CHAU PUI NGAI v. CHAU YAU ZING AND ANOTHER

HCA 298/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 298 OF 2017

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REASONS FOR JUDGMENT

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Introduction

1.  On 26 September 2017, I granted a judgment in default in terms of the Summons taken out by the plaintiff (“P”)[1], pursuant to Order 13, rule 6 and Order 19, rule 7 of the Rules of the High Court.  I now give reasons as follows. 

Background

2.  In brief, the plaintiff and the two defendants (“D1” and “D2”) are brothers.  The subject matter of P’s action is an apartment under the Home Ownership Scheme (“the Property”) purchased in sole his name with a mortgage loan also in his name as the borrower.  P had financial assistance from D1 in the repayment of part of the mortgage loan.  However, it is P’s pleaded case that any cause of action that D1 may have against him for repayment has already been time-barred.

3.  It is also P’s pleaded case that the Property was first occupied by his mother until her passing away in June 2006.  After that, since March 2008 the Property was occupied by D1 with P’s consent.  Upon the discharge of the mortgage in about February 2014, P wanted to sell the property and he asked D1 to vacate the premises.  However, D1 wrongfully refused to leave and he claimed a 70% interest in the Property on the basis that he had helped P in the repayment of the mortgage loan.  As regards the title deeds of the Property, it is P’s pleaded case that they have been wrongfully kept by D2 without his consent.  Based on the above, P takes out the present action against D1 for vacant possession and mesne profits of the Property; and against D2 for return of the title deeds of the Property and damages (to be assessed).

4.  The present application of P relates only to D2.  Before the commencement of the present action, P had, through WhatsApp, asked D2 for the latter’s address for service and D2 specifically told P to serve the court documents to him by sending the same to the Property.  On 10 February 2017, the Writ and the Statement of claims were served on the defendants by inserting copies of the same with a covering letter enclosed in sealed envelopes into the letter box of the Property.  The documents so served had not been returned by either D1 or D2.  Nevertheless, neither D1 nor D2 acknowledged the service, nor did any of them serve a notice of intention to defence or a defence.

5.  Eventually, on 29 March 2017 P obtained a final and interlocutory judgment against D1 for vacant possession of the Property.  On 9 June 2017, P was granted leave to issue a Writ of Possession.  Then, on 30 June 2017 P also obtained a Praecipe for Writ of Possession. 

6.  As regards D2, on 28 August 2017 a clerk of P’s solicitors served the Summons for the present application and P’s supporting affirmation by inserting copies of the same with a covering letter enclosed in a sealed envelope addressed to D2 into the letter box of the Property.  They also sent the aforesaid documents by ordinary post addressed to D2 using the address of the Property. 

7.  On 31 August 2017, P obtained vacant possession of the Property from the court bailiffs. 

8.  On 4 September 2017, 5 September 2017 and 12 September 2017, there were attempts by P to get in touch with D2 through WhatsApp and photographs of the Summons for the present application were also sent to D2 by Whatsapp.  Although there was no reply from D2, it appears from the “tick” signs shown on P’s mobile phone that those messages and photographs have been opened and read shortly after they were sent.

9.  At the hearing of the present application for default judgment, D2 did not appear and he was not represented.

Consideration

10.  In view of Phillip Securities (HK) Ltd v Lam Chi Bin Stanley[2]and Hung Lai Wan v Ngo Sam[3], this court initially had some hesitation as to whether the methods of service used by P’s solicitor, namely by inserting the documents into the letter box of the Property and by ordinary post of the same to the Property, are of themselves sufficient to bring to D2’s notice of the present application.  This is in view of the fact that the Property is only the last known (but not the usual) address of D2[4] and that the Property was re-possessed by P just 3 days after the service on 28 August 2017. There was no evidence before this court as to whether neither D1 or D2 was present at the time the bailiff arrived.  On the other hand, there is some evidence to suggest that D1 was no longer occupying the Property some time before the re-possession took place. 

11.  However, what save the day for P are the WhatsApp messages that he sent to D2 between 4 and 12 September 2017 which I am satisfied have been read by D2.  I can be so satisfied because P and D2 had exchanged WhatsApp messages with each other shortly before the commencement of the action by using the same telephone numbers.  Besides, the “tick” signs on the September messages shown in P’s mobile phone indicate that those messages (including the photographs of the Summons for the present application) had been opened and read by the other side shortly after they were sent.

12.  Based on all the evidence before me, including the fact that D2 had specifically asked that court documents be served on him by sending the same to the Property, that the service of the Writ and Statement of Claims had been effected by means of the address of the Property in February 2017 which is no long before, the evidence that the papers served on 28 August 2017 have not been returned, the evidence that D2 has read P’s Whatsapp messages and the fact that D2 has never expressed any wish to participate in the present proceedings ever since the commencement of the proceedings, I draw the inference which I consider to be reasonable that D2 has notice of the present application and the hearing, that he has chosen to be absent from the proceedings and that he has no intention to contend P’s action against him. 

13.  I am also satisfied that P’s pleaded case supports the granting of the judgment in default sought against D2.

14.  In the circumstances, I grant the judgment in default against D2 in P’s favour.

Costs

15.  Following the general rule that costs should follow the event, I order that D2 pay P’s costs for the present application, with counsel’s certificate, to be taxed if not agreed.  P’s own costs are to be taxed in accordance with the Legal Aid Regulations.