IKOBOX SERVICES LTD v. HKD.COM LTD AND ANOTHER

HCA 562/2024

[2024] HKCFI 2383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 562 OF 2024

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D E C I S I O N

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1.  This is the plaintiff’s (“P”) application by way of Summons (“the Summons”) to enter judgment against the 1^st defendant (“D1”) and the 2^nd defendant (“D2”) (collectively as “Ds”) on the ground that D1 & D2 have failed to file their defence.

2.  Pursuant to Order 13, rule 6 of the Rules of the High Court, Cap. 4A (“RHC”), where a claim of a description not mentioned in rules 1 to 4 of Order 13 of the RHC, if any defendant fails to give notice of intention to defend, a plaintiff, 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.

3.  In this case, according to the affirmation of Wong Leung Wing Raymond, a clerk at P’s solicitors, filed on 3 May 2024, which stated that the Writ of Summons (“the Writ”), with the statement of claim in this case (“SOC”) indorsed on the Writ, was served on D1 and D2 on 25 March 2024.

4.  The Writ is indorsed with a claim of a description not mentioned in rules 1 to 4 of Order 13 of the RHC.

5.  D1 and D2 failed to file and serve their acknowledgement of service of the Writ within the prescribed time, the deadline of which fell on 16April 2024.

6.  Despite the failure by D1 and D2 in filing and serving their acknowledgement of service, pursuant to Order 13, rule 6 of the RHC, P is to proceed with the action as if Ds had given notice of intention to defend.

7.  The deadline of the prescribed time for Ds to file and serve their defence and counterclaim (“D&CC”) fell on 14May 2024.

8.  Pursuant to Order 19, rule 8A of the RHC, on 18July 2024, P sent letters respectively to D1 and D2 giving notice to them to file and serve their D&CC.

9.  The time limit for D1 and D2 to file and serve their D&CC under rule 8A of the RHC expired after the passing of 2 clear days from the date of the said letters, the deadline fell on 21 July 2024.

10.  Ds failed to file and serve their D&CC as at the date of the affirmation.

11.  Having read the affirmation of Wong Leung Wing Raymond, a clerk a P’s solicitors, filed on 16 August 2024, I am satisfied that proper service has been effected on Ds by way of sending the same by pre-paid ordinary post respectively at its registered address and his last known or usual place of abode.  Hence, I am satisfied that Ds had received the sealed copy of the Summons with notice of the place, date and time for them to attend the hearing. They have failed to appear at the hearing of the Summons today.

12.  As the letters had not been returned by the Post Office through the dead letter service, I am satisfied that Ds having received the Writ and SOC choose not to defend the matter.          

13.  I therefore will give leave for P to enter judgment against Ds with costs in favour of P, including the costs of and occasioned by this application, such costs to be taxed if not agreed.