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Chan Wing Go v The Incorporated Owners Of Wing Hong Factory Building

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date27 May 2015
Year2015
Judgement NumberDCCJ1736/2014
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1736A/2014 CHAN WING GO v. THE INCORPORATED OWNERS OF WING HONG FACTORY BUILDING

DCCJ1736/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1736 OF 2014

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BETWEEN
CHAN WING GO Plaintiff

and
THE INCORPORATED OWNERS OF Defendant
WING HONG FACTORY BUILDING

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Before: Deputy District Judge Amy Chan in Chambers (Open to Public)
Date of Hearing: 17 April 2015
Date of Further Written Submission by the Plaintiff: 24 April 2015
Date of Further Written Submission by the Defendant: 4 May 2015
Date of Decision: 27 May 2015

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DECISION

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1. This is the defendant’s application under Order 13 rule 9 of the Rules of District Court to set aside the judgment (“the Default Judgment”) dated 6 October 2014 entered against it. The grounds that the defendant relies on are that (a) it was an irregular judgment as the Writ of Summons was not properly served on it and (b) it has a meritorious defence.

BACKGROUND

2. In order to understand the defendant’s grounds, it is necessary to set out the background leading to the Default Judgment.

3. By the present action, the plaintiff claims a declaratory relief of possessory title to two parts of common area of Wing Hong Factory Building, Nos 777-783 Yu Chau West Street, Kowloon, Hong Kong (“the Building”). The two parts were/are enclosed with roller shutter gates to form two fully enclosed stores (‘the Stores”) by the plaintiff’s predecessor in or about 1961.

4. The plaintiff has been in adverse possession of the Stores since or about August 1998. He has been occupying the Stores exclusively and continuously, through his tenant, without the consent, approval and/or authority of the defendant and/or its agent. The Stores were kept locked at all times and the keys were kept by the plaintiff and his tenants. The plaintiff has never paid any rent nor management fee to the defendant.

5. In the proceedings, the defendant did not give the notice of intention to defend nor file the defence. The plaintiff proceeded to obtain the Default Judgment.

6. On 6 October 2014, I granted the declaration sought by the plaintiff in the Re-amended Statement of Claim in the Default Judgment.

7. After hearing counsel, I dismiss the setting aside application with costs. These are my reasons.

REGULAR JUDGMENT

8. According to the evidence filed by the plaintiff, the service of the writ and all the related legal documents was performed by Lam Lai Kim (“Lam”), a clerk of the solicitors for the plaintiff. It can be summarized as follows:-


No.
Date
Document
Mode

1
9/5/14
Writ of summons
By registered post

2
23/7/14
Summons to amend SOC
By hand / chopped by caretaker

3
8/8/14
Amended SOC
Ditto

4
12/8/14
Summons to enter judgment
Ditto

5
13/9/14
Summons to re-amend SOC
Ditto

6
19/9/14
Re-amended SOC
Ditto

7
29/9/14
Sealed order of 18/9/14
By ordinary post

9. Lam deposed that the Writ of Summons together with the Statement of Claim and Acknowledgement of service were sent by registered post in a sealed envelope duly prepaid and addressed at “Nos 777-783 Yu Chao West Street, Kowloon, Hong Kong” (“Registered Office”). The Registered Office is shown on the Index of the Owners’ Corporations kept by the Land Registry under Building and Management Ordinance (“BMO”) (Cap 344) s. 12.

10. The registered post has not been returned to the plaintiff undelivered.

11. For the subsequent legal documents including the Re-amended Statement of Claim, Lam deposed that those had been brought to the Registered Office on the dates as indicated in paragraph 8 above under service no 2 - 6. He said there are two management offices (“the Office”) in the Building. One is situated at the lift lobby in Block A and B. The other one is at Block C and D. The name of the defendant in Chinese which reads “永康工業大廈 業主立案法團” is written at the top part of the Office. Lam approached the Office and physically handed the legal documents to a caretaker therein. The caretaker received the legal documents on behalf of the defendant. He put a chop on a duplicate cover letter acting as a receipt and returned it to Lam.

12. On the other hand, the defendant relies on the affirmation of Chau Chi Wai (“Chau”), who is the chairman of the Management Committee of the defendant, to contend that the default judgment was irregular. Chau deposed that the defendant had not received the registered post of 9 May 2014 and all the legal documents were not duly served.

