LAU MUK FAT (Suing as the Manager of LAU SHAU WO TSO) v. WONG KWOK WA AND OTHERS

HCA 1006/2017

[2020] HKCFI 2789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1006 OF 2017

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BETWEEN

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DECISION

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1.  This is the application by the plaintiff (“P”) by Summons of 12 March 2020 (the “Summons”) for default judgment against all the defendants (“D1” to “D12”, and collectively “Ds”).

2.  The issues are whether service of the Writ herein has been validly effected, and whether, given the history of the disputes between the parties and the nature of the relief sought (which include Declarations), this is in any event an appropriate case for default judgment to be granted.

3.  Mr Kenneth C L Chan together with Mr Billy Ma appear for P.  Mr Tony Chow appears for D1.  Ms Evelyn Cheng appears for D2 to D12.

The parties

4.  P is the Manager of Lau Shau Wo Tso (the “Tso”), a tso within the meaning of s 15 of the New Territories Ordinance, Cap 97.  It owns land in the New Territories.

5.  D1 is a developer.

6.  D2 to D12 are indigenous villagers, or dings.

Background facts

7.  The disputes concern the development of ding houses in the New Territories.

8.  Back in 1994, P as manager on behalf of the Tso entered into a development agreement with D1 (the “Development Agreement”)[1]. Under the same, development and construction of small village houses were contemplated.  The Tso would provide land, whilst D1 would be responsible for procuring dings (D2 to D12 being some of the dings subsequently procured), assigning the land to the dings, making the relevant applications to the government, and the building and construction of small houses.  The completed houses would be split amongst the Tso and D1 in the ratio of 40:60, and would be selected by the Tso and D1 following an agreed selection mechanism (the “Selection Mechanism”).

9.  Ultimately, 17 ting houses have been built.  6 were allocated to the Tso in 2011 (the “6 Houses”).  The other 11 have been called the “11 Unallocated Houses” or the “Other 11 Unallocated Houses”, and the lots of land on which there were build the “Other Unallocated Building Lots”, which terms I adopt as appropriate.

10.  On the bases of the agreed 40:60 split and Selection Mechanism, the Tso should arithmetically be allocated 6.8 houses.  P says therefore that despite the allocation of the 6 Houses, the Tso still have some interest over the Other 11 Unallocated Houses.  

11.  Disputes eventually arose between the parties.  They have resulted in no less than 3 sets of proceedings before the High Court.  They are as follows.

The Main Actions

12.  In late 2011 and early 2012, P commenced HCA 1879/2011 (the “2011 Action”, and the Writ thereof the “2011 Writ”), HCA 896/2012 and HCA 897/2012 (collectively the “Main Actions”) against D1 and some dings (not any of D2 to D12 in the present case).  His claims are for, and as summarized by Mr Chan[2], inter alia:

(a) D1’s breaches and delay etc in the Development Agreement (and hence the Tso’s loss of use / rental income etc);

(b) D1’s misrepresentations (which misled P into selecting the 6 Houses, which P says are the most inferior ones);

(c) Specific performance against D1 to select his 9 houses out of the 11 Unallocated Houses, and to assign and transfer to the Tso its interest in 0.8 houses (ie 40% interest of and in 2 of the 11 Unallocated Houses) (§(6) of the prayer)[3];

(d) the return and assignment of the substantial unused parts of the Tso’s lots, and declaration of certain grant of easement;

(e) a Declaration that P is “entitled to 2/11 shares on the other Unallocated Building Lots and houses erected thereon and an order that there be charge in favour of [P] of 2/11 shares on the other Unallocated Building Lots and houses erected thereon” (§(7) of the prayer);

(f) a Declaration that “each of the 2^nd to 13^th Defendants respectively holds D2’s to D13’s Lots on trust for the Tso” (§(10) of the prayer).

