黃天昕 v. 關劍麟

DCCJ 771/2025

[2026] HKDC 787

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 771 OF 2025

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  In this action, the Plaintiff (“P”), married to the Defendant (“D”) in Guangzhou in 1987, applies by way of a Summons taken out on 8 December 2025 (the “Summons”), for a default judgment against D on her Re-Amended Statement of Claim[1] under Ord 13, r 6 of the Rules of District Court[2] (“RDC”). In support of her present application, P filed her 2^nd affirmation together with 2 annexures on 20 February 2026 (the “Supporting Affirmation”).

2.  The Writ of Summons was specially indorsed with a Statement of Claim and was issued on 7 February 2025 (the “Writ”). On 11 April 2025, the District Court Registry received an acknowledgment of service which D ticked the box to the effect that he did not intend to contest the proceedings.

3.  The Writ has gone through 2 amendments, one on 4 November 2025 and the other on 20 February 2026. The Writ was re-amended and re-issued on 20 February 2026 with the Statement of Claim indorsed thereon also re-amended. I have just been informed by Ms Lam acting for P that for the Re-Amended Writ of Summons (the “Re-Amended Writ”), D has returned his acknowledgement of service today, indicating that he did not intend to contest the proceedings.

4.  Of note is the reason why the Writ and the Statement of Claim were re-amended. When the Summons had its first appearance before me on 2 February 2026, I highlighted to Ms Lam a host of problems with the Amended Statement of Claim. This led to Ms Lam applying for leave to re-amend the Writ and the Statement of Claim to cure the defects. I therefore prescribed directions for them to do so and to reissue the Re-Amended Writ, and adjourned the hearing to today’s date.

5.  According to the 3^rd Affirmation of Lee Ying Lung (李映龍) (“Lee”), a clerk of KARBHARI & CO, JAL N, the former solicitors of P, filed on 30 January 2026, the Summons and another document[3] were served on D by inserting the aforesaid documents enclosed in a sealed envelope addressed to D through the letter box for the usual or last known address of D on 11 December 2025 (Thursday). The aforesaid documents are deemed to be served on the next following day, ie 12 December 2025.[4]

6.  According to the 5^th Affirmation of Lee filed on 9 April 2026, Lee had served the Re-Amended Writ on D by inserting through the letter box for the usual or last known address of D within the jurisdiction a sealed copy of the Re-Amended Writ accompanied by 3 blank forms of acknowledgment of service and Form 16C enclosed in a sealed envelope addressed to D on 21 February 2026. The deemed date of service is the 7^th day after 21 February 2026 (Saturday), ie 28 February 2026.[5]

7.  I am satisfied that proper service of the Re-Amended Writ has been effected on D.

8.  Having perused the 6^th Affirmation of Lee, I am also satisfied that D has notice of today’s hearing.

B. THE PLAINTIFF’S PLEADED CASE

9.  On the Re-Amended Statement of Claim, P claims the following:

(a) P and D are originated from Mainland China and married in Guangzhou in 1993.

(b) After marriage, they came to Hong Kong by one-way permit on separate occasions and later became Hong Kong residents.

(c) After they came to Hong Kong, P and D orally agreed that they would work hard separately and each would be financially independent, that they would each use his/her own funding to purchase his/her own real property, and that the real property purchased would be registered, bank account and securities account opened in his/her sole name.

(d) P and D strictly performed the aforesaid oral agreement and all the assets owned by P and D were owned by them separately and had never been held by them in their joint names.

(e) Since 2012, the conflicts between P and D have been deepened. They agreed to live separately and planned to divorce. Hence, P and D voluntarily signed a separation agreement at (廣东凱成律師事務所) lawyers’ firm on 2 July 2012 (the “Separation Agreement”). The Separation Agreement witnessed by (歐學文) confirmed the following distribution of assets:

(i) All fixed and securities assets held in their names would belong to and be owned by P;

(ii) Foreign investment project interest and possible debts created thereon would belong to, be held and accountable by D, including D’s signed approved private creditor’s rights/claims and debts; and

(iii) P and D would each hold and be responsible for his/her own assets and debts created during separation.

(f) P and D signed the Separation Agreement voluntarily and fully understood its terms at the time of signing the same. There was no duress or undue influence.

(g) Thereafter, the conflicts between P and D escalated. They lived in Guangzhou most of their time and their only daughter was also living in an upper flat of the same block of their residence after her marriage. Since divorce between P and D would seriously affect their family and daughter, D has repeatedly delayed in his performance of the Separation Agreement and P has continuously forborne and not forced D to perform the Separation Agreement.

(h) There was an implied term in the Separation Agreement, to wit: D should perform his transfer obligation by transferring all fixed and securities assets held in their names to P on 2 July 2014. The reasonable period was 2 years after signing the Separation Agreement since clause 2 of the Separation Agreement provided that if the conflicts of P and D could be resolved, they would voluntarily end the state of separation and the Separation Agreement would automatically become invalid. The 2-year period would provide them an ample and reasonable opportunity to resolve their conflicts.

(i) After the expiry of the aforesaid 2-year period, D still declined or was unable to transfer all fixed and securities assets held in their names to P and was thereby in breach of the Separation Agreement. All fixed assets in their names included:

(i) 廣州市海珠區南洲路恆景街22號珠江御景灣G7棟1402室 (the “Property”); and

(ii) 廣州市海珠區南洲路恆景街22號至30號地下一層第63號車位 (the “Car Park”).

(j) P has requested D to comply with the Separation Agreement. But D refused to do so on the ground that the Separation Agreement was signed on the Mainland, disputing its legal effect in Hong Kong.

