Resorts World At Sentosa Pte Ltd v. Sze Siu Hung

HCMP 1167/2017

[2018] HKCFI 1646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1167 OF 2017

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D E C I S I O N

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I. INTRODUCTION

1.This is an appeal brought by the respondent/debtor (“Mr Sze”) pursuant to Order 58 of the Rules of the High Court (Cap 4A) (“RHC”), from the order of Master Hui dated 6 February 2018.

2.By that order, the learned Master dismissed Mr Sze’s summons seeking to set aside the registration of a Judgment of the High Court of the Republic of Singapore dated 2 March 2017 [1] (“the Singapore Judgment”), pursuant to section 6 of the of the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (the “FJREO”) and Order 71, rule 9 of the RHC.

3.The appeal is by way of de novo re-hearing.

4.Mr Anson Wong SC [2], appearing for Mr Sze, relied on only one ground for setting aside the registration of the Singapore Judgment, namely section 6(1)(a)(iii) of the FJREO.  Mr Wong contended that: (i) Mr Sze did not receive notice of the Singapore Proceedings in sufficient time to enable him to defend those proceedings, and did not appear; and (ii) as a result, the court is bound to set aside registration of the Singapore Judgment [3].

5.The relevant facts are largely uncontroversial. The appeal turns on the proper construction of section 6(1)(a)(iii) of the FJREO, and whether the facts relied on by Mr Sze make good his application for setting aside under that provision.

6.It is common ground between the parties that if the court is satisfied that the criteria in section 6(1)(a)(iii) of the FJREO are fulfilled, the court must set aside registration of the Singapore Judgment.  There is no discretion.

II.  FACTS

7.The facts set out below appear from the affidavits filed by the parties.

The Singapore Proceedings and the registration of the Singapore Judgment in Hong Kong

8.The Singapore Judgment is a default judgment obtained by the applicant/creditor (“Resorts World”) under Order 13 of the Singapore Rules of Court.  The judgment is for S$8,380,577.00 plus interest, costs and disbursements.

9.The relevant chronology of the Singapore Proceedings and the registration of the Singapore Judgment in Hong Kong, is as follows.

10.On 23 November 2016, Resorts World took out a writ of summons in the Singapore Proceedings, indorsed with a Statement of Claim.  The nature of the underlying claim is only a matter of background.  In short, Resorts World operates a casino in Singapore.  It claims for sums said to be outstanding pursuant to a credit agreement entered into between the parties in 2011, and drawn on by Mr Sze. 

11.On 2 December 2016, the High Court of Singapore (the “Singapore Court”) granted Resorts World an order for leave to serve the writ and Statement of Claim on Mr Sze out of the jurisdiction, at any of three specified Hong Kong addresses (the “Three Hong Kong Addresses”) [4], or elsewhere in Hong Kong.

12.On 16 January 2017, the Singapore Court granted Resorts Worldan order for substituted service of (inter alia) the writ and Statement of Claim by: (i) publication of advertisement in two specified newspapers in Hong Kong; and (ii) sending copies to the Three Hong Kong Addresses.

13.Mr Sze did not enter an appearance in the Singapore Proceedings.  On 2 March 2017, pursuant to an application by Resorts World, the Singapore Judgment was entered against Mr Sze in default of entering an appearance.

14.On 19 May 2017, Resorts World took out an ex parte Originating Summons in Hong Kong seeking registration of the Singapore Judgment pursuant to the FJREO.  On 29 May 2017, Master Hui granted an order to that effect.

15.On 2 August 2017, Mr Sze issued his summons in Hong Kong seeking to set aside registration of the Singapore Judgment (ie the summonswhich is the subject of this appeal).  This was, apparently, the first step takenby Mr Sze in either the Hong Kong proceedings or the Singapore Proceedings.  

16.On 30 January 2018, Mr Sze took out summonses before the Singapore Court seeking orders to set aside the Singapore Judgment, and theSingaporean orders for service out of the jurisdiction and substituted service.