13.  In each of those 3 Actions, a Defence and Counterclaim has been filed.  Specifically in the 2011 Action, D1 seeks:

(a) a declaration that inter alia the Development Agreement is “unlawful, illegal, contrary to public policies and hence unenforceable and void”;

(b) an injunction restraining P from executing, performing or carrying out inter alia the Development Agreement;

(c) a declaration that P is estopped from alleging any breach of the Development Agreement on the basis of D1’s delay in its performance; and

(d) a declaration that the Tso is estopped from asserting any interest in the 11 Unallocated Houses.

14.  The Main Actions have been ordered to be heard together[4]. They have not yet been set down to be tried.  Both sides are blaming the other side for that.  The next Case Management Summons is scheduled to take place on 22 December 2020[5].

HCA 1006/2017 (“Present Action”)

15.  Then, on 26 April 2017, P took out the Writ herein (the “2017 Writ”) and commenced the Present Action against D1 and 11 other dings (ie D2 to D12).  Those 11 other dings were, until a sale in favor of D1’s wife by 9 of them in April 2017 in circumstances very much in dispute, the registered owners of the 11 Unallocated Houses.

16.  The 2017 Writ is indorsed with a Statement of Claim bearing the same date (the “2017 SOC”):

(a) In the 2017 SOC, P pleads primarily the same facts relied upon by P in the 2011 Action;

(b) At §54 and 55 thereof, P pleads:

“ 54. By reason(s) of [D1’s] above breach(es) / wrongdoings, [P] issued the [2011 Action] on 3 November 2011 against inter alia [D1] (and other villagers who held the land on trust for [P]) for inter alia the breach(es) of the Development Agreement, the 1st Allocation Agreement, the 2^nd Allocation Agreement, misrepresentation, breach of trust etc., and claim against them for specific performance(s), and for all loss and damage arising thereof, etc.

55. [P] shall apply to the Court for leave to set the case down for trial in respect of the [2011 Action] in due course.”

(c) At §60, P pleads that D2 to D12 held the 11 Unallocated Houses “as nominee and/or agent of [D1]… for the purpose of the Development Agreement”, and that “[D1] had and still has full control and possession of all the Other 11 Unallocated Building Lots (and the 11 houses erected thereon)”;

(d) P then pleads, at §61, that by reason of the forgoing, D2 to D12 held the legal titles of the 11 Other Unallocated Building Lots (together with the Other 11 Unallocated Houses thereon) on resulting and/or constructive trust for P and D1;

(e) P seeks a variety of relief, that:

(i) Against D1:

“ (a.) An Order that [D1] on his capacity (as the principal of [D2] to [D12]) do procure the assignment and transfer to [P] / Tso of the 40% interest and benefit of and in the 2 Remaining Houses on, and of and in, the 2 Remaining Building Lots free from encumbrances;

(b.) Damages for the loss of use of the 40% interest and benefit of and in the 2 Remaining Houses …

(c.) An account of any benefits and/or profit(s) derived from the 2 Remaining Houses … and an Order that [D1] do pay to [P] the profits(s) …

(d.) Pending the due execution of the aforesaid assignment and transfer to [P] / Tso:

(i) [D1] must not … sell and/or dispose of any of the Other 11 Unallocated Houses …

(ii) [D1] must not …create … encumbrance(es), which may affect the title(s) of the Other 11 Unallocated Houses …

…”

(ii) Against D2 to D12:

“ (f.) A Declaration that [D2] to [D12] are respectively holding the legal titles of the Other 11 Unallocated Building Lots (together with the Other 11 Unallocated Houses thereon) … on resulting and/or constructive trust for [P] and [D1] (on the proportion of 40% of 2/11 share (for [P]) and 9/11 plus 60% of 2/11 share (for [D1]);

(g.) An Order that [D2] to [D12] do assign and transfer … the 40% interest and benefit of and in the 2 Remaining Houses on the 2 Remaining Building Lots to [P]. i.e. the 40% interest and benefit of and in 2 out of the Other 11 Unallocated Building Lots (and the houses erected thereon);

