KAN SUI YAU AND OTHERS v. WONG TIN LUNG AND OTHERS

KAN SUI YAU AND OTHERS v. WONG TIN LUNG AND OTHERS

The court will not grant default judgment against D1 and D3 because the plaintiffs' claims are not severable from the claims against D2 who filed a defence; the summons may be treated as brought under O.19 r.7 RHC but, given the non-severability, the Default Judgment Summons is dismissed and the plaintiffs must set down the action for judgment against D1 and D3 at the same time as judgment or trial against D2 (which may include an application for summary judgment).

Citation
[2022] HKCFI 1908
Parties
1st Plaintiff: KAN SUI YAU; 2nd Plaintiff: KAN FU KEUNG; 3rd Plaintiff: KAN KWAI ON; 4th Plaintiff (resident Representative): KAN SHING BIU; 5th Plaintiff (indigenous Inhabitant Representative): CHAN YUK WA; 1st Defendant (registered Owner of Lot 713): WONG TIN LUNG; 2nd Defendant (tenant): YU TUNG FAT; 3rd Defendant: Persons entering and remaining and/or blocking the stretch of the road constructed on a portion of Lot 713 in DD 111 and interfering with use of the said stretch of road by the Plaintiffs and people living in and/or visiting Ha Che Village, Pat Heung, New Territories
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 June 2022
Case Number
HCA1975/2019
Procedural Posture
Action for Declarations and Injunctions Concerning Right of Way Over Private Land / Application for Default Judgment (default Judgment Summons) Dismissed; Matter to Be Set Down With Non Defaulting Defendant
Outcome
Default Judgment Summons dismissed; plaintiffs may only seek judgment against D1 and D3 when the action is set down for trial or judgment against D2; no order as to costs.
Legal Topics
Right of Way, Lost Modern Grant, Dedication to the Public, Default Judgment, Severability, Injunction, Res Judicata, Abuse of Process
Source Language
EN
Property Law Land Law Easements and Rights of Way Civil Procedure Right of Way Lost Modern Grant Dedication to the Public Default Judgment +4 more

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Parties

KAN SUI YAU

1st Plaintiff

KAN FU KEUNG

2nd Plaintiff

KAN KWAI ON

3rd Plaintiff

KAN SHING BIU

4th Plaintiff (resident Representative)

CHAN YUK WA

5th Plaintiff (indigenous Inhabitant Representative)

WONG TIN LUNG

1st Defendant (registered Owner of Lot 713)

YU TUNG FAT

2nd Defendant (tenant)

Persons entering and remaining and/or blocking the stretch of the road constructed on a portion of Lot 713 in DD 111 and interfering with use of the said stretch of road by the Plaintiffs and people living in and/or visiting Ha Che Village, Pat Heung, New Territories

3rd Defendant

Procedural Posture

Action for Declarations and Injunctions Concerning Right of Way Over Private Land / Application for Default Judgment (default Judgment Summons) Dismissed; Matter to Be Set Down With Non Defaulting Defendant

Legal Issues

  1. 1 Whether plaintiffs and the public have a right of way over the Way
  2. 2 Whether default judgment can be entered against defaulting defendants when another defendant has filed a defence
  3. 3 Whether the claims against defaulting defendants are severable from claims against the non-defaulting defendant

Ratio Decidendi

The court will not grant default judgment against D1 and D3 because the plaintiffs' claims are not severable from the claims against D2 who filed a defence; the summons may be treated as brought under O.19 r.7 RHC but, given the non-severability, the Default Judgment Summons is dismissed and the plaintiffs must set down the action for judgment against D1 and D3 at the same time as judgment or trial against D2 (which may include an application for summary judgment).

Court Disposition

Default Judgment Summons dismissed; plaintiffs may only seek judgment against D1 and D3 when the action is set down for trial or judgment against D2; no order as to costs.

Orders

  • Default Judgment Summons dismissed.
  • Plaintiffs may set down the action for judgment against D1 and D3 only at the time the action is set down for trial or judgment against D2 (including by summary judgment if appropriate).