LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER

LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER

Because SMC's circumstances (absence from jurisdiction, delegation of management, delay and inability to identify blame) and her maintenance of unsubstantiated allegations required the plaintiff to defend, the court applied the general rule that a defendant who obtains setting aside of a regular judgment by seeking the court's indulgence should bear the costs of that application; accordingly SMC must pay Madam Lee's costs of the setting aside application and related wasted possession proceedings.

Citation
LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER
Parties
Plaintiff: Madam Lee; 2nd Defendant: SMC; 1st Defendant: Unknown Occupiers
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
30 December 2010
Case Number
DCMP3097/2009
Procedural Posture
Possession Proceedings (order for Possession; Writ of Possession) / Post Decision Costs Application Following Successful Application to Set Aside Previous Possession Orders
Outcome
SMC's summons dated 15 October 2010 dismissed; the order nisi dated 4 October 2010 as to costs made absolute; SMC ordered to pay Madam Lee's costs of the present summons and the wasted costs of obtaining the order for possession and writ of possession.
Legal Topics
Set Aside Default Judgment, Costs Orders, Service of Process, Possession Proceedings, Court Discretion on Costs
Source Language
EN
Civil Procedure Land/property Costs Set Aside Default Judgment Costs Orders Service of Process Possession Proceedings Court Discretion on Costs

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Parties

Madam Lee

Plaintiff

SMC

2nd Defendant

Unknown Occupiers

1st Defendant

Procedural Posture

Possession Proceedings (order for Possession; Writ of Possession) / Post Decision Costs Application Following Successful Application to Set Aside Previous Possession Orders

Legal Issues

  1. 1 Whether costs of the application to set aside should be awarded to the plaintiff in any event or be in the cause
  2. 2 Whether the defendant's fault or delay in allowing judgment to be entered justifies an order for costs against the defendant
  3. 3 Whether unsubstantiated allegations of improper service alter the costs exercise

Ratio Decidendi

Because SMC's circumstances (absence from jurisdiction, delegation of management, delay and inability to identify blame) and her maintenance of unsubstantiated allegations required the plaintiff to defend, the court applied the general rule that a defendant who obtains setting aside of a regular judgment by seeking the court's indulgence should bear the costs of that application; accordingly SMC must pay Madam Lee's costs of the setting aside application and related wasted possession proceedings.

Court Disposition

SMC's summons dated 15 October 2010 dismissed; the order nisi dated 4 October 2010 as to costs made absolute; SMC ordered to pay Madam Lee's costs of the present summons and the wasted costs of obtaining the order for possession and writ of possession.

Orders

  • SMC's summons dated 15 October 2010 is dismissed.
  • The order nisi made on 4 October 2010 as to the costs of and occasioned by SMC's summons dated 25 June 2010 is made absolute.