(h.) [D2] to [D12] do assign and transfer … the 60% interest and benefit of and in the 2 Remaining Houses on the 2 Remaining Building Lots, and the 9/11 interest and benefit of and in 9 out of all the Other 11 Unallocated Building Lots (and the houses erected thereon), to [D1];

(i.) Pending the execution of the aforesaid assignment and transfer to [P]:

(i) [P] is entitled to 40% of the 2/11 shares on all the Other 11 Unallocated Building Lots (and the 11 houses erected thereon);

(ii) [P] is entitled to a charge and/or lien over all the Other 11 Unallocated Building Lots (and the 11 houses erected thereon) for his proprietary interest of 40% of the 2/11 shares thereof;

(iii) [D1] must not …cause to be sold and/or disposed of any of the Other 11 Unallocated Houses on, and, the Other 11 Unallocated Building Lots;

(iv) D1 must not … create or take any step to create encumbrance(es), which may affect the title(s) of the Other 11 Unallocated Houses on, and, the Other 11 Unallocated Building Lots;

(v) [D2] to [D12] must not … sell and/or dispose of the Other 11 Unallocated Houses on, and, the Other 11 Unallocated Building Lots;

(j.) Further or alternatively, [P] is entitled to 40% interest and benefit of and in the 2 Remaining Houses on, and of and in, the 2 Remaining Building Lots free from encumbrances; and [P] is entitled to select the same from the Other 11 Unallocated Houses on the Other 11 Unallocated Building Lots;”

(f) I set out the prayer in the 2017 SOC nearly in full because those variety forms of relief are what P is now seeking default judgment for.

HCA 802/2019 (“The 2019 Action”)

17.  By letter of 12 February 2018 (the “12/2/2018 Letter”) from Messrs Cheung, Chan & Chung (“CCC”, solicitors for D1) to Messrs Hong Lee & Co (“HL&Co”, solicitors for P), D1:

(a) referred to the Main Actions;

(b) selected 9 ding houses out of the Other 11 Unallocated Houses (the “9 Selected Houses”);

(c) indicated that after the selection, he agreed to share with P the interest and benefit of the remaining 2 houses;

(d) said at the last paragraph that “For the avoidance of doubt, nothing herein contained shall prejudice to [D1’s] Amended Defence Counterclaim filed herein”.

18.  According to the land search records, D2 and D5 to D12 each entered into a sale and purchase agreement dated 21 April 2017 selling the 9 Selected Houses to D1’s wife (the “Sales of the 9 Houses”) (and that was the sales I have mentioned in §15 above).  The related assignments were effected on 6 July 2017. 

19.  On 7 May 2019, P commenced HCA 802/2019 (ie the 2019 Action). As can be gleaned from the Statement of Claim indorsed on the Writ:

(a) P is again the only plaintiff;

(b) D1 to D12 are the same as those in the Present Action.  D14 is D1’s wife;

(c) P relies on the matters pleaded in the Main Actions;

(d) P relies on the matters pleaded in the Present Action;

(e) P refers to the Sales of the 9 Houses and claims inter alia that the related agreements had been backdated, and that the 9 assignments were “in fact a ‘sham’ and/or only ‘fraudulent transactions’ ”[6];

(f) P refers to the 12/2/2018 Letter and claims that “the purported ‘selection’ under the [12/2/2018 Letter] is false, fraudulent, not bona fide, and/or does not amount to a valid or binding selection under the Development Agreement…”[7];

(g) P pleads against D1, D2, D5 to D12 and D14 the causes of action of conspiracy to defraud, dishonest assistance, and knowing receipt;

(h) at §(25) of the prayer, P seeks that “there be an Order for   consolidation of this action and the HCA 1006 of 2017 proceedings …”.

Whether service of the 2017 Writ on D1 valid

20.  I consider now whether the service of the 2017 Writ on D1 is a valid one.  I will consider the validity of the service upon D2 to D12 separately.

