Ho Chung Yin and Another v. Chung Wai Chun Susanna

DCCJ 7866/2002

[2025] HKDC 181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7866 OF 2002

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BETWEEN

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DECISION

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A. Introduction

1.By a Judgment dated 2 March 2009 (the “Judgment”), HH Judge Chow (the “learned Judge”) ruled in favour of the plaintiffs against the defendant, ordering (1) the refund of the deposit of $80,000.00 to the plaintiffs, together with interest thereon; (2) payment of liquidated sum of $80,000.00 to the plaintiffs, together with interest thereon; and (3) costs of this action to be taxed if not agreed, with Certificate for Counsel.

2.More than 15 years later, on 18 April 2024, the defendant issued a summons seeking to set aside the Judgment pursuant to O13, r9 RDC on the grounds that service of the concurrent writ of summons on the defendant was irregular, or alternatively, that the defendant has a good defence to this action. The defendant’s application is supported by her affirmation filed on 18 April 2024 (“defendant’s Affirmation”).

3.On 9 August 2024, the defendant issued another summons seeking leave to amend the originating summons by adding further or alternative relief pursuant to O35, r2 RDC, for the Judgment be set aside on the grounds that it was obtained in the absence of the defendant. Additionally, the defendant sought leave to make this application out of time.

4.On 9 September 2024, both summonses were heard before Master Andrea Yu (the “learned Master”). At the hearing, the learned Master granted the defendant leave to amend the originating summons (the “Amended Summons”) but dismissed the Amended Summons.

5.After the dismissal of the Amended Summons, the defendant filed a summons on 31 December 2024, seeking leave to adduce fresh evidence on appeal, namely the affirmation of Kimberly L Osborne (“Ms Osborne”), affirmed on 18 December 2024 (“Osborne’s Affirmation”).

6.This is the appeal by the defendant against the learned Master’s decision. At the hearing on 6 January 2025, the 1^st and 2^nd plaintiffs were represented by Mr So (with Mr Chan). The defendant was represented by Mr Lam.

7.At the conclusion of the hearing, judgment was reserved. This is my Judgment on the defendant’s appeal against the learned Master’s decision, as well as on the defendant’s application to adduce Osborne’s Affirmation on appeal. I will first address the defendant’s appeal, followed by the consideration of the defendant’s application to adduce fresh evidence.

B. Background of the plaintiffs’ claim

8.The defendant is and was at all material times the registered owner of 1/F, 10 Yi Pei Square, Tsuen Wan, New Territories (the “Property”). By a conveyance on sale dated 10 September 1969, with memorial no TW 83548 (the “1969 COS”), the defendant's mother assigned half of her share in the Property to the defendant. Furthermore, by another conveyance on sale dated 21 May 1973, with memorial no. TW102524 (the “1973 COS”), the defendant's mother assigned the remaining half of her share in the Property to the defendant.

9.By a provisional sale and purchase agreement dated 28 October 2002 (the “Agreement”), the defendant agreed to sell, and the plaintiffs agreed to purchase, the Property for $800,000. A deposit of $20,000 was paid upon signing the Agreement, and $60,000 was to be paid upon signing the formal sale and purchase agreement on or before 4 November 2002. Although no formal agreement was signed, the further deposit of $60,000 was duly paid by the plaintiffs to the defendant, bringing the total deposit to $80,000. The balance of the purchase price, $720,000, was to be paid upon completion on or before 2 December 2002.

10.At all material times, Messrs Kevin L H Kwong & Co (“KKC”) represented the plaintiffs in their purchase of the Property, while Messrs S H Chan & Co (“SHC”) represented the defendant in her sale of the Property.

11.Between 6 November 2022 and 2 December 2002, correspondence ensued between KKC and SHC regarding requisitions on the title of the Property. Ultimately, SHC contended that all the requisitions had been satisfactorily answered and that good title to the Property had been shown. They further asserted that since the plaintiffs failed to pay the balance of the purchase price on the completion date, the defendant accepted the plaintiffs’ repudiatory breach and forfeited the deposits paid under the Agreement.

12.In contrast, KKC argued that the defendant had not satisfactorily answered the plaintiffs’ requisitions and that her failure constituted a breach of the Agreement, making her liable to return the deposits to the plaintiffs.

13.On 20 December 2002, the plaintiffs issued a writ of summons against the defendant, claiming, inter alia, the repayment of the deposit of $80,000, liquidated damages of $80,000, and a declaration that the defendant had failed to satisfactorily and sufficiently answer plaintiffs’ requisitions and had not shown good title to the Property.

