Read the full judgment text of CACV 000022/1989 on BabelCite. This Court of Appeal judgment was delivered on 16 February 1989 before Cons, V.-P., Hunter, J.A. & Mortimer, J.
Civil procedure – default judgment – setting aside – judgment entered in default of notice of intention to defend under O.13 r.9 – service of writ by ordinary pre-paid post to defendant's last known address – defendant not in Hong Kong at time of service and unaware of writ until months later – whether default judgment regular or irregular – whether defendant entitled to have judgment set aside as of right – Court's power to set aside a default judgment under O.13 r.9 is discretionary – a default judgment entered after service by post will be regarded as regular if the rules as to postal service are strictly complied with and if at the time of entry of judgment there was no evidence of non-delivery of the posted documents – such a regular judgment will normally be set aside only upon proof both of non-receipt of the process and of an arguable defence on the merits – whether the judge below erred in holding the judgment irregular because the defendant did not actually receive the writ timeously – service by post under O.10 r.1, read with section 8 of the Interpretation and General Clauses Ordinance (Cap 1), is treated as equivalent to actual service in the absence of evidence to the contrary – a party who chooses postal service does not thereby assume the risk that failure of delivery will render a consequent default judgment automatically irregular – the time to test regularity is the moment of entry of judgment, not the moment of actual receipt – English Court of Appeal authority in A/S Cathrineholm v Norequipment [1972] 2 QB 314 followed; majority view in Thomas Bishop Ltd. v Helmville [1972] 1 QB 464 not followed – judgment of Master Chan setting aside the judgment and order of Godfrey J dismissing plaintiff's appeal reversed – default judgment for HK$800,200.77 plus HK$2,347.73 interest restored – appeal allowed.
Legal issues: Proper exercise of discretion to set aside a default judgment entered under O.13 r.9 after service by post · Standard for setting aside a regular default judgment after postal service
Outcome: Appeal allowed; default judgment in favour of the plaintiff restored; order of Master Chan setting aside the judgment and the order of Godfrey J dismissing the plaintiff's appeal set aside.