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Lau Tim Fat And Others v Li Bang Yuen And Others

Judgment Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date06 March 2007
Judgement NumberCACV335/2006
Subject MatterCivil Appeal
CACV000335/2006 LAU TIM FAT AND OTHERS v. LI BANG YUEN AND OTHERS

cacv 335/2006 AND CACV 422/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no S. 335 of 2006 AND 422 OF 2006

(on appeal from HCMP NO. 1117 of 2004)

______________________

　 IN THE MATTER of Order 113 of the Rules of the High Court and other matters
　 and
　 IN THE MATTER of the parcel of ground registered in the Tsuen Wan New Territories Land Registry as Lot 19-28 D.D.455

BETWEEN

　 LAU TIM FAT 1st Plaintiff
　 LAU TIM YAU 2nd Plaintiff
　 LAU TIM CHOI 3rd Plaintiff
　 LAU MAN KIT 4th Plaintiff
　 LAU TAK HUNG 5th Plaintiff
　 LAU HON KEUNG 6th Plaintiff
LAU WING MAN 7th Plaintiff
LAU WING CHUNG, PAUL 8th Plaintiff
LAU SHU WAN 9th Plaintiff
LAU SHUE TAN 10th Plaintiff
LAU FUK PING 11th Plaintiff
LAU FUK SHEUNG, MONDY 12th Plaintiff
LAU FUK SANG 13th Plaintiff
LAU FUK HONG 14th Plaintiff
and
LI BANG YUEN 1st Defendant
LI BANG YU 2nd Defendant
(whose names are known)
LAM KWOK WAI 3rd Defendant
and
CHU PAK HEI Applicant

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 28 February 2007

Date of Handing Down Judgment: 6 March 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1. These were 2 appeals. One was from a judgment of Yam J given on 30 August 2006 and the other was from an order of Deputy High Court Judge Muttrie given on 24 November 2006. The main focus of these appeals is the appeal from the judgment of Yam J who was dealing with an application by the applicant to be joined as the 4th defendant in this action. The matter before Deputy High Court Judge Muttrie, on the other hand, was an application on the part of the applicant for a stay of the judgment in the action previously made by Deputy High Court Judge Muttrie himself, pending the appeal from the judgment of Yam J. Yam J refused the applicant permission to join as 4th defendant and Deputy High Court Judge Muttrie granted the stay pending the first appeal. At the conclusion of the hearing of these appeals judgment was reserved which we now give.

Background

2. The 14 plaintiffs in this action claimed a declaration that they were entitled to immediate and exclusive possession of the land comprising Lots 19-28 in D.D. 455 registered in the Land Registry in Tsuen Wan in the New Territories. Initially there were only two named defendants but on his application the 3rd defendant was also joined. A statement of claim was ordered to be served and that was filed on 5 January 2006. The matter came before Deputy High Court Judge Muttrie on 22 March 2006 on an application by the plaintiffs for judgment in default of defence. The 1st and 2nd defendants did not appear. The 3rd defendant appeared by counsel who asked for an adjournment because he had been unable to obtain instructions. The judge, noting the delay which had occurred since the commencement of the proceedings and the total failure of any of the defendants to put in any defence, granted the order sought by the plaintiffs. He did so, however, with the proviso which was inserted as paragraph 7 of his order that:

“Such Judgment as the Plaintiffs are entitled herein shall not be enforced pending determination of the Summons taken out herein by Mr. Chu Pak Hei dated the 6th February 2006.”

3. That proviso had been put in because some six weeks prior to that hearing the applicant had made application to be joined as the 4th defendant. That application was supported by evidence which was both written and supported by exhibits which were all in Chinese. The judge noted that he was unable to follow the basis of the applicant’s application and hence he made the order preserving the position of the applicant.

4. The applicant’s application to be joined as 4th defendant came before Yam J on 30 August 2006. He refused that application on the basis that the applicant claimed to be the subtenant of the 3rd defendant but that since judgment had been entered against the 3rd defendant, the 3rd defendant’s interest, if any, had been terminated and, hence, the applicant had no interest. That reasoning would appear to ignore the intent of paragraph 7 of the order of Deputy High Court Judge Muttrie.

5. When the matter came before Deputy High Court Judge Muttrie on the stay application, he appreciated that the default judgment could be set aside if merit could be shown and he granted the stay on the basis that the applicant should be in a position to attack the default judgment if he could. Quite rightly, it seems to me, he granted the stay in view of the upcoming appeal.

6. With regard to the default judgments I would observe that the notes in the White Book state at 19/7/20:

“It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently. However, this is only a rule of practice and should only be followed when the plaintiff can obtain the fullest justice to which it is entitled...

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