21.  The relevant affirmation of service is that of Mr Lee Siu Hong (“Mr Lee”) filed on 20 January 2020 (“Lee/Aff#1”).   Mr Lee is the sole proprietor of HL&Co.

22.  According to Mr Lee:

(a) at §3 of Lee/Aff#1, the 2017 Writ was on 28 April 2017 via registered post served upon D1 at an address at Tai Po Tsai Village[8] (which Mr Lee calls “D1 Address”) under the cover of a letter dated 28 April 2017 (the “Covering Letter”);

(b) at §§4 and 5 of Lee/Aff#1:

“ 4. D1 Address was the last known address of [D1] used in the [2011 Action] in which [P] is the plaintiff and [D1] is the first named defendant who is represented therein as herein by [CCC]. [D1] never gave any notice of change of address in [the 2011 Action].

5. D1 Address was [D1’s] address and was, as such, the last address of [D1] known to [P] for the purposes of service of the [2017 Writ] on [D1]. A letter written by [CCC] to the Post Office dated 20^th September 2018 described hereinbelow effectively confirmed this. Whether or not [D1] was using D1 Address as his permanent residence at the time is of no significance.” (emphasis added)

23.  Mr Lee has not clarified what he meant by saying in §4 of Lee/Aff#1 that D1 Address was D1’s last known address “used in” the 2011 Action.

24.  At §15(2) of his written submissions, Mr Chan, with reference to §4 of Lee/Aff#1, submits that:

“ [D1’s] last known (‘D1 Address’) was extracted from and used by him in the earlier [2011 Action], and he never gave any notice of change of address in the 2011 Action …” (emphasis added)

25.  Mr Chan has not clarified in his written submissions as to what he meant by the words “used by him”.

26.  In the course of the hearing, I sought clarifications from Mr Chan on the above.  Having taken further instructions, Mr Chan confirmed that by saying at §4 of Lee/Aff#1 that D1 Address was “the last known address of [D1] used in” the 2011 Action, Mr Lee meant merely that D1 Address was the address which P (or his solicitors) put down in the 2011 Writ as D1’s address. 

27.  The fact that D1 Address was put down by P (or his solicitors) on the 2011 Writ as being D1’s address constitutes little proof that D1 Address was in fact D1’s usual or last known address for the purpose of effecting service of the 2017 Writ.  There is no evidence before me that P (or his solicitors) was, back in 2011, correct in adopting D1 Address as D1’s address on the 2011 Writ. The basis of P’s case in this regard is circular.

28.  The above should also be read and understood in the context of D1’s unopposed evidence that service of the 2011 Writ was not effected upon him at D1 Address, but was accepted by his solicitors on his behalf.  At §28[9] of affirmation in opposition (“D1/Aff”), reciting §§8-10 of his earlier affirmation filed in HCMP 944/2018, D1 says that:

“ 8. First of all, I say definitely that up to the date I have never received the Covering Letter (let alone any enclosures therewith).

9. By the time the [2017 Writ] was issued by [P] viz 26^th April 2017, I no longer lived at the [D1 Address].

10. The fact that [D1 Address] was extracted from the Amended Writ in the 2011 Action in neither here nor there.  TPY never served on me any sealed copy of the Writ in the 2011 Action.  Nor did TPY ever serve on me any sealed copy of the Amended Writ in the 2011 Action.  It was only after Norman Yeung replacing TPY (as solicitors on the record acting for [P] in the 2011 Action) that Norman Yeung then proceeded to serve the Amended Writ in the 2011 Action on me, not at [D1 Address] but through my solicitors CCC accepting service on my behalf.”