17.These applications culminated in a Judgment of Choo Han Teck J [5] dated 27 April 2018, by which the Singapore Court declined to set aside the Singapore Judgment or the Singaporean service orders.  In that Judgment the learned Judge, amongst other things:

(1)  considered and rejected argument that when applying for the Singaporean service orders, Resorts World had failed to make full and frank disclosure in respect of Mr Sze’s place of residence and addresses for service; 

(2)  opined that Mr Sze had been trying to evade service;

(3)  concluded that Mr Sze knew of the Singapore Proceedings at the latest by 15 December 2016;

(4)  considered that Mr Sze could not now complain that he had no notice of those proceedings or that the plaintiff did not make reasonable efforts to bring the cause papers to his notice; and

(5)  rejected Mr Sze’s arguments for setting aside on the basis of a prima facie defence. 

18.Subsequently, Mr Sze filed a Notice of Appeal to the Court of Appeal in Singapore, in respect of the Judgment of Choo Han Tek J.  At the time of the hearing before me, that appeal had not yet been heard.

Mr Sze’s knowledge of the Singapore Proceedings prior to the entry of the Singapore Judgment

19.It is pertinent to consider the extent of Mr Sze’s knowledge of the Singapore Proceedings, prior to entry of the Singapore Judgment on 2 March 2017.

20.The key facts in this respect are, for present proposes, largely uncontroversial.

(1)  Resorts World’s Singapore lawyers—Straits Law Practice LLC (“Straits Law”)—sent a demand letter dated 26 October 2016 (the “Demand Letter”) to Mr Sze.  The Demand Letter informed Mr Sze of the nature and quantum of the claim intended to be made, and that if Mr Sze failed to pay by 2 November 2016, Resorts World would commence legal proceedings.  The Demand Letter was posted to Mr Sze at the Three Hong Kong Addresses, and one address in Fujian (the “Fujian Address”).

(2)  Mr Sze’s affirmation evidence is that he did not receive the Demand Letter as a result of its sending to the Three Hong KongAddresses, but that it was passed to him as a result of being sent to the Fujian Address [6].  On receiving the Demand Letter, Mr Sze sought advice from Messrs Michael Li & Co (“MLC”)‌—Hong Kong solicitors‌—who then sent two letters on his behalf to Straits Law.  By a holding letter dated 2 November 2016, MLC indicated that they acted for Mr Sze and were taking instructions on the Demand Letter.  By a letter dated 10 November 2016, MLC denied the claim against Mr Sze and requested certain particulars, details and documents regarding Resorts World’s claim.

(3)  Mr Sze’s evidence filed in the Singapore Proceedings states thatafter receiving the Demand Letter, he also telephoned his friend, a Mr Shi Nenshing, who Mr Sze alleges accompanied him on the relevant casino trip in 2011.  Mr Sze made certain inquiries of Mr Shi as to why the claim was being pursued against him, to which Mr Shi responded after contacting another person [7].

(4)  Messrs Winnie Mak, Chan & Yeung (“WMCY”)—Hong Kong solicitors appointed for Resorts World—sent a letter dated 12 December 2016 (the “December Letter”) to MLC.  The December Letter is of some importance.  Its contents included the following:

“ Dear Sirs,

Re: Singapore High Court Case No. HC/S 1245/2016

Plaintiff: Resort World at Sentosa Pte Ltd

Defendant: Sze Siu Hung

We are the local process service agent of Straits Law Practice LLC, solicitors and Advocates for the above-mentioned Plaintiff.

We are given to understand that you have entered in correspondence on behalf of the above-named Defendant with our principal, Straits Law Practice LLC in relation to the subject matter claimed in the captioned action.

We should be grateful if you would confirm in return mail within the next 7 days whether you have instruction to accept service of the following documents on behalf of the Defendant:

(1) A sealed copy of the Writ of Summons dated 23^rd November 2016;

(2) A certified true copy of the Statement of Claim dated 23^rd November 2016; and

(3) A sealed copy of the Order of Assistant Registrar Fang Hao Wen Bryan dated 2^nd December 2016 granting leave to serve the Writ of Summons out of jurisdiction.

Please note that if we do not hear from you within the next 7 days, we will arrange to affect personal service of the aforesaid documents on your client without further reference to you.

We look forward to hearing from you soon ….”

(5)  Mr Sze’s evidence is that MLC informed him of receipt of the December Letter, but he replied that he did not wish to give instructions for MLC to accept service on his behalf.  By letter to WMCY dated 15 December 2016, MLC indicated that they had no instructions to accept service on Mr Sze’s behalf.

(6)  By a letter dated 2 February 2017 (the “Service Letter”), WMCY served on Mr Sze the writ, Statement of Claim, and service orders in the Singapore Proceedings.  The Service Letter was sent by ordinary post to the Three Hong Kong Addresses [8].  

