XCHRX TANG TAK HONG v. CHEUNG YAT FUK

HCMP3265/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.3265 OF 1996

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J U D G M E N T

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1. The originating summons in these proceedings was issued on 24 September 1996 by the plaintiff against the defendant claiming that the defendant's title to premises known and registered in the Yuen Long New Territories Land Registry as Lot No.473 in Demarcation District No.114 ("the Property") has been extinguished under section 17 of the Limitation Ordinance, and that the plaintiff has established possessory title to the Property.

2. Evidence was filed by the plaintiff and when the trial came on for hearing, the defendant was absent. Le Pichon J noted that attempts to locate and serve the defendant proved futile and, on the material available before her, made the declarations sought by the plaintiff.

3. The defendant now seeks to be allowed to defend the plaintiff's claim out of time and to set aside the judgment on the basis that he was never made aware of the proceedings or the hearing. Application has been made pursuant to Order 35, rule 2 of the Rules of the High Court, although both Mr Wong for the plaintiff and Mr Lee for the defendant made submissions to me on the basis that Order 13, rule 9 is also relevant.

4. Both sides have filed evidence to the effect that they or others to whom they have let the Property were in occupation at different times over the past 20 years or so. Mr Wong for the plaintiff has made detailed submissions on the evidence and how the evidence filed on behalf of his client is to be preferred to that filed on behalf of the defendant.

5. Clearly, however, I am not in a position to decide the disputed issues of fact as to who may have occupied what, or where, and what activities were done on the land. It is also not appropriate for me to comment on the strength and weaknesses of the evidence where I am satisfied, as I am, that there are different versions as to who was in occupation of the Property. The only proper course, as I see it, is for me to set aside the judgment and order made by Le Pichon J on 9 October 1997 and to grant leave to the defendant to defend this action. I am quite unable, on the papers before me, to, in effect, disregard the evidence filed on behalf of the defendant. I cannot say that the evidence filed on his behalf does not disclose some reasonable prospects of defence, and the full merits can only be determined after the issues are fully ventilated after a trial.

6. I will now hear the parties as to costs and other directions which they may need.

[Submissions from counsel]