TANG CHI WAI v. PERSON UNKNOWN

HCA008077/2000

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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BETWEEN
TANG CHI WAI Plaintiff
AND
PERSON UNKNOWN Defendant

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Coram: Mr Recorder G. Ma SC in Chambers

Date of Hearing: 9 April 2001

Date of Decision: 9 April 2001

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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 effectivelydefault judgment under Order 19 rule 7 on its claim for a declaration based on adverse possession in respect of a piece of land inYuen Long. The defendant is described in the writ as “Person Unknown” and in the Statement of Claim, he is referred to as the “recordedprivate owner” of the relevant land. That the defendant is not identified in the writ, prima facie, offends the basic requirementthat 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, itis 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 theidentity of the registered owner of the relevant land. Efforts have been made by enquiries to the District Lands Office but thishas met with little success. I have therefore decided to adjourn the application before me this morning to enable the plaintiff tomake further investigations.

3. I should also point out that the plaintiff should, during the adjournment, also consider whether default judgment on essentiallya 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 circumstancesjustified. 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.

( G. Ma )
Recorder of the Court of First Instance,
High Court

Representation:

Mr C.Mumford, SC, instructed by Messrs Chau & Tsu, for the Plaintiff