by implication; and (b) the plaintiff’s claim is resulted from the defendant’s acts in breach of the separation agreement in Hong Kong.  

39.  I come to the conclusion that there is no factor vitiating the order.  The order must stand.  Accordingly, the judgment is a regular judgment.

Any real prospect of success?

40.  In order to set aside a regular judgment, the applicant has to show “a real prospect of success” in defending the case against him, which means that his purported defence carries some degree of conviction.  In assessing whether this threshold has been met, there should be no mini-trial on affidavit evidence[14].

41.  In his written submissions dated 8 May 2019, the defendant argues that he has a meritorious defence to the plaintiff’s claim:

“ 36. For instance, City University materially breached our settlement agreement by publishing something on the internet which put me in a bad light and which was explicitly prohibited by the settlement agreement that I had reached with City University (page 2 of my affidavit of 12 February 2019). They also smeared me in the media and via certain staff members. I had every right to a remedy in light of these breaches, which caused me tremendous harm. In fact, the sad irony is that the reason I had to leave Hong Kong, were these very smears from City University, which rendered me unemployable. Yet, the default judgment reads as if these breaches never took place.

37. Even if we were to disregard City University’s breaches, there is another dispositive reason as to why the default judgment must be set aside, on the merits alone. In hisjudgment of 30 July 2015, the Judge held that I was not allowed to pursue certain claims against City University based on the settlement agreement that I had agreed with City University (para. 9 of the judgment, attached). However, the language used in the judgment does not correspond with the language of the settlement agreement (section 1.1, attached).

38. In respect of the kinds of claims that I can purportedly not pursue, the judgment says, in relevant part: ‘proceeding, arbitration, liability, accounts, costs or expense including any legal costs or expense or demand arising under the provision of any contract of statute’. In the corresponding section, the actual agreement between the parties says this: ‘proceeding, arbitration, liability, accounts, costs or expense (including any legal costs or expense), demand, arising under the provision of any contract of statute’.

39.   The word ‘or’ which does not appear in the actual agreement, has suddenly been added between ‘demand’ and ‘arising’.A very important comma, i.e. the comma between ‘demand’ and ‘arising’, a comma which does appear in the original agreement, has suddenly disappeared.  This changes the meaning of what the parties agreed.  We specifically negotiated this agreement the way it was written because not all claims were to be excluded.”

42.  In respect of the point made in [36] of his written submissions,no satisfactory evidence has been put forward by the defendant.  As to what exactly has been published on the internet by the plaintiff and why the publication is a breach of the separation agreement, there is not a word on all these.  In my view, there is no substance in this submission.

43.  I am also of the view that there is no substance in the submissions made by the defendant in [37] – [39] of his submissions.

44.  In my judgment, the defendant has failed to show that he has a real prospect of success in defending the plaintiff’s claim.

Disposition

45.  For the reasons above, the summons must be dismissed.  I dismiss the summons.

46.  Costs should follow the event.  I order that costs of the summons (including costs reserved) be to the plaintiff forthwith and be summarily assessed as follows:

   (1)   Costs of the plaintiff’s summons:

The total costs claimed by the plaintiff in relation to this summons are HK$35,740.  I am of the view that these are reasonable costs and I allow them in full.

   (2)   Costs of the summons:

   (a)   Costs of the manual work involved is HK$2,487.  The sum is reasonable and I allow this in full.

   (b)   The total of the costs claimed in relation to communication is HK$54,480.  In my view, this is excessive. I would only allow HK$20,800.

   (c)   The total of the costs claimed in relation to professional work is HK$115,960.  In my view, this is excessive.  Taking a broad brush approach, I would allow HK$50,000 for these items.

   (d)   Counsel’s fee is HK$32,000.  This is reasonable and I allow this in full.

   (e)   The total amount allowed is HK$2,487 + HK$20,800 + HK$50,000 + HK$32,000 = HK$105,287.

47.  Accordingly, the total amount of costs payable by the defendant to the plaintiff forthwith is HK$35,740 + HK$105,287 = HK$141,027.