C. Procedural History Relevant to the Setting Aside Application

14.There is a lengthy procedural history to this litigation. I outline below the parts relevant to the application to set aside:

(1) On 11 February 2003, the plaintiffs filed a Joint Affirmation seeking leave to issue a concurrent writ of summons against the defendant and to serve it out of jurisdiction at 15329 Jordans Journey Drive, Centerville, Virginia, United States (the “Jordans’ Address”). This address was disclosed by the defendant in a Statutory Declaration signed by her on 4 November 2002 (the “signed SD”) and two draft Statutory Declarations attached to a letter from SHC to KCC dated 29 November 2002 (collectively referred to as the “SDs”)[1];

(2) By an order of Master Tam dated 15 March 2003, leave was granted to the plaintiffs to issue a concurrent writ of summons and serve a sealed copy at the Jordans’ Address;

(3) On 14 April 2003, the plaintiffs issued a concurrent writ of summons against the defendant, identifying her address as the Jordans’ Address;

(4) By a letter dated 25 April 2003, the Government Secretariat transmitted a request to US Central Authority for service of judicial documents on the defendant in accordance with Article 5 of the Hague Convention[2], which include the concurrent writ of summons herein;

(5) The plaintiffs assert that the concurrent writ of summons was personally served on the defendant at the Jordans’ Address, a claim that the defendant denies. I will analyse this issue in detail later in this Judgment;

(6) On 31 December 2003, the plaintiffs issued a summons pursuant to O19, r7 RDC seeking judgment against the defendant on the grounds that no notice of intention to defend had been served (the “Judgment Summons”);

(7) On the same day, the plaintiffs filed a 3^rd Joint Affirmation in support of their application under the Judgment Summons (“Ps’ 3^rd Affirmation”) and a 4^th Joint Affirmation seeking leave to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant out of jurisdiction;

(8) By an order of Master LC Tam dated 25 March 2004, leave was granted to the plaintiffs to serve the Judgment Summons and Ps’ 3^rd Affirmation out of jurisdiction at the Jordans’ Address;

(9) However, the Judgment Summons and Ps’ 3^rd Affirmation could not be served on the defendant at the Jordans’ Address[3];

(10) On 1 April 2005, the plaintiffs filed a 5^th Joint Affirmation informing the court that the Judgment Summons and Ps’ 3^rd Affirmation had not been served on the defendant at the Jordans’ Address. They sought an order for substituted service, proposing to publish an advertisement once in a newspaper circulated in the US and to serve the documents to the address at 1988 Vista Lakes Drive, Orange Park, Florida 32003-7312, US (the “Vista Lakes’ Address”);

(11) However, the Judgment Summons and Ps’ 3^rd Affirmation could not be served on the defendant at the Vista Lakes’ Address;

(12) By an order dated 28 June 2007, Master R. Lai granted leave to the plaintiffs to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant by, inter alia, sending copies to both the Jordans’ Address and the Vista Lakes’ Address. Additionally, a notice of the proceedings was to be advertised once in a publication circulating in Virginia and Florida, the US, which was duly accomplished by the plaintiffs;

(13) On 3 September 2008, the Judgment Summons was heard before DDJ Fredrick HF Chan. By an order dated the same date, the learned Deputy District Judge adjourned the Judgment Summons for a trial hearing to be heard before a District Judge sitting in court and gave consequential directions for the trial hearing to proceed, including that, once the trial date was fixed, the plaintiffs were to give 14 days’ notice of the trial date to the defendant by substituted service;

(14) By letters dated 27 October 2008 sent to the defendant at both the Jordans’ Address and the Vista Lakes’ Address, KKC enclosed a Notice of Adjourned Hearing dated 21 October 2008, informing the defendant that the trial hearing was scheduled before the learned Judge on 2 March 2009;[4] and

(15) On 2 March 2009, the trial hearing took place before the learned Judge. At the hearing, the plaintiffs were represented by counsel, while the defendant was absent. The plaintiffs called the 1^st plaintiff to give evidence, who adopted the plaintiffs’ 3^rd to 9^th Joint Affirmations as his evidence-in-chief. At the conclusion of the trial hearing, the learned Judge entered judgment in favor of the plaintiffs against the defendant as set out in §1 above. A copy of the Judgment is placed before this court, along with a copy of the transcript of the audio recording of the trial. The Judgment is the one the defendant seeks to set aside.

D. Issues

15.From counsel's written and oral submissions, the following issues are to be decided by the Court:

(1) Was the service of the concurrent writ of summons on the defendant regular?

(2) Does O35, r2 RDC apply to this application? If it does, should the Court set aside the Judgment?