(7)  Mr Sze’s evidence is that posting the Service Letter to the Three Hong Kong Addresses was not effective to bring to his attention that letter or the enclosed Singapore Court documents.  It was only around 19 July 2017 that the Service Letter and its enclosures came to his attention (together with a Notice of Registration of Foreign Judgment in the Hong Kong proceedings and Master Hui’s order dated 29 May 2017 [9]).  This was a result of Mr Sze’s wife, Madam Cai Peilei (“Madam Cai”), eventually checking the mailbox of The Leighton Hill Property (one of the Three Hong Kong Addresses) on 18 July 2017.

(8)  Mr Sze’s evidence is that he then sought advice from MLC, and this was the first time he knew that substituted service of the Singapore Proceedings had been effected on him, and that the Singapore Judgment had been obtained and registered in Hong Kong.  This led to Mr Sze taking steps to set aside the Singapore Judgment and its registration in Hong Kong.

(9)  The affirmations of Mr Sze and Madam Cai include some detail as to why, they say, service on the Three Hong Kong Addresses was ineffective to bring to their attention the Singapore Court documents prior to 19 July 2017.  The detail of that evidence is not significant, since I am not asked to reject Mr Sze’s evidence on the point in time at which he received the Service Letter and enclosures.  Notably however, Mr Sze’s evidence is that he lives and works in Shishi City, Fujian, rather than Hong Kong; and that he and Madam Cai, from whom he says he is separated, visit Hong Kong only intermittently [10].

(10)  Mr Sze’s evidence includes travel records of his movements, and those of Madam Cai, in and out of Hong Kong.  It was emphasised to me that between the dates of the Service Letter (2 February 2017) and the Singapore Judgment (2 March 2017), neither Mr Sze nor Madam Cai was in Hong Kong. This was not challenged.

(11)  Mr Damien Wong, for Resorts World, was content to proceed on the basis, for present purposes at least, that Mr Sze did not actually receive the Service Letter or enclosed Singapore Court documents, prior to entry of the Singapore Judgment.  

21.Accordingly, it is for present purposes uncontroversial that prior to entry of the Singapore Judgment, Mr Sze knew: that Resorts World wished to claim against him; the nature and quantum of that claim; that a writ and Statement of Claim had been issued in Singapore; the action number of the Singapore Proceedings; and that an order had been made in Singapore for service out of the jurisdiction.  However, it is also uncontroversial that Mr Sze did not actually receive or know about the Service Letter which formally served him with the Singaporean writ, until after the Singapore Judgment was entered.

22.Mr Anson Wong’s position was that on this set of facts, Mr Sze did not “receive notice of” the Singapore Proceedings “in sufficient time to enable to him defend” those proceedings.  Accordingly, the court is required to set aside registration of the Singapore Judgment under section 6(1)(a)(iii) of the FJREO.

23.Mr Damien Wong’s position was that on this set of facts, Mr Sze did receive notice of the Singapore Proceedings in sufficient time to enable him to defend, at the latest when his solicitors MLC informed him of the December Letter.

III.  LEGAL PRINCIPLES AND ARGUMENT

Section 6(1)(a)(iii) of the FJREO

24.The relevant portion of section 6 of the FJREO provides:

“ 6. (1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment—

(a) shall be set aside if the registering court is satisfied—

…

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law ofthe country of the original court) receive notice ofthose proceedings in sufficient time to enable him to defend the proceedings and did not appear; …”  

25.The parties did not cite any Hong Kong authority on the correct interpretation of, or approach applied to an application under, section 6(1)(a)(iii)[11].  However, reference was made to a number of Australian cases which consider the meaning of provisions with the same wording, in legislation which is identical or similar to the FJREO. 

26.Barclays Bank Limited v Piacun [1984] 2 Qd R 476 is a leading Australian case.  The Full Court of the Supreme Court of Queensland considered section 7(1)(c) of the Reciprocal Enforcement of Judgments Act1959–1981, which has the same wording as section 6(1)(a)(iii) of the FJREO.  

27.In that case, the respondent bank had obtained a judgment in default of appearance in the High Court in England.  The writ had been served by substituted service, but the debtor had not received any actual notice of the proceedings until served in Queensland with an application to register the English default judgment.  The judge below held that it was sufficient for the purposes of the provision that the debtor had received notice of the English proceedings in time to defend them by giving instructions to apply to set aside the default judgment.  The Full Court took a different view, allowed the appeal and set aside registration of the English judgment.

