WONG SAU WING v. TSOZ CHUNG KAI

DCCJ 3762/2025

[2026] HKDC 175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3762 OF 2025

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REASONS FOR DECISION

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Introduction

1.  By summons filed on 1 August 2025 (“the Summons”) pursuant to Order 13 rule 6 of the Rules of the District Court (Cap 336H, sub leg) (“RDC”), the Plaintiff seeks final judgment on liability be entered against the Defendant in the following terms:-

(1)  There be a declaration that the Defendant was in wrongful repudiation of an Agreement for Sale and Purchase dated 28 March 2025;

(2)  The Defendant do pay the Plaintiff the sum of HK$295,000.00 being deposit paid by the Plaintiff;

(3)  The Defendant do pay the Plaintiff interest on the sum of HK$295,000.00 at the rate of 8.25% from 7 July 2025 to the date of judgment and thereafter at judgment rate until return of the deposit in paragraph (2) above; and

(4)  The Defendant do pay the Plaintiff costs on liability, to be taxed if not agreed.

2.  The Plaintiff further claims damages pleaded in prayer (3) in the Statement of Claim be assessed.

3.  At the hearing, the Plaintiff was represented by his solicitor Mr Edwin Ng.  The Defendant acted in person but was absent. Mr Ng frankly informed the Court that notice of this adjourned hearing was not served on the Defendant due to the Plaintiff’s omission. Mr Ng invited this Court to adjourn the Summons to another hearing so that the Defendant could attend. However, as indicated during the exchanges with Mr Ng, I intended to dismiss the Summons on merit in order to save time and costs including those of the Plaintiff. Therefore, I ordered the hearing to proceed in the absence of the Defendant.

4.  Moreover, the Plaintiff did not lodge and serve any skeleton submissions and list of authorities for this hearing. This Court referred to Part B of the Practice Direction 5.4 that skeleton submissions and list of authorities are required for contested interlocutory summonses fixed before a Judge for less than 30 minutes. As I set out below, the Defendant applied for legal aid to defend these proceedings. This Summons was undoubtedly contested.

5.  At the end of the hearing, this Court dismissed the Summons for the reasons set out below.

Plaintiff’s Pleaded Case

6.  In a nutshell, the Plaintiff sues the Defendant for declaratory relief, return of deposits and damages by reason of the transaction of a landed property (“the Property”) which fell through.

7.  The Plaintiff’s case is that by a provisional agreement for sale and purchase dated 14 March 2025 (“PSPA”), the Plaintiff as purchaser agreed to purchase and the Defendant as vendor agreed to sell the Property for HK$2,950,000. Pursuant to the PSPA, completion shall take place on or before 13 June 2025, and the Defendant shall on or before the date of completion pay off or redeem or vacate the registration of a Loan Agreement registered with the Land Registry.

8.  The parties entered into a formal agreement (“Formal Agreement”) which, inter alia, affirmed the date of completion and required the Defendant to give, show and prove good title in accordance with sections 13 and 13A of the Conveyancing and Property Ordinance (Cap 219). The Formal Agreement further stipulated that the Property was subject to a Mortgage/Legal Charge registered with the Land Registry, and also repeated the Defendant’s duty to pay off or redeem or vacate the registration of the said Loan Agreement by the date of completion.

9.  The Plaintiff duly paid the initial deposit of HK$100,000 and the further deposit of HK$195,000.

10.  On or about 25 April 2025, the solicitors for the Plaintiff was informed that a Charging Order: Notice to Show Cause had been granted against the Defendant in another action of this Court and would be registered against the Property at the Land Registry.

11.  The Plaintiff raised requisitions with the Defendant regarding the title of the Property including but not limited to the vacation of registration of the said Loan Agreement and the said Charging Order. Correspondence then ensued between solicitors for the Plaintiff and solicitors for the Defendant, and the Plaintiff regarded the Defendant as failing his duty to show, prove and give good title to the Property and his duty to answer the requisitions satisfactorily.

12.  The transaction eventually fell through and the Plaintiff accepted the Defendant’s repudiation of the PSPA and the Formal Agreement on 17 June 2025 and demanded the return of the deposits.

13.  On 18 June 2025, solicitors for the Defendant claimed for the first time that the parties had, as proposed by the Plaintiff, agreed to postpone the date of completion to 23 June 2025. The Plaintiff denied.

14.  The Plaintiff claims a declaration that the Defendant was in wrongful repudiation of the Formal Agreement, the return of deposits and damages for stamp duty, conveyancing legal costs and disbursements, fee payable to HSBC for cancellation of mortgage loan facility or failure to draw down the loan on a stipulated date, pre-action legal costs and estate agent commissions.

Service of Writ of Summons and Statement of Claim

15.  Having read the Affirmation of Service of Lai Tak Hong filed on 1 August 2025, this Court was satisfied that the writ of summons specially indorsed with the statement of claim was served by the Plaintiff on the Defendant by insertion of the same into the letterbox of the Defendant’s last known address in Tuen Mun on 7 July 2025, and that in the opinion of the Plaintiff the writ would have come to the Defendant’s knowledge within 7 days. According to Order 10 rule 1(3)(a) RDC, the date of service shall be deemed to be 14 July 2025.