(3) Does O13, r9 RDC apply to this application? If it does, should the Court set aside the Judgment? A related issue is whether there is any difference in the applicable legal principles for setting aside a judgment under O35, r2 and O13, r9;

(4) Should the Court grant leave for Osborne’s Affirmation to be admitted on appeal?

E. Was the service of the concurrent writ of summons on the defendant regular?

E.1 Applicable legal principles

16.O10, r(1)(1) RDC provides that “a writ must be served personally on each defendant by the plaintiff or his agent”.

17.O11, r5 contains general provisions for service of writ out of jurisdiction. O11, r5(1) provides, in pertinent part, that O10, r1(1) (4) (5) and (6), as well as 65, r4 RDC, shall apply in relation to the service of a writ notwithstanding that the writ is to be served out of the jurisdiction.

18.Additionally, O11, r6(2A) RDC specifies that where a writ is to be served on a defendant in any country that is a party to the Hague Convention, it may be served through the designated authority under the Hague Convention for that country, namely, the Central Authority.

E.2 The service of the concurrent writ of summons in the present case

19.By a certificate/attestation dated 11 June 2003, it was certified, in conformity with Article 6 of the Hague Convention[5], that the concurrent writ of summons was served and delivered to the defendant at 9:34pm on 3 June 2003.

20.An affidavit of service sworn on 5 June 2003 by the process server Christine A. Davis (“Davis’ Affidavit”), declared that she served the concurrent writ of summons on the defendant, by then and there personally delivering one true and correct copy, by then presenting to and leaving the same with the defendant, a person of suitable age and description who stated the Jordans’ Address to be her residence and usual place of abode.

21.O11, r5(5) provides that:

“An official certificate stating that a writ as regards which rule 5A or rule 6 has been complied with, has been served on a person personally, or in accordance with the law of the country or place in which service was effected, on a specified date, being a certificate—

(a) by a British consular authority in that country or place, or

(b) by the government or judicial authorities of that country or place, or

(c) by any other authority designated in respect of that country or place under the Hague Convention,

shall be evidence of the facts so stated.”

22.As fairly accepted by Mr Lam, the significance of the certificate/attestation is that, by virtue O11, r5(5) RDC, it shall be evidence of the facts so stated[6].

23.Regarding the meaning of the phrase “shall be evidence of the facts so stated”, I have considered the following relevant authorities:

(1) In Hong Kong Housing Authority v Hsin Yieh Architects & Associates Ltd & Ors (No 2) [2006] 4 HKLRD 107, Reyes J accepted (at §§75-76) counsel’s submissions that the court could not go behind the certificates given by the Central Authority, because by O11 r5(5)(b), these certificates constitute evidence that, for the purpose of foreign service, it has been effected in accordance with the Hague Convention. The court is entitled to assume that proper service has been made under the Hague Convention;

(2) In Eastgate Advisors Ltd v. Zhu Liang & Anor [2020] 3 HKC 6, DHCJ Bernard Man SC observed (at §36) that in the face of a certificate under O11, r5(5), the defendant is required to adduce compelling evidence to prove that the certified foreign service was invalid; and

(3) In Sin Hung Chong v Yip Chui Leung, the person appointed to represent the estate of Wong Sun Tai (黃新娣), the Deceased [2024] HKDC 778, DDJ Sabrina Lau followed (at §54) Hong Kong Housing Authority and Eastgate Advisors.

24.Applying the legal principles to the present case, I find that the concurrent writ of summons was personally served on the defendant at the Jordans’ Address at 9:34pm on 3 June 2003. Furthermore, I find that the defendant has failed to provide compelling evidence to prove that the service was irregular:

(1) The certificate/attestation states that the concurrent writ of summons was served and delivered to the defendant at the Jordans’ Address at 9:34pm on 3 June 2003. This is supported by Davis’ Affidavit, which confirms that she personally delivered one true and correct copy of the concurrent writ of summons to the defendant. The defendant identified the Jordans’ Address as her residence and usual place of abode;

(2) The address for service, namely the Jordans’ Address, was provided by the defendant herself in the SDs. I do not find the defendant’s explanation ‒ that she did not pay attention at the time of the conveyance and therefore overlooked an outdated address in the SDs[7] ‒ to be compelling. A statutory declaration is an important legal document that obligates the signatory to ensure the accuracy of the information contained therein, including the address of the deponent. Thus, I find that the SDs serve as compelling evidence that as of 4 November 2002, the defendant was residing at the Jordans’ Address. The defendant admitted that she moved to the Jordans’ Address and used it as her matrimonial home in 1988 but claimed that she and her family moved to 1601 Pine Bluff Drive, Lynchburg VA 24123-4938, the U.S. (the “Lynchburg Address”) around mid-2000. This later allegation contradicts the Jordans’ Address provided by the defendant in the SDs, and I have no hesitation in rejecting it[8];

