THE CHUNG SHUN LAND INVESTMENT COMPANY LIMITED v. TIMOTHY ROLAND STEADMAN

1985, No.A4215

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The action in this case was begun by writ issued on the 9th July last year. In the writ, the Plaintiff sought injunctions restraining the Defendant from leaving his car on the Plaintiff's land and requiring the car's removal. By inter-partr summons dated 18th July and returnable on 24th July, the Plaintiff applied for interlocutory injunctions. The Plaintiff caused the summons to be served on the Defendant by sending it by post to his address for service on 18th July. And when I say he caused the summons to be served by post, I mean registered post.

2. The Defendant did not attend the hearing before the judge on 24th July, when the injunctions which were sought were granted and costs were awarded on a solicitor and own client basis. The registered envelope and the summons which it contained were subsequently returned to the Plaintiff's solicitors undelivered.

3. In the meantime, however, the Defendant had been out of Hong Kong between 17th and 24th July. On 25th July, he learned about the hearing when he spoke to the Plaintiff's solicitors and discovered that injunctions had been granted. He did not, however, learn about the award of costs. By letter of the same day, the Defendant asked the Plaintiff's solicitors to serve any future documents by ordinary post or by delivery to him personally at his office.

4. By registered letter dated 30th July, the Plaintiff's solicitors sent the Defendant a copy of the order they had obtained. The letter said this was for information only, but I think that nothing turns on that. Again this letter was returned unclaimed.

5. On 19th December, 1985, the Plaintiff's solicitors obtained an appointment to tax their bill. Again by registered letter, dated 6th February, they sent a copy of the appointment and the bill to the Defendant. The appointment was on 19th February. Again the Defendant did not attend, and again the registered letter was subsequently returned to the Plaintiff's solicitors.

6. On 21st April, the Plaintiff's solicitors delivered by hand to the Defendant a copy of the allocatur. For the first time, the Defendant was aware of the order for costs that had been obtained and that they had been taxed.

7. By summons dated 2nd May, the Plaintiff sought to have the allocatur set aside for failure to comply with O62, r.21(1). And By summons dated 17th May, the Plaintiff further sought to have the judgment (as it was expressed in the summons, but, of course, it was an order) of 24th July 1985, set aside on the ground that the Plaintiff failed to give 2 clear days notice of its intended application, in accordance with O32, r.3.

8. In support of his application to set aside the injunctions and order for costs, the Defendant relies on Order 2. He claims that there having been an irregularity, the order should be set aside. The irregularity depends upon whether or not service of the Plaintiff's summons was properly effected.

9. The leading case on service by post is the A /S Catherineholm v Noreguipment Trading Ltd (1972) 2 All E.R. 538. In that case, Lord Denning M.R., after reviewing the authorities and Section 26 of the Interpretation Act 1889 which for these purposes is identical to Section 8 of the Interpretation and General Clauses Ordinance, said as follows. This was at p. 542 :

"

Accordingly when the plaintiff sends a copy of the writ by prepaid post to the registered office of the company, and it is not returned - and he has no intimation that it has not been delivered - it is deemed to have been served on the company - and to have been served on the day on which I would ordinarily be delivered. If no appearance is entered in due time, the plaintiff is acting quite regularly in signing judgments.  If the defendant should seek to set aside, he ought to explain the circumstances and go on to show that he has merits, i.e. there is a triable issue. "

10. That case, of course, concerned ordinary post, and it also concerned judgment in default under Order 13. But, in my view, that case lays down a principle which is of general application to service by post. Had the Plaintiff served the summons by ordinary post in the present case, there would be no question but this service would have been regular.

11. Does registered post, therefore, make any difference? The Defendant suggests it is common knowledge that a registered letter cannot always be delivered, either at first attempt or at all, that a notification card may have to be left at the address and that, even then, the letter may not be collected. This is emphasised by letters from the Post-Master General exhibited by the Plaintiff. In reality, therefore, registered post takes longer, and there can be no certainty that such a letter has been delivered until the sender receives notification of service from the Post Offices.

12. It seems to me, however, that the same consideration applies to ordinary post. It is not unknown as the Catherineholm case makes clear, for letters sent by ordinary post eventually to be returned undelivered. The Post-Master General's letters, which have been exhibited, show that delivery of a registered letter will be attempted as expeditiously as an ordinary letter. In my judgment, therefore, there is no reason that distinguish between the two types of posting.

13. I find that service of the Plaintiff's summons was regular, and the order regularly obtained. To have it set aside, merits must be shown. For I can see no reason to distinguish between O13, r.9 and O2, r.1(2), both of which confer a discretion on the court which may be exercised on terms. The Defendant has shown no merits. The summons to set aside the order of 25th July last is therefore dismissed. I have no need to consider the point about waiver which was raised.

14. It follows that in like manner the appointment to tax was regularly served. There are no merits on which the allocatur should be set aside. However, the Defendant points out that the order of 25th July required personal service under O45, r.7. As that was not done, he contends he had no proper notice of the order.

15. My interpretation of Order 45 is that personal service is only required under rule 7 if it is intended to enforce injunctive relief under rule 5; that was not the case here. In the circum-stances, the Defendant's summons to set aside the allocatur is also dismissed.