Read the full judgment text of CACV 000086/1999 on BabelCite. This Court of Appeal judgment was delivered on 28 May 1999 before Nazareth, V.-P. and Leong J.A..
Civil procedure – default judgment – application to set aside – service of writ – Order 10, rule 1(2)(b) – defendant outside jurisdiction – whether service effective – whether irregular judgment must be set aside ex debito justitiae or only on showing of meritorious defence – dishonoured cheque – estate agent's authority and status – imputation of agent's knowledge – whether consideration supported cheque – Civil Appeal No. 86 of 1999 from HCA 11622 of 1998 – plaintiff sued defendant for $900,000 on dishonoured cheque drawn for initial deposit on purchase of Flat 30E Robinson Place under provisional agreement dated 6 July 1998 signed at introduction by estate agent Mr. Law of Hong Kong Property Services (Agency) Ltd – defendant departed for Indonesia on 7 July 1998 and on discovering provisional agreement lacked warranty of full sea view countermanded cheque by phone – plaintiff issued writ on 15 July 1998 served by insertion in letter box at Valiant Park address and obtained default judgment for $900,000 on 11 August 1998 – defendant learned of proceedings on 29 August 1998 – application to set aside dismissed by Master Lok and on appeal by Sears J – Court of Appeal held service ineffective because defendant not physically within jurisdiction and plaintiff knew of her absence and Indonesian address – following Fok Chun Hung v Lo Yuk Shi and Po Kwong Marble Factory Ltd v Wah Yee Decoration Co Ltd, irregular judgment must be set aside ex debito justitiae without inquiry into merits of defence – Honour Finance Co Ltd v Chui Mei Mei doubted – English Court of Appeal decision in Faircharm Investments Ltd v Citibank International plc not adopted as not binding and weight of Hong Kong authority otherwise – defendant further held to have triable defence on status of estate agent Mr. Law and whether consideration supported cheque, distinguishing Hasan v Willson – appeal allowed – default judgment set aside – unconditional leave to defend – defendant to file defence within 14 days – costs nisi to defendant.
Legal issues: Effectiveness of service of writ under Order 10, rule 1(2)(b) when defendant is outside the jurisdiction · Whether an irregular default judgment must be set aside ex debito justitiae without consideration of merits · Whether the defendant has a meritorious defence to the claim on the dishonoured cheque
Outcome: Appeal allowed; default judgment set aside; defendant granted unconditional leave to defend.
Cites 1 case