XCHRX TANG CHI WAI v. PERSON UNKNOWN

HCA8077/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.8077 OF 2000

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D E C I S I O N

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1. The matter before the court is by way of an appeal from an Order of Master Lung dated 5 February 2001. The plaintiff seeks effectively default judgment under Order 19 rule 7 on its claim for a declaration based on adverse possession in respect of a piece of land in Yuen Long. The defendant is described in the writ as "Person Unknown" and in the Statement of Claim, he is referred to as the "recorded private owner" of the relevant land. That the defendant is not identified in the writ, prima facie, offends the basic requirement that parties need to be named in the writ of summons : see Friern Barnet Urban District Council v. Adams [1927] 2 Ch.25; also, Halsbury's Laws of England, Vol.37 at para.215 at Footnote 4. If indeed, the basic rule has been infringed, the whole action may be misconceived. However, it is not necessary at this stage for a decision to be made on this point.

2. The reason for the plaintiff's inability to identify the defendant is that, so far, the plaintiff has been unable to discover the identity of the registered owner of the relevant land. Efforts have been made by enquiries to the District Lands Office but this has met with little success. I have therefore decided to adjourn the application before me this morning to enable the plaintiff to make further investigations.

3. I should also point out that the plaintiff should, during the adjournment, also consider whether default judgment on essentially a declaration of right is available : see Hong Kong Civil Procedure at para.19/7/14; Wallersteiner v. Moir [1974] 1 WLR 991 and Patten v. Burke Publishing Co. Ltd [1991] 1 WLR 541 at 544. The plaintiff should also consider whether the Order of Master Barnes allowing substituted service was in the circumstances justified. Again, I express no views on these matters but they may well have to be considered at the adjourned hearing.

4. I therefore adjourn the application sine die with liberty to apply and propose to reserve the costs of this morning.