SUPER POWER PROPERTIES LTD v. TANG HING CHEUNG

DCCJ4581/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4581 OF 2008

_________________________

BETWEEN

_________________________

_______________________

D E C I S I O N

_______________________

1.  In this application to set aside the judgment entered in default on 10 February 2009, the issue is whether the Writ had been duly served on the Defendant on 17 October 2008, when the Plaintiff’s representatives inserted the Writ through the Defendant’s letterbox at Flat B, rear block, 14th Floor, Wai On Building, 1A Austin Road, Kowloon, at the last known residential address of the Defendant.

2.  The Summons to set aside was issued on 9 July 2009, supported by an affirmation made by the Defendant on 8 July 2009. The Defendant claims that he had never received the Writ, nor the letter before action dated 15 August 2008, nor any of the court documents served by the Plaintiff. He claims that the first time he became aware of these proceedings was when he received the letter from the Food and Environmental Hygiene Department dated 3 March 2009, when he was informed that his wall stall abutting the Plaintiff’s property had to be vacated within 6 months as the Plaintiff had obtained a court order on 10 February 2009.

3.  I accept that the Defendant has to show a credible and convincing case that he had no notice of the issue and the service of the Writ. Service by insertion through the letterbox can be deemed good service but it is always open to the Defendant to show that he had not received the writ in fact. Whether or not there is sufficient evidence for the court to accept the credibility of the Defendant’s assertion that he had not received the Writ obviously depends on the facts of each and every case.

4.  Having considered the evidence filed on behalf of both parties, I accept that there is a credible case that the Writ may not have been brought to the attention of the Defendant and may have been mis-delivered. From the Defendant’s evidence and the photographs exhibited as “THC-7” and “THC-5”, the two entrances to Wai On Building on Austin Road do appear very confusing and misleading. Importantly, so do the letterboxes which are in the lobby of the building identified as “Number 1”; “Number 1 rear block”; “Number 1A”, “Number 1B”, “Number 1B rear block”; and “Number 1C” of Austin Road. Looking objectively at the photographs of the letterboxes, it appears very difficult to make out which should be the correct letterbox for the address of the Defendant given as Flat B, rear block, 14th Floor, 1A Austin Road.

5.  The Defendant having put forward, in my opinion, a credible case and despite the fact that the Plaintiff had filed evidence in reply to the Defendant’s affirmation, the Plaintiff’s representative had not identified which entrance to Wai On Building he took, and in which of the 6 letterboxes for the 14th Floor he had inserted the Writ, by way of confirmation or clarification, at least, that he had put the Writ in the Defendant’s correct letterbox.

6.  The evidence relating to the service of the Summons for the hearing of the application for judgment and injunction is not, in my judgment, material. Even if it was true that the Summons had been left at the Defendant’s stall at Bowring Street, this cannot prove that the Defendant had received the Writ, nor can it accordingly throw doubt on the credibility of the Defendant’s assertion that the Writ had not been served on him. On the same basis, the allegation that the Defendant had telephoned the Plaintiff’s solicitors after the issue of the Summons for the hearing on 10 February 2009 cannot establish that the Defendant had duly received the Writ.

7.  I find, therefore, on the evidence that the only manner of service of the Writ relied upon by the Plaintiff, i.e. through insertion through the letterbox on 17 October 2008,is irregular.

8.  Being bound by Po Kwong Marble Factory Limited v Wah Yee Decoration Co Ltd [1996] 4 HKC 157, the judgment on 10 February 2009 must be set aside without regard to the merits of the proposed Defence. I have seen nothing in the evidence which justifies my imposing any condition in the exercise of my residual discretion on the setting aside.

9.  I therefore set aside the Judgment entered on 10 February 2009, with costs to the Defendant. The costs include the reserved costs.