Discussion

16.  Next, according to Order 12 rule 5 RDC, the Defendant had to file his acknowledgment of service of the writ of summons on or before 27 July 2025.

17.  The Defendant did not file any acknowledgment of service. However, this is not the end of the matter.

18.  Order 13 rule 6(1) RDC provides that where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.

19.  In this action, as the Plaintiff seeks, inter alia, declaratory relief, Order 13 rule 6(1) RDC is applicable and, upon due service of the writ of summons and statement of claim, the Plaintiff has to proceed with the action as if the Defendant has given notice of intention to defend.

20.  In other words, the Plaintiff cannot enter default judgment based on the Defendant’s failure to file and serve an acknowledgment of service and Order 13 rule 6 RDC alone.

21.  Order 18 rule 2(1) RDC requires the Defendant to file and serve his defence before the expiration of 28 days after the time limited for acknowledging service of the writ, ie 24 August 2025. For the avoidance of doubt, there is no provision in RDC similar to Order 18 rule 5 of the Rules of the High Court (Cap 4A) which provides that pleadings shall not be served during the summer vacation.

22.  Meanwhile, on 1 August 2025, the Plaintiff took out the Summons returnable on 29 September 2025.

23.  This Court noticed that the Plaintiff relied on Order 13 rule 6 RDC only. For reasons stated above, the Plaintiff’s present application for default judgment must fail.

24.  Mr Ng invited this Court to adjourn the Summons so that the same could be cured by introducing Order 19 rule 7 RDC as amendment. Nonetheless, as I set out below, the fact that the Defendant filed a 1-page homemade Defence on 25 September 2025 meant that no default judgment could be entered upon Order 19 rule 7 RDC in any event. As a result, this Court refused to adjourn the Summons.

Defendant’s Filing of Defence Out of Time and Without Retrospective Leave

25.  Since the Summons, it has transpired that:-

(1)  no defence was filed and served by the Defendant by 24 August 2025.

(2)  a memorandum of notification of an application for legal aid was filed by the Defendant on 12 September 2025. On 17 September 2025, Deputy District Judge Alan Yung directed that these proceedings shall be stayed for 42 days, ie from 12 September 2025 until 23 October 2025, unless otherwise ordered by the Court.

(3)  on 18 September 2025, the Plaintiff’s solicitors made an ex parte application for restoring or refixing the hearing of the Summons.

(4)  on 25 September 2025, the Defendant filed a 1-page homemade Defence in Chinese. Mr Ng informed this Court that the Plaintiff was never served the Defence by the Defendant.

(5)  on 30 September 2025, Deputy District Judge Patrick Siu directed that parties do have liberty to restore the hearing of the Summons on a date to be fixed with 15 minutes reserved.

(6)  on 19 November 2025, the Director of Legal Aid refused the Defendant legal aid.

26.  As stated above, the Defendant, while in default of acknowledgment of service of the writ of summons, filed a 1-page homemade Defence in Chinese on 25 September 2025, saying, in gist:-

(1)  the Property was not a negative equity;

(2)  it was the Plaintiff being in repudiatory breach and therefore he objected to return the purchaser’s deposits; and

(3)  the Defendant was unemployed and had to borrow money to meet his living, and that was the reason he had to sell the Property.

27.  The Defence was filed out of time but during the stay of proceedings ordered by Alan Yung DDJ. The Defendant has made no application for retrospective leave to file and serve the Defence out of time.

28.  A defence served after expiration of the prescribed time but before judgment has been given cannot be disregarded, and will generally prevent the plaintiff from entering judgment, even though it is not served until after the plaintiff has served his summons or notice of motion for judgment under Order 19 rule 7 RDC, but the defendant may be ordered to pay the costs occasioned by his delay. In such a case, the court will have regard to the contents of the defence served out of time, and deal with the case in such a manner that justice can be done. This is the position even when a draft defence consisting of bare denials of the plaintiff’s case is handed to the court, without leave and out of time, upon the hearing of a plaintiff’s motion for judgment and a defendant’s cross summons for time to file its defence. The court may give judgment, but suspend it for a period, directing notice to be given to the defendant’s solicitor. Where the defendant takes out a cross application for the filing of a defence out of time, it is logical to consider first the application for extension of time, because if an extension is given, the application for default judgment falls away. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/4.

29.  In the premises, even if this Court were allowed to consider the Summons on the basis of Order 19 rule 7 RDC, by reason of the Defence, though filed out of time and without retrospective leave, no default judgment would be entered.

Disposition

30.  I dismiss the Summons.

[Submissions on Costs]

31.  Costs normally follow the event. I order that the Plaintiff do pay the Defendant his costs of the Summons, to be taxed if not agreed.