28.I consider it helpful to set out some of the reasoning in Barclays Bank v Piacun.  At pp 478 – 479, Connolly J stated:

“ It is plain that paragraph (c) calls for actual notice, the parenthesis expressly excluding such modes of service as the sticking up of notices, substituted service by advertisement, service by post to last known places of address and the like. … Although the judgment of January 4, 1982 had long since been given his Honour’s view was that the appellant had had sufficient time to defend the action by giving instructions to apply to set aside the judgment and to be allowed to defend. It is at this point that I part company with the learned chamber judge.

While it may well be right to say that the appellant would have good prospects of having a default judgment set aside … I cannot persuade myself that this is what is meant by paragraph (c). The requirement is that the defendant received notice of the English proceedings in sufficient time to enable him to defend them. The reference to sufficient time suggests that the carriage of the proceedings is in the hands of the of his opponent, a situation which obtains up to judgment. After judgment there is no time limitation which he must meet and the language is inappropriate to a defendant’s application to set aside a default judgment of which no more can be asked than that it be reasonably prompt. Again the paragraph contemplates the defendant’s receiving notice in sufficient time to enable him to defend. … What is meant by paragraph (c), in my respectful judgment, is that the defendant must receive notice of the proceedings in sufficient time to enable him to have resisted the making of the judgment whichit is sought to register. The appellant did not receive such noticeand it follows in my judgment that the order under appeal must be set aside.” [12]

29.At pp 482 – 483, Macrossan J reasoned as follows: 

“ It might be thought that the ordinary meaning of the words ‘the defendant in the proceedings in the original Court did not … receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear’ would not cover the case of a defendant who received notice of those proceedings only after final judgment had been entered but who arguably had sufficient time to enable him to move in the original Court to set aside the judgment …. One may wonder whether anything compels the ordinary meaning to be departed from.

Final judgments were liable to be impeached at common law if they had been obtained in a manner contrary to natural justice …. At common law it was necessary to sue on the foreign judgment by suit brought within the jurisdiction if it was desired to obtain theadvantage of that judgment. The 1959 Queensland legislation hasone of its objects the amelioration of this procedural inconvenienceby allowing direct registration in Queensland of the foreign judgment …. While introducing this important procedural amendment, the legislation nevertheless displays concern with necessary safeguardsboth in defining the types of judgment which may be registered here (cf. ss. 4, 5) and in defining the circumstances in which registered judgments shall or may be set aside (s. 7). The provisions of s.7(1)(c) are one example of the latter category.

English legislation of 1920, the Administration of Justice Act, provided that a foreign judgment could not be registered if the judgment debtor was not duly served with the process of the Court and did not appear. It might be thought that the legislation by these words was referring to events which had occurred up to the time the foreign judgment was entered and that it did not have in contemplation the possibility of attempts to set aside judgments after they had been entered in final form. English legislation of 1933, the Foreign Judgments (Reciprocal Enforcement) Act, uses language reminiscent of the Queensland subsection quoted above when it says that the registration of a foreign judgment will be set aside ‘if the judgment debtor, being the defendant in the proceedings, did not receive notice thereof in sufficient time to enable him to defend and he did not appear’. This language is broader in some ways than the terms of the English 1920 Act and it is obviously designed to bolster the right of a judgment debtor to make local resistance to the enforcement of a foreign judgment in cases where he did not have a fully adequate opportunity to opposethe suit which has led to the foreign judgment. These conclusions as to the purpose of the legislation would appear to arise equally from a consideration of the Queensland s. 7(1)(c) and those impressions are strengthened by a broader view of the whole of s. 7(1). Certain kinds of judgment seem to be regarded as unsuitable subjects for the streamlined enforcement procedures which are made available in other cases to foreign judgment creditors. … Considerations similar to those described in respect of s. 7(1)(b), (d) and (e) appear to me to apply to (c). The reference in the last subsection appears to be to cases where during the course of an original suit but prior to entry of judgment a debtor did not receive notice in time to enable him to defend and he did not appear. In these cases the legislative design appears to be to give the debtor a right ex debito justiciae to set aside registration without more ado. Neither the language used nor my view of the policy behind the words of the subsection would permit it to be stretched to cover the case where the debtor had notice only of the fact of a foreign final judgment having been entered against him and so had no more than a subsequent opportunity to move in some fashion to set it aside. …” [13]

30.As noted above, the wording of section 6(1)(a)(iii) of the FJREO is identical to the provision considered in Barclays Bank v Piacun.  Further, the scheme of the Queensland and English legislation discussed in that case, is the same as that of FJREO.

