MAXCOLM FINANCE LTD v. CHAN CHIN HUNG AND ANOTHER

DCMP 3829/2025

[2026] HKDC 472

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3829 OF 2025

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DECISION

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1.  Placed before me for determination is a rather unusual application by the Plaintiff, brought ex-parte by the affirmation of Law Ka Ho filed on 5 March 2026, to set aside the Order of Deputy District Judge Zabrina Lau dated 23 September 2025 (“the Order”) given at the first hearing of the Plaintiff’s Originating Summons herein issued on 11 July 2025.

2.  The Plaintiff is a licensed money lender. It issued the OS to (a) recover from the 1^st Defendant as borrower an outstanding but unpaid loan principal of HK$338,355.39 with interest and default interest, (b) enforce the mortgage securing the loan executed by the 1^st Defendant charging his interest in the property which is jointly owned by the 1^st and the 2^nd Defendant, and (c) apply for an order under Partition Ordinance for the sale of the property.

3.  As both the Defendants defaulted in filing an Acknowledgment of Service with a Notice of an Intention to Defend, and having satisfied that it was appropriate to dispose of the OS summarily in their absence and that the evidence proffered supported the granting of the relief, the Deputy Judge gave the Order sought in the OS with costs to be paid by the 1^st Defendant, giving a money judgment against the 1^st Defendant, ordering, unless full payment was made within 28 days, the 1^st and 2^nd Defendants to yield up possession of the property which would be sold and the proceeds be applied in the manner there set out.

4.  A Writ of Possession and Fieri Facias was issued in respect of the property on 16 January 2026.

5.  However, when posting the Writ of Possession at the property, a staff of the Plaintiff’s solicitors was informed by the watchman that both the Defendants had passed away. Hitherto, the Plaintiff and its solicitors did not know.

6.  The Plaintiff’s solicitors then conducted searches with the Hong Kong Immigration Department and the Registrar of Births and Deaths. They discovered and obtained certified copies of the Death Certificate of the 1^st Defendant certifying his death caused by cancer on 9 June 2025 and of the Death Certificate of the 2^nd Defendant certifying the discovery of her death by intentional self-poisoning on 12 February 2025. True copies of the Death Certificates were exhibited to the said affirmation of Law Ka Ho.

7.  Both Defendants therefore were already deceased at the time the OS was issued on 11 July 2025.

8.  Hence, the Plaintiff applied to set aside the Order, which was a judgment entered upon default of appearance. This is a prudent course as the intended sale of the property could not be properly effected if the Order is a nullity or was irregularly obtained.

9.  Order 15 rule 6A(3) of the Rules of the District Court provides :

“An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1), as the case may be, whether or not a grant of probate or administration was made before its commencement”

Thus, the present proceedings is not a nullity.

10.  However, as commented in 15/6A/5 of Hong Kong Civil Procedure 2026:

“Where an action is brought … against the estate of a deceased person where no grant of probate or administration has been made or an action is brought … against a deceased person which is required to be so treated, the plaintiff … must apply to the court for an order to carry on the proceedings, which will in effect enable the action to be properly proceeded with. Indeed, such an application will be necessary even for the preliminary and essential step of effecting service of the writ or originating summons without which the plaintiff cannot further proceed in the action, at any rate as against that defendant …”

11.  Therefore, not having obtained a carry on order, the purported service of the OS on the Defendants was plainly bad or ineffective and the Order obtained based on such service and their said default was consequentially an irregularly one.

12.  Therefore, I will accede to the Plaintiff’s present application and grant the order sought setting aside the Order with no order as to costs, as asked.