13. In his affirmation dated 19 December 2014, Chau accepted that there is Chinese name of the defendant at the top part of the Office. However, it is not the office of the defendant. Chau claimed that the defendant does not have a physical office for carrying out its function. The Management Committee of the defendant usually has its meetings in the offices of his company in Workshop D on the 3rd floor of the Building when he was/is the chairman since 2011. The address for the defendant is given as the entire building during its incorporation and registration with the Home Affairs Department as it was custom. There has never been a physical and separate office for the defendant.

14. Chau deposed that the office is operated by Sky Pacific Property Consultant Limited (“Sky Pacific”) appointed by the defendant. Sky Pacific has been operating as the building manager of the Building since or about August 2000. Caretakers are employed by Sky Pacific in the daily running and management of the Building.

15. Chau further stated that the caretakers would assist the tenants and owners in the Building to receive letters or small parcels for them if the delivery men or the postman cannot deliver the same to the individual addresses. The caretaker would stamp on the receipt a chop bearing the wordings of “Wing Hong Factory Building Management Offices, Sky Pacific Property Consultants Limited”. As a matter of practice, the caretakers would leave those letters on the glass panel or on the desks inside the Office so that the addressees, tenants or owners may pick them up or by reaching through the small window located next to the door of the Office. If a letter intended for the defendant remains uncollected for a few days, an arrangement will be made to forward the letter to the head office of Sky Pacific in Hung Hom for further handling.

16. In the present case, Chau claimed that he has no knowledge as to why the registered post under service no. 1 (see para. 8 above) was not received by the defendant. Likewise, the legal documents delivered by hand on service no. 2 to 6 above did not come into the possession and knowledge of the defendant. He believes that these were either taken away by parties mistakenly or were wrongly delivered between the Building and the head office of Sky Pacific.

17. Chau deposed that the defendant was not aware of the present proceedings against it until in an Extraordinary General Meeting of the defendant held on 15 October 2014. The representative of Urban Renewal Authority (“URA”), which has purchased several units in the Building, questioned about a judgment against the defendant regarding title of certain parts of the common areas of the Building has been extinguished in favour of the plaintiff. Then the defendant took prompt action to engage lawyers for the present setting aside application.

The Writ

18. Parties are in agreement that an owners’ incorporation is in law a body corporate (See Building Management Ordinance, Cap 344, s.8 (2) (a)).

19. A writ for service on a defendant within the jurisdiction may be served on him by sending a copy of the writ by registered post to the defendant at his usual or last known address: O.10 r.1(2).

20. Where a writ is served on a body corporate in accordance with Order 10, rule 1(2), that rule shall have effect as if for the reference to the usual or last known address of the defendant there were substituted a reference to the registered or principal office of the body corporate: O.65 r. 3(2).

21. The real question is therefore whether the Registered Office is the usual or last known address of the defendant under O. 65 r 3.

22. Under BMO s.13, a certificate of registration issued by the Land Registry is conclusive evidence of the incorporation. There is no reason why the address and information as registered on the Index are not afforded similar treatment because had there been any change of the address it must have been reported to the Land Registry: BMO, s.12(3). No such change of address has been effected at the time of service.

23. Similarly where service is effected against a limited company under Companies Ordinance (Cap 622) (“CO”) s.827, the address as reported in the Companies Registry is to be regarded as the effective address: CO, section 658(1) and changes must be reported to the Companies Registry: CO, s.658(3).

24. In any event, in ordinary circumstances, a plaintiff is entitled to acquire knowledge of a defendant’s address by any reasonable means known to him: Law Kwok Hung v Tse Ping Man [1999] 4 HKC 397, 404B-C. Reliance on the Land Registry must be one of the reasonable means.

25. The plaintiff is entitled to ascertain from whatever available source that address can be found and delivered: see The Hong Kong Mortgage Corporation Ltd v. Ching Kit Yu & anor HCMP2226/2002 (unreported, 15.4.2003) at §§10-13.

26. In my view, it is reasonable for the plaintiff or his solicitors to regard the Registered Office as the defendant's usual and last known address.

27. Under Interpretation and General Clauses Ordinance (Cap 1) (“IGCO”)section 8 reads:-

“Where any Ordinance authorizes or requires...

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