31.On the interpretation of and policy underlying section 6(1)(a)(iii), I follow the reasoning and approach in Barclays Bank v Piacun.

32.I accept, therefore, that “notice” in section 6(1)(a)(iii) of the FJREO means actual notice of the foreign proceedings.  Indeed, this was common ground between the parties.

Meaning of “proceedings” in section 6(1)(a)(iii): alleged broad and narrow approaches

33.Mr Anson Wong’s central argument (for Mr Sze) was that “proceedings” in section 6(1)(a)(iii) means not the relevant foreign proceedings in general, but rather the “very step” in those proceedings which leads to the foreign judgment.

34.It is in the present case insufficient, the argument went, that Mr Sze had actual knowledge of the Singapore Proceedings (or intended proceedings), in general.  Rather, Mr Sze must have actual knowledge of the “very step” leading to the Singapore Judgment.  In this case the “very step” means the service of the Singaporean writ on Mr Sze, since this was the step which triggered the running of time against Mr Sze in Singapore. 

35.In support of this argument, Mr Anson Wong cited the example of a summary judgment application in foreign proceedings.  Mr Wong argued that in such a case, what was required under section 6(1)(a)(iii) was knowledge of the summary judgment application (ie the “very step” leading to judgment).  Knowledge of the existence of the foreign proceedings in general, was insufficient.

36.As Mr Wong recognised, this position was considered and rejected by Fox J in Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 at p 337:

“ The defendant cannot contend that ‘proceedings’ … refers only to a step in the proceedings. …

It seems to me that what is being referred to is the action as a whole.  Put another way, the proceedings referred to are those instituted by the commencement of the action.  This is the natural meaning of the language used. …. The intention of the legislation is that a defendant who has not had knowledge in sufficient time of the fact that the plaintiff has instituted an action for principal relief, and has not entered an appearance, should be able to have registration of the judgment in the foreign court set aside.  Absence of actual knowledge of later interlocutory applications is,so far as concerns the present ground, immaterial.  The defendant’s position in relation to those steps is regarded as being sufficiently protected by the procedures of the court in which he is sued. …”

37.Mr Anson Wong argued that Brockley Cabinet v Pears was wrongly decided.  It represented, he said, a “wider approach” (ie that “proceedings” means the foreign proceedings as a whole), to be contrasted with a “narrow approach” (ie that “proceedings” means the “very step” leading to the foreign judgment).  Mr Wong argued that the narrow approach is supported by other authorities, notably Barclays Bank v Piacun (supra), and Re Dooney [1993] 2 Qd R 362. 

38.I do not accept this argument, for the following reasons.

(1)  I consider that on a natural reading, the references to “proceedings” in section 6(1)(a)(iii) are to the foreign proceedings generally.  If the legislature had intended to introduce a requirement for notice of the specific procedural stepleading to the foreign judgment, it could have done so expressly; but it did not.

(2)  Section 6(1)(a)(iii) expressly differentiates between the concepts of service (referred to in the parenthesis), and “notice” of the foreign proceedings.  This differentiation sits uneasily with the argument that notice of the foreign proceedings necessarily means notice that the foreign proceedings have been served [14].

(3)  I do not think that Barclays Bank v Piacun, correctly read, supports Mr Wong’s argument.  The test applied in that case was whether the defendant received “notice of the English proceedings in sufficient time to enable him to defend” [15].  There was no reference to the particular procedural step leading to judgment.  The Full Court relied on the ordinary meaning of the statutory wording [16].  Further, the scenario in Piacun was very different to the present: the defendant learned of proceedings only after default judgment was entered.  The dicta in Barclays Bank v Piacun should be read in that light.