(k) D’s refusal to transfer the Property and the Car Park to P was a breach of the express and implied terms of the Separation Agreement. As a result, P has suffered loss and damage.

(i) P lost the control of and right to profit from the Property and the Car Park.

(ii) P might possibly encounter economic risk as a result of D mortgaging or dealing with the Property and the Car Park.

(l) Although the Separation Agreement involved assets located in the Mainland, the Hong Kong law nevertheless governed the performance, interpretation and resolution of the dispute of the Separation Agreement because P and D are Hong Kong permanent residents and recently have commuted frequently between Hong Kong and the Mainland for living and job reasons.

(m) D is now living in Hong Kong and is subject to the personam jurisdiction of Hong Kong Courts.

(n) P claims interest pursuant to section 49 of the District Court Ordinance, Cap 336.

10.  Based on the aforesaid pleas, P seeks the following reliefs:

(a) A declaration that the Separation Agreement is a valid and binding agreement and that P and D shall perform their respective obligations according to the terms thereof. (the “Declaration”)

(b) An Order that D shall perform his obligations under the Separation Agreement, including carrying out every necessary step to procure the relevant mainland property and assets be transferred to P. (the “Specific Performance”)

(c) An injunction prohibiting D from mortgaging, assigning/transferring or otherwise dealing with such real property and assets. (the “Injunction”)

(d) Damages due to loss suffered as a result of D’s delay in performing the Separation Agreement. (the “Damages (1)”)

(e) If D cannot perform the aforesaid obligations, an Order that D shall pay P damages equivalent to the market value of such assets on the date of judgment. (the “Damages (2)”)

(f) Interest.

C. THE APPLICATION FOR DEFAULT JUDGMENT

11.  The Court’s power to grant judgment under Ord 19, r 7 of RDC is discretionary. The Court’s task (in exercising its discretion) is to see whether the plaintiff appears to be entitled to judgment on his Statement of Claim.[6]

12.  It is trite that, in considering whether default judgment should be given pursuant to Order 19, rule 7 of RDC, the court should consider the pleadings only and cannot receive any evidence; the costs of any affidavits/affirmations in support of the claim will be disallowed. However, when the judgment sought involves a declaration, the court retains the discretion to decide whether to grant such relief in order to do the fullest justice to the plaintiff to which he is entitled[7].[8]

13.  The declaratory reliefs to be granted should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice to him.[9]

14.  Where declaratory relief is sought, the Court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought.[10] The Court expects maximum assistance to be provided in order for the relief to be granted. However straightforward this kind of application may seem, the Court should not be expected to deal with the matter on a do-it-yourself basis and rubber-stamp the uncontested application without further ado.[11]

15.  Three requirements need to be satisfied before the court’s discretionary jurisdiction to grant declaratory relief can be invoked: (a) the applicant has a real interest in the subject matter of the declaration; (b) the applicant has a real interest in obtaining a declaration against the adverse party; and (c) the adverse party is a proper contradictor.[12]

16.  Although the remedy by way of declaration is wide and flexible, yet a declaration will not be granted where there is no breach and no threat or intention to commit a breach of agreement.[13]

D. MY VIEWS

17.  I have scrutinized the pleaded case of P and the Supporting Affirmation carefully. Having done so, I am not satisfied that this Court shall exercise its discretion to grant the Declaration and the Injunction. Neither is it appropriate for this Court to grant the relief for the Damages (1) and (2). The only relief which this Court will grant to P is the Specific Performance. At the hearing, Ms Lam informed this Court that P would abandon her claim for the Declaration, the Injunction and the Damages (1) and (2). Rightly so. At any rate, I shall now give my reasons for my decision, as follows:

(a) The basis of P’s claim is breach of the Separation Agreement entered into by P and D in 2012. In her Re-Amended Statement of Claim, P has identified the fixed assets/real properties relevant to the Separation Agreement and the only breach now claimed is the refusal of D to transfer the Property and the Car Park after the expiry of the 2-year period from the date of signing of the Separation Agreement. P could have asked for the transfer as early as in 2014, but P has not done so because of the adverse effect of divorce on her daughter. In deciding whether to grant the default judgment, the court will assume that the Re-Amended Statement of Claim has been impliedly admitted by D.[14] I am of the view that the delay on the part of P to enforce the Separation Agreement does not have a fatal impact on P’s claim for the Specific Performance.

(b) As I have considered that it is appropriate to grant the Specific Performance here, it follows that the claim for the Damages (2) must fall apart. Likewise, I do not think it is necessary in the interest of justice to grant P the Declaration.

(c) As to the claim for the Injunction, the acts intended to be prohibited against are the acts of mortgaging, assigning/transferring or otherwise dealing with the Property and the Car Park. There is however no plea of facts which can be said to give rise to the Injunction sought. I therefore refuse to grant P the Injunction.

(d) Finally, I also reject the Damages (1) sought. The Damages (1) sought is about loss suffered by P as a result of D’s delay in performing the Separation Agreement. There is no plea to identify which part of the Separation Agreement D has delayed in his performance. Neither has P pleaded and particularised the loss she has sustained because of D’s delay. In my view, the Damages (1) sought cannot get off the ground.

18.  Accordingly, I would grant default judgment against D and order the relief sought by P for the Specific Performance. P shall lodge with the Court a draft Order for my approval on or before 15 April 2026.

19.  Costs should follow the event. I therefore order that D shall pay P the costs of and occasioned by the Summons (except the costs of and occasioned by the Amendment and Re-Amendment of the Statement of Claim and the hearing on 2 February 2026, in respect of which the costs order shall be no order as to costs) as summarily assessed by me on paper. I therefore direct that P shall lodge with the Court a Statement of Costs for my summary assessment on or before 15 April 2026.