29.  There is further evidence that the Covering Letter (together with the enclosures) sent to D1 Address had in fact not been claimed by the addressee, but was sent to the Dead Letter Office and subsequently destroyed[10]:

(a) By letter of 20 September 2018, CCC on behalf of D1 wrote to the Postmaster General and made enquiry as to whether the delivery of the Covering Letter had been successful;

(b) I add that that was the letter which Mr Lee says (at §5 of Lee/Aff#1) “effectively confirmed” that D1 Address was D1’s last known address.  I do not see how that letter has confirmed that;

(c) By letter of 24 September 2018 (the “Postmaster General’s Reply”), the Postmaster General replied and said that:

“ According to our records, delivery of the item was attempted on 2 May 2017 without success. The addressee was notified to collect the item at Ngau Chi Wan Post office. However, the item was not collected within the retention period and was subsequently returned to Sender due to the reason of ‘unclaimed’ on 20 May 2017.

As per our normal procedure, if there is sender address on the item, it would be returned to sender.  If not, it would be transferred to our Dead Letter Office. The Item was sent to the Dead Letter Office on 24 May 2018 and it was disposed of on 12 February 2018.”

(d) The contents of the Postmaster General’s Reply have raised one further issue;

(e) At §10 of Lee/Aff#1, Mr Lee says:

“ To the best of my knowledge, information and belief, the envelopes each containing the Writ Documents addressed to [D1] to [D12] have not been returned through the dead letter post.”

(f) According to the Postmaster General’s Reply, if there is sender address on an item which cannot be delivered, the normal procedure is that the item would be returned to the sender;

(g) The fact that the parcel addressed to D1 Address was sent to the Dead Letter Office suggests that there was no sender address on it;

(h) If that is indeed the case, one queries why HL&Co did not put down any sender address on the parcel.  If there was indeed no sender address on it, one queries further the value of the statement that the 2017 Writ (and the related documents) have not been returned through the dead letter post to HL&CO;

(i) In the course of the hearing, I seek clarification from Mr Chan as to whether there was any sender address on the parcel addressed to D1 Address. I did not receive any confirmation either way.

30.  I note further these matters.  At the time when the Present Action was commenced, P and D1 were and had been litigating over the Main Actions in relation to the same subject matter.  D1 was represented.  P himself pleads in the 2017 Writ that it would apply to set down the 2011 Action for trial.  The Main Actions and the Present Action arose from largely common facts.  There is no evidence before me as to what D1 would have to gain by ignoring service of the 2017 Writ.  I note further that P had made no attempt to approach CCC to ascertain whether they were prepared to accept service of the 2017 Writ on behalf of D1. 

31.  In conclusion, there is no evidence before me that D1 Address was D1’s usual and last known address for effecting service of the 2017 Writ.  I have no reason not to accept D1’s evidence that at the material time, he was no longer living there, and that he did not receive the 2017 Writ.

32.  Mr Chan submits that D1 must have had knowledge of the Present Action.  But given the bad mode of service, any knowledge which D1 might subsequently have on the Present Action would not in my view render the service good and effective.  Mr Chan has not produced any authority in support of that possibility.

33.  For the reasons set out above, I rule that the attempted service of the 2017 Writ on D1 was bad.

Whether service of the 2017 Writ on D2 to D12 valid

34.  I next consider whether the service of the 2017 Writ on D2 to D12 was valid.

35.  As I have summarized above, D2 to D12 were, until the Sales of the 9 Houses by 9 of them in April 2017, the registered owners of the 11 Unallocated Houses.

36.  According to Mr Lee[11], the 2017 Writ was served on each of D2 to D12 at the relevant lots which they held.

37.  I have considered the scheme under the Development Agreement.  Each of D2 to D12 was only the ding procured by D1 for the purpose of development. Whilst they had been assigned the relevant lots, that was again done for the purpose of the Development Agreement.  There is otherwise no evidence that they lived in or occupy the lots.  The likelihood is that they did not.  

