Ricacorp Properties Ltd. v. Tang Lai Sheung

DCCJ18949/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 18949 OF 1998

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R U L I N G

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1. Default judgment was obtained by the plaintiff on 19 October 1998. The defendant in the present application is seeking to set aside that judgment on the ground that the writ was not served on her usual or last known address.

2. According to the evidence filed by the defendant, she had all along been living in the address at 7/F, 333 Prince Edward Road. She had made known to the plaintiff that she purchased the flat at Parc Oasis for investment purpose only and that her family and herself had no intention to move and to live in the Parc Oasis address.

3. The defendant's evidence is not challenged by the plaintiff. Indeed, the documentary evidence tends to support the defendant's evidence in this regard. The final reminder for the payment of the commission was sent to the defendant's address in Prince Edward Road. In such circumstances, I do not find that the address in Parc Oasis was the usual or the last known address of the defendant.

4. Mr Lee for the plaintiff rightly conceded that the Parc Oasis address was not the defendant's usual address because she all along had no intention to live there. I also did not accept that it was her last known address. Mr Lee for the plaintiff relied heavily on the fact that the defendant put down the Parc Oasis address as her address in the assignment. However as Mr Lee conceded, that was not conclusive to show that it was the last known address of the defendant. As the plaintiff all along knew that the defendant had no intention to move and to live in that address, one would go too far to say that the Parc Oasis address was the last known address of the defendant.

5. Mr Lee for the defendant also relied on the case of Kwantung International Trust and Investment Corporation Hong Kong Holdings Limited v Yuet Wah Hong Kong Wah Fair Limited & Another [1997] 2 HKC 696 and tried to establish that the defendant might have more than one last known addresses. However in the present case, as the plaintiff all along knew that the defendant lived in the address in Prince Edward Road and had no intention to move in and live in the Parc Oasis address, I do not accept that the Parc Oasis address can even be considered as one of the last known addresses at all.

6. The whole purpose of this exercise, i.e. the serving of the writ, is to bring the defendant to the attention of the proceeding. If Mr Lee's submission is correct, a plaintiff's solicitor, with the full knowledge of the whereabouts of the defendant, can simply ignore the address where the defendant would certainly receive the writ, and just chooses and picks one of the addresses where the defendant may or may not receive the writ. This simply cannot be right.

7. Indeed, the plaintiff should be able to rely on the last known address if the plaintiff did not have knowledge or had very limited knowledge about the whereabouts of the defendant. However, the present case does not fall into such category. In such circumstances, I do not find that the writ had been served on the usual or the last known address of the defendant and the judgment is therefore irregular.

8. According to the latest decision of the Court of Appeal in Chu Kam-lun v Yap Lisa Susanto [1999] 3 HKC 378, the Justices of Appeal there, though refusing to rule whether the English authority of Faircharm Investments Ltd v Citibank International Plc. [1998], The Times, February 20, reflects the law of Hong Kong, nevertheless recognise that the weight of the authority in Hong Kong is where the judgment is irregular, it should be set aside without going into the merits of the defence. The learned Justices of Appeal has considered a long line of authorities and made the said observation.

9. I consider myself bound by the observation of their Lordship and the authorities cited in that case. Therefore, I rule that the defendant can set aside an irregular judgment as of right and the court does not have to concern about the merits of the defence. This would have disposed of the present application. I intentionally do not want to say anything on the merits of the defence so as to prejudice the position of the parties in the subsequent conduct of this case. This is the ruling I make in respect of the present application.