RAND DEVELOPMENT LTD AND ANOTHER v. 邱安

DCCJ 4605/2020

[2022] HKDC 1406

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4605 OF 2020

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

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

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

DECISION

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

1.  P1 is the registered owner of a piece of land defined as Lot 414 and P2 is the registered owner of another 2 pieces of land defined as Lot 415 and Lot 417.

2.  This is Ps’ application for default judgment against D by Summons filed on 24 August 2022 (the “Summons”).

3.  Firstly, procedural steps leading up to the present application warrants recital, as there is an issue arising.

4.  The original Writ, specially endorsed with a SoC, was issued and filed on 31 August 2020.

5.  According to the affirmation of Andy Cheung (filed on 28 January 2021), the specially endorsed Writ was served on D by registered post on 1 September 2020 and by posting up at D’s usual and last known address on 3 September 2020, as recovery of land was sought in the action.

6.  D filed AS thereto on 10 September 2020 through his former solicitors. D has subsequently since 19 October 2020 acted in person.

7.  Having seen no Defence filed by D within time, Ps on 11 December 2020 served on D by ordinary post a Notice of Intention to Enter Judgment as per O.19, r.8A RDC.

8.  Then, by Summons of 28 January 2021 Ps applied for default judgment.

9.  By an order dated 15 April 2021, Ps were given leave to withdraw the 28 January 2021 Summons.

10.  Then Ps amended the Writ and SoC without leave on 8 July 2021.

11.  According to the 3^rd affirmation of Andy Cheung (filed on 29 November 2021) (the “2021 Service Aff.”), the Amended Writ and ASoC were posted at a conspicuous place, however there was no mention of the service of the Amended Writ and ASoC as per O.65, r.5 by ordinary post (see Hong Kong Civil Procedure 2023 Vol.1 n.20/4/3 at p.577).

12.  Reference to that service came, without any explanation, in the 4^th affirmation of Andy Cheung filed almost a year later on 9 November 2022 (the “2022 Service Aff.”), exhibiting a copy of the cover letter for the ordinary post service dated 2 August 2021. 

13.  Apart from the fact that evidence of service by ordinary post and the documentary record of it surfaced more than a year after it was carried out, the cover letter exhibited also shows an apparent departure from the previous practice adopted by the firm for the service of the original Writ and SoC.

14.  For the service of the original Writ and SoC, the firm used the same cover letter for both the posting up and the registered post types of service; the cover letter was marked “By Posting & By Registered Post”.  However, the posting up and ordinary post service for the Amended Writ and ASoC came under separate cover letters, one marked “By Posting up” and the other marked “By Ordinary Post”.

15.  Enquiries were made on the above at the hearing on 14 November 2022 and pursuant to the directions given at the hearing, Ps filed a 2^nd Affidavit of Luke Yip (“LK 2^nd Aff.”) to explain the above.

16.  The explanation is that the cover letters referred to in the 2021 Service Aff. and the 2022 Service Aff. were prepared by a trainee solicitor (who is now no longer with the firm) and she had adopted a different practice of preparing separate letters for different mode of service.  It was also her inadvertence that led to the omission of ordinary post service in the 2021 Service Aff., which was only discovered by the partner when preparing for the hearing fixed on 14 November 2022 and that was how the reference to ordinary post service came to be included only in the 2022 Service Aff..

17.  There is no apparent reason for me to go behind the above sworn evidence and I do take the view that my enquiries have been fully addressed.  I should only add that such evidence should have been included in the 2022 Service Aff. in the first place, and for this reason I shall not allow costs for preparing LK 2^nd Aff..

18.  Secondly, under an application under O.19, r.7 RDC, the Court cannot receive any evidence (apart from evidence of service obviously) and must give judgment according to the pleadings alone (Hong Kong Civil Procedure 2023 Vol.1 n.19/7/11 at p.567).

19.  The Court also retains a discretion as to whether to give judgment.

20.  For the present claim, Ps seek, among other reliefs, a mandatory injunction against D for compliance with the order issued by the Town Planning Department on 14 November 2019 (the “TPD Order”).

21.  However, Ps’ pleaded case is that D is no longer entitled to remain on any of Ps’ land and vacant possession of the same is sought.

22.  If judgment for possession is given, then Ps would be perfectly capable of, legally and practically, to cause works to be done to comply with the TPD Order.  The cost and effort so spent can be adequately compensated by the accompanying damages claim, for which interlocutory judgment is also sought.

23.  It seemed to me that it would be more sensible for Ps to comply with the TPD Order as the land owners rather than the Court making and policing a mandatory injunction for D, now a trespasser that has defaulted in entering any kind of appearance herein, to do so.

24.  The above views were shared at the hearing on 14 November 2022, and Ps were asked to lodge a skeleton confirming the reliefs they seek.

25.  By their skeleton lodged on 21 November 2022, Ps confirmed that they no longer seek a mandatory injunction against D and would only proceed with the remaining reliefs as stated in the Summons.

26.  Given the above and having considered the Amended Writ and ASoC, I am satisfied that judgment in the following terms should be entered against D :-

(a)     Interlocutory judgment in terms of paragraphs (b) and (c) of the Summons, with damages to be assessed;

(b)     Final judgment in terms of paragraphs (d) and (e) of the Summons;

(c)     There be no order as to costs in respect of LK 2^nd Aff.;

(d)     Subject to (c) above, costs of the action, including costs of this application, be to Ps, to be taxed if not agreed.