(4)  As to Re Dooney (supra), which concerned the scenario of a summary judgment application, it is not clear to me that Ryan J was necessarily departing from Brockley Cabinet v Pears (at pp 365 – 366, as suggested by Mr Wong).  Ryan J ultimately applied the test (at p 366) whether the applicant had received notice of the proceedings in sufficient time to enable him to defend, and concluded on the evidence that he had.  The court reasoned that if the applicant failed to keep in contact with his solicitors knowing that proceedings were being instituted, or toenable them to contact him, he could not be heard to say that the judgment must be set aside.  Ryan J did not expressly depart from Brockley v Pears or apply the “very step” approach.

(5)  The above is not to say, necessarily, that the absence of notice of a procedural step in foreign proceedings, or of service per se, can never be relevant to section 6(1)(a)(iii). The question whether a judgment debtor has received notice of foreign proceedings, is answered by reference to the detailed facts of each case.  Further, section 6(1)(a)(iii) requires that the debtor receive notice of foreign proceedings “in sufficient time to enable him to defend the proceedings”.  Accordingly, section 6(1)(a)(iii) includes a somewhat flexible notion of sufficiency, the assessment of which is fact-sensitive, rather than being amenable to a rigid or mechanistic application.  

(6)  Both parties submitted that the concept of natural justice underlies section 6(1)(a)(iii) [17].  I consider that this further militates against an interpretation of the provision so as to impose an inflexible requirement of actual notice of service of the foreign writ, or of the “very step” leading to judgment.  

IV.  APPLICATION OF PRINCIPLES TO THE FACTS

39.In my view, Mr Sze didreceive notice of the Singapore Proceedings in sufficient time to enable him to defend those proceedings, for the purposes of section 6(1)(a)(iii) of the FJREO.  My principal reasons are as follows.

(1)  By the time of the December Letter, Mr Sze had actual notice of the Singapore Proceedings, in the sense discussed above.  He knew that proceedings had been issued by Resorts World in Singapore, that there was a writ, a Statement of Claim, and an order for service out of the jurisdiction.  He knew that ResortsWorld wished to serve him forthwith.  He knew the nature and quantum of the claim which was made against him, and the action number.

(2)  I consider that Mr Sze had ample opportunity to participate in the Singapore Proceedings, had he chosen to do so.  Following receipt of the December Letter, Mr Sze could have instructed MLC to accept service of the Singapore Proceedings, but chose not to do so.  He was in a position to, and did, make factual inquiries as to the claim made against him in order to ascertain his defence, and he was represented by Hong Kong solicitors.  He had previously requested particulars and documents in relation to the claim. Having access to the action number he could, presumably, have made inquiries as to the progress of the Singapore Proceedings.  For the purposes of section 6(1)(a)(iii), the notice which Mr Sze received of the Singapore Proceedings was in “sufficient time to enable him to defend” those proceedings, had he chosen to do so.

(3)  If the matter is tested by reference to broader concepts of natural justice, I consider this to provide further support for Resorts World’s position.  On the facts of this case, I do not think there is any substantial injustice to Mr Sze.

40.These were, in essence, the arguments advanced by Mr Damien Wong on behalf of Resorts World, which I accept.

41.Mr Anson Wong argued that Mr Sze was not obliged, followingreceipt of the December Letter, to instruct MLC to accept service; but rather, was entitled to wait to be validly served.  This, said Mr Wong, was a central flaw in Resorts World’s argument, which in effect obliged Mr Sze to instruct his solicitors to accept service of proceedings, contrary to established principles of service.

42.However, I do not think that this point assists Mr Sze.  It is presumably correct that, as a matter of the Singaporean law of service of process, Mr Sze was free to instruct MLC not to accept service on his behalf.  However, it does not follow that Mr Sze’s decision to instruct MLC not to accept service—or the other factual features referred to above—are irrelevant for the different purpose of section 6(1)(a)(iii) of the FJREO, or to the concepts of “notice of proceedings” and “sufficient time to enable him to defend” in that provision.

43.Next, Mr Anson Wong relied on the reference to personal serviceat the end of the December Letter.  That letter indicated, said Mr Wong, that in the absence of a response, personal service would be effected on Mr Sze.  This created an expectation of personal service, entitling Mr Sze to assume that if he was not personally served, time in Singapore would not start to run.    

44.With respect, I consider this argument to be overplayed.  It is true that the December Letter referred to personal service (see above).  That letter also made clear that Resorts World had appointed a local process service agent in Hong Kong, and that the Singapore Court had made an order for service out of the jurisdiction.  Mr Sze was aware that Straits Law had previously sent the Demand Letter to him at (inter alia) the Three Hong KongAddresses.  Mr Sze was advised by Hong Kong solicitors.  He ought to have known that if he did not instruct MLC to accept service, there was at least a risk that service would be effected at the Three Hong Kong Addresses. 