38.  I however accept Mr Chan’s legal submissions[12] on the meaning of “address”, citing Hong Kong Civil Procedure 2021, Vol 1 at §10/1/12, that:

“ … The word ‘address’ is not confined exclusively to a person’s residence. The essence is a location where the person may be reached or where contact or communication in written form, such as by letter, could be established. (AIA International Ltd v Cheng Chung Sing (unrep., DCCJ 804/2016, [2017] HKEC 1011 ); Hou Tsun Tat v Wong Wai Chung (unrep., DCPI 96, 439 & 476/2015, [2017] HKEC 2348))…”

39.  I note also that in respect of D2 and D5 to D12, in the Stamping Request forms dated 11 May 2017[13] submitted to the IRD, the addresses at which the 2017 Writ was served upon them were described as their postal addresses.

40.  I regard also as important that none of D2 to D12 has filed any evidence disputing the validity of the service.

41.  On balance, I accept that the service of the 2017 Writ on D2 to D12 was valid.

Exercise of discretion

42.  As the 2017 Writ contains claims not mentioned in Order 13, rules 1 to 4 and Order 19, rules 2 to 5, the present application is governed by Order 19, rule 7(1).  Under that rule:

“ … the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

43.  The parties accept, and it is clearly correct in my view, that whilst Order 19 rule 7(1) uses the words “the Court shall”, “the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment …” — see Hong Kong Civil Procedure 2021, Vol 1, paragraph 19/7/13.  It is further stated at paragraph 15/16/2 that:

“ The power to make binding declaration of right is a discretionary power ... A declaration can only be made after proper argument and cannot be made merely on admissions by the parties whether in pleadings or otherwise ... nor in default of compliance with rules of court.”

Similarly, it is stated at paragraph 19/7/20 that:

“ It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently …”

44.  On the other hand, as has been explained at paragraph 15/16/2 of Hong Kong Civil Procedure 2021, Vol 1:

“ ...the rule of the court that a declaration will not be granted when giving judgment by consent or in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled; …” (See also to the same effect paragraph 19/7/20.)

45.  Mr Chan further accepts, and in my view also correct, that whilst the consideration of the Court is confined to what a plaintiff appears entitled to “on his statement of claim” so that the Court cannot receive any evidence on merits, the Court may receive evidence on otherwise how the court should exercise its discretion, and this is particularly so when declaratory relief is involved — and see Fung Shek Wa v Chang Lai Yue, unrep, HCA 2258/2013 (18 September 2014).

46.  I point out first of all the obvious, that P is seeking, amongst other forms of relief, binding declarations on legal rights and titles over land.  I have set out above the prayer pleaded in the 2017 SOC.

47.  The discretion of this Court engaged.

48.  Mr Chan highlights at §32 of his written submissions that the practice of the court not granting declaratory relief on default may be departed from in order to do fullest justice to P.  He then submits at §33 that:

“ P submits that the Tso is entitled to the relief sought under the [2017 SOC]. It is the common ground (or at least challenged [sic] (unchallenged?) evidence that the subject houses at all material times have been rented out for incomes, and the declaration sought under the [2017 SOC] is necessary for P to seek damages for the loss of the TSO’s interest and benefit of and in the TSO’s entitlement out of the said houses and the building lots over the years, and the account of any benefit and/or profits derived thereunder.”

49.  In my view, whilst those reasons may explain why P is seeking declaratory relief, they do not even start to justify why any such relief should be granted at this stage in default. 

50.  On the other hand, there are in my view overwhelming reasons why the default judgment sought should not in the exercise of this Court’s discretion be granted.

51.  The Main Actions are still on foot.  The Main Actions and the Present Action arose out of primarily the same set of facts.

52.  Some forms of the relief sought in the Main Actions and the Present Action overlap — see eg §6 of the prayer in the 2011 Writ and §(a.) of the prayer in the 2017 SOC. 

53.  In the Main Actions, the legality and hence enforceability of the Development Agreement is challenged.  It is D1’s case that it is unenforceable and void.  It is a fundamental challenge.  In addition, various estoppels against P have also been raised.

