31 July, 2018
In the recent case of Chan Pat Hung Eva (suing by her attorney, Pun Sau Yuk) v Wong Hau Ki [2018] HKDC 585, the Defendant applied to set aside a default judgment entered against him. The Court allowed the application and ruled that the default judgment obtained was irregular on the basis that there was no reasonable ground for the Plaintiff to believe that the Writ would have come to the Defendant’s knowledge.
Background
The Plaintiff alleged that by the Defendant’s fault, water leaked from the Defendant’s property, which was the flat above the Plaintiff’s, into the Plaintiff’s property. The Writ was served on the Defendant by inserting it into the letterbox for the Defendant’s property, which in the opinion of the Plaintiff would have come to the Defendant’s knowledge within 7 days from the date of insertion.
The Defendant challenged service on the basis that he did not have the key to the letterbox and had never received the Writ inserted into it as the Defendant’s property was rented out as sub-divided rooms. It transpired that the Plaintiff was aware of this fact, but did not mention this point in the Affidavit of Service filed by the Plaintiff in support of her application for default judgment.
The Plaintiff further sought to rely on a phone call made by the process server to the Defendant informing him of the Writ. The Defendant argued that he thought it was a swindling call and did not pay attention to it.
Rule on Service of Proceedings
The Court ruled that if the belief of the Plaintiff on service stated in the affidavit of service was “not reasonably held”, the service in question is irregular. In coming to this view, the Court considered the following authorities:-
The Court in Phillip Securities (HK) Ltd v Lam Chi Bin Stanley [2002] 1 HKC 432 ruled that “… If the plaintiff was aware that the defendant was no longer at the Address at the time of service, that could not be a proper address for service because the plaintiff could not properly authorize an affidavit of service to be sworn in compliance with O 10 r 1(3)(b)(i) deposing to a belief that the writ would come to the knowledge of the defendant within seven days.”
The Court in Law Kwok Hung v Tse Ping Man [1999] 4 HKC 397 ruled that “… Order 10 r 1(3)(b)(i) RHC stipulates that the affidavit of service of a writ by post must state that the writ had been served at the address last known to the plaintiff and that in the plaintiff’s opinion it would come to the defendant’s knowledge within seven days. That opinion must be a reasonably held one.… If a defendant impeaches the good faith of that opinion, the court can determine whether the plaintiff did or did not have any reasonable grounds to hold the opinion asserted in the affidavit of service. If there were no reasonable grounds, then the service would have been irregular for non-compliance with the rules.”
The Court applied the above principles to the present case and ruled that it was “crystal clear” that the service in question was irregular, as the Plaintiff knew that the Defendant’s property was rented out and the Defendant could not have treated the property as his own home and break into its letterbox whenever he wished. The Court saw no reasonable ground for the Plaintiff to believe that the Writ would have come to the Defendant’s knowledge within 7 days from the date of the insertion.
The Court also ruled that the phone call made by the process server should be disregarded, as service by phone calls is not in line with the legislative intention of Order 10 of the Rules of the District Court, and if the Court were to hold this service to be good service, all litigants would just be making calls instead of serving writs to the defendants. The Court also commented that the Plaintiff had been at liberty to apply for an order for substituted service, but had not done so.
Implications
This case serves as a good reminder to legal practitioners that when serving legal proceedings, care must be taken to ensure that there is reasonable belief on part of the plaintiff that the Writ served at a particular address will come to the knowledge of the defendant. They should also ensure that full and frank disclosure is made in an application for default judgment to avoid the risk of having a default judgment set aside subsequently on the basis that it was irregularly obtained.
For further information, please contact:
Cathy Wu, Deacons
cathy.wu@deacons.com.hk