45.Next, Mr Anson Wong relied on an anomaly which he said would arise, were his argument to be rejected.  In the case of Hong Kong proceedings, if a defendant is outside of the jurisdiction when proceedings are served, a resulting default judgment will be set aside as of right, even if the proceedings had come to the defendant’s notice by other means.  Mr Wong cited the decision of the Court of Appeal in Deng Minghui v ChauShuk Ling [2007] 1 HKLRD 905.  It would be anomalous, argued Mr Wong, if the position were different in respect of overseas proceedings.

46.I do not think there is an anomaly.  The decision in Deng Minghui concerns service of a Hong Kong writ under Order 10, rule 1(2) of the RHC.  The Court’s reasoning is based on the wording of rule 1(2), which is expressly restricted to a defendant who is within the jurisdiction; and the principle that if service of process is irregular, the defendant is entitled to have default judgment set aside as of right.  The present application does notconcern Order 10, rule 1(2), or the question whether service of the Singaporean writ was regular.  The latter is a matter of Singaporean law for the Singapore Court, and indeed in the present case that court had made an order for substituted service (unlike in Deng Minghui).  The present appealconcerns a different provision, with different wording and different purposes.

47.Finally, Mr Anson Wong relied on Maschmann v Wenzel [2007] NSWSC 850.  In that case, Associate Justice Harrison set aside registrationin Australia of a German judgment entered against Mr Andreas Wenzel under section 7(2)(a)(v) of the Foreign Judgments Act 1991. That provision has similar wording to section 6(1)(a)(iii) of the FJREO, and the court concluded that Mr Wenzel had not received actual notice of the foreign proceedings.

48.The facts included that: in April 2005, email correspondence wasexchanged between Mr Wenzel and a solicitor for the liquidator of his father’sestate in bankruptcy, in relation to a Statement of Claim intended to be served on Mr Wenzel; two weeks later Mr Wenzel’s wife called the solicitor asking for documents regarding the proceedings, but was told they would be provided through official channels; in September 2005 service was effected on Mr Wenzel under Swiss law by the leaving of cards in the letterbox of his Swiss property asking him to collect documents from the post office; by the time of that service, Mr Wenzel had left Switzerland for Australia, and did not actually receive the Statement of Claim.

49.The learned Judge held (at §21) that the exchange of emails and telephone conversation in April 2005 did not amount to “notice of the proceedings”, and observed that giving someone notice of proceedings “requires more than simply informing them that proceedings either exist or will exist”.  Mr Anson Wong argued that in the present case, similarly, the December Letter amounted only to informing Mr. Sze that proceedings exist or will exist.

50.However, the question whether a judgment debtor has received notice of foreign proceedings in sufficient time to enable him to defend, is ultimately dependant on the detailed facts of each case.  Whilst there are some factual similarities between Maschmann v Wenzel and the present case, I consider that there are also important differences. 

51.The Judge in Maschmann v. Wenzel relied (§21) on the facts that although Mr Wenzel was expecting to be served with a Statement of Claim through official channels, and knew that this involved his father’s bankruptcy proceedings, he did not know the nature of the proceedings or what relief was claimed against him, nor in which court the proceedings were about to be commenced, nor a file number to identify them; and that even if he had wanted to, he could not make his own enquiries with the court concerning the progress of the proceedings.

52.The present case differs because Mr Sze was provided with all of these details in the December Letter.  Further, when Mr Wenzel was asked by email in April 2005 to provide an address for service, he did so. Two weeks later his wife called the solicitors to request to be provided with the Statement of Claim, but this was not done.  There was therefore no question of Mr Wenzel seeking to avoid being served with proceedings; on the contrary.

V.  DISPOSITION

53.For the above reasons, I dismiss the appeal.

54.I make an order nisi that the respondent/debtor pay the applicant/ creditor’s costs of the appeal, to be taxed if not agreed.

55.Lastly, I thank counsel on both sides for their able assistance in this matter.

Mr Damian Wong, instructed by Winnie Mak, Chan & Yeung, for the applicant/creditor

Mr Anson Wong SC, leading Mr John Hui and Mr Jonathan Chan, instructed by Michael Li & Co, for the respondent/debtor