54.  P is seeking in the Present Action declaratory relief in default on a set of facts which is subject to fundamental challenges in the Main Actions to be tried. 

55.  The grave concern is that, if this Court were to grant any judgment and any binding declaration of rights in default at this stage, the basis upon which this Court does so might ultimately be found to be inconsistent with the conclusions which another Court reaches after trial of the Main Actions.

56.  In particular, there is a risk that the Development Agreement (which would necessarily form the basis of any judgment which this Court might grant at this stage in default) could be found after trial of the Main Actions to be an illegal one.

57.  The risk is a real one, and is one impossible to gauge because this Court, when considering the Summons, is required by law to consider on merits only what P appears entitled to “on his statement of claim”.

58.  As P has himself said at §24 of his affirmation filed in support of the Summons (and repeated at §63 as he thinks it is important):

“ The Development Agreement is the cornerstone of every dispute, every litigation and every registration of document in the Land Registry flowing therefrom. Thus, the [Main Actions] are the only forum and jurisdiction where issues of the Development Agreement can properly and legally be determined. The final judicial determination of the Development Agreement is the authority on which matters peripheral to the Development Agreement can be legally settled. It is thus essential that the [Main Actions], as mother of all actions, be set down for trial as soon as possible.”

59.  Yet, whilst the Main Actions are still on foot, and when there has not yet been any judicial determination of the Development Agreement, P is seeking default judgment under the Present Action.

60.  In the above regard, Mr Chan submits that by making the selection pursuant to the 12/2/2018 Letter, D1 has been barred from running the illegality defence.

61.  I do not accept that submissions.  In the 12/2/2018 Letter, it was specifically said that nothing therein “shall prejudice [D1’s] Amended Defence Counterclaim filed herein”.

62.  The bottom line is this.  Mr Chan’s contention that D1 has been barred from running the illegality defence could be found upon trial of the Main Actions to be correct.  That however is only something which the trial judge after trial can decide.  It is impossible for this Court in the course of an application for default judgment to so conclude.

63.  I note further that as part of the relief sought in the Present Action, P is seeking an account.  Ds would be obliged to undertake the exercise, and effect the profits found due immediately if this Court were to grant any default judgement.  That would in my view be clearly undesirable when the Main Actions have not been tried.

64.  There is further no urgency in P getting any judgment.  Service of the 2017 Writ was effected (or attempted to be effected) in April or early May 2017. The present Summons was only taken out almost 3 years later in March this year.

65.  For the reasons set out above:

(a) in the case of D2 to D12, despite my finding that the service of the 2017 Writ on them was valid, I refuse in the exercise of my discretion to grant the default judgment sought; and

(b) in the case of D1, even if I had found the service of the 2017 Writ on him to be valid, I would still in the exercise of my discretion have refused the Summons.

Disposition

66.  For the reasons set out above, I dismiss the Summons.

HCMP 944/2018

67.  I record that Mr Chow has made reference to the Decision Madam Recorder Linda Chan (as Her Ladyship then was) handed down on 28 June 2019 in HCMP 944/2018.  Mr Chow submits that as a result of certain findings made therein by the learned Recorder, P is precluded by the doctrine of issue estoppel to argue some of the points which Mr Chan has taken in the present application on P’s behalf.

68.  Mr Chow has confirmed that it is not his position that the doctrine of issue estoppel would prelude this Court from considering the question of service afresh.  In the end, I have reached my decisions above independent of the learned Recorder’s Decision.  The question of issue estoppel does not arise.

Costs

69.  I make a costs order nisi that P should bear the costs of the Summons, to be assessed summarily.  Ds are to lodge their statements of costs within 7 days of the date hereof, and P to lodge his objections within 7 days of receipt.  Any party who seeks any variation of the costs order nisi may also lodge submissions within 7 days from the date hereof, submissions in response within 7 days of receipt, and reply within 7 further days.  Both the summary assessment and any application for variation will be disposed of on the papers.