(3) The defendant relied on a letter dated 10 June 2003 from one Suzanne A. Frollini (“Ms Frollini”), who provided her address as the Jordans’ Address. In this letter, Ms Frollini informed the District Court that on 3 June 2003, she received the enclosed document and stated that there was no such person at that address. However, I agree with the learned Master’s observation that the mere existence of a letter containing a bare denial from an individual, without any further evidence or affirmation from that person, as well as the lack of information regarding the identity and relationship of this individual to the defendant, is insufficient to prove to the contrary on the balance of probabilities. Furthermore, Ms Frollini stated that she never met the “Former Tenants,” but the defendant was clearly not a former tenant according to her evidence;

(4) None the documents produced by the defendant constitute compelling evidence that the concurrent writ of summons was not served on her at the Jordans’ Address: -

(a) The driver’s licence issued to the defendant by Virginia on 7 January 2002, which states her address as the Lynchburg Address, is not compelling evidence that she was not residing at the Jordans’ Address when the concurrent writ of summons was served on 3 June 2003. As noted above, the defendant’s allegation that she moved to the Lynchburg Address around mid-2000 is contradicted by the Jordans’ Address provided by her in the SDs;

(b) The driver’s license issued to the defendant by Florida on 14 October 2003, which lists her address as 2164 Autumn Cove, Orange Park FL 32003-3229 (the “Autumn Cove Address”), is also not compelling evidence that she was not residing at the Jordans’ Address at the time when the concurrent writ of summons was served on 3 June 2003, since it was issued after the date of service. The same reasoning applies to the driver’s license issued by Florida on 10 July 2018, which states the defendant’s address as 2162 Autumn Cove CIR Fleming Island FL 32003-3229, and to the correspondence between the defendant and the Appeal Tribunal (Building) in 2007 and 2009.

25.I will now address Mr Lam’s submissions regarding service:

(1) First, Mr Lam submitted that the process server failed to take sufficient steps to ensure that she had found the correct person on whom the concurrent writ of summons was served, claiming that the process server “apparently” did not even ask whether the person served was the defendant. With all due respect, I do not agree. As noted above, the certificate states that the concurrent writ of summons was served and delivered to the defendant. Additionally, Davis’ Affidavit confirms that the concurrent writ of summons was personally delivered to the defendant, who identified the Jordans’ Address as her residence and usual place of abode;

(2) Second, Mr Lam submitted that the description of the person in the certificate/attestation ‒ “Asian female, 30’s, black hair, black eyes, glasses” ‒ did not watch with the defendant, who was approximately 56 years old in June 2003 and did not wear glasses. Again, I must respectfully disagree. There is no evidence regarding the defendant’s physical appearance at the time the concurrent writ of summons was served in June 2003, and a bare allegation from the defendant that she did not wear glasses does not constitute compelling evidence to disprove the details stated in the certificate/attestation;

(3) Third, Mr Lam relied on the following sentence from §13/9/5 of the then Hong Kong Civil Procedure 2004, Vol 1, cited by the Court of Appeal in Bank of China (Hong Kong) Ltd v Cheung King Fung [2007] 1 HKLRD 462:

“When a defendant deposes that he has not received the writ through the post, the court has little option but to believe this, save when there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him”.

I do not think the sentence assists Mr Lam because in Bank of China, Tang JA (as he then was) stated (at §§33-34) that:

“33. We do not read this as suggesting that the Court must accept a defendant's assertion no matter how improbable.

34. a defendant is required to provide “convincing evidence…”

In this case, as analysed above, the defendant has failed to provide compelling evidence to disprove the statements made in the certificate/attestation.

26.The above findings are sufficient for this Court to conclude that the concurrent writ of summons was personally served on the defendant at the Jordans’ Address on 3 June 2002. It is, strictly speaking, unnecessary to me to address the plaintiffs’ subsequent failed attempts to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant. However, for the sake of completeness, I will address these as well, beginning with the plaintiffs’ first failed attempt to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant.

E.3 The plaintiff’s first attempted but unsuccessful service of the Judgment Summons and Ps’ 3^rd Affirmation.

27.By a certificate/attestation dated 30 May 2004, the process server, Eddie W Null, Sr, declared that the Judgment Summons and Ps’ 3^rd Affirmation had not been served on the defendant at the Jordans’ Address due to the following facts:

“5-29-2004/2:30 PM – Not found. Evasive and uncooperative Oriental female, who identified herself as Fo Lee, said CHUNG WAI CHUN SUSANNA moved to 1988 Vista Lakes Dr, Orange Park, Florida 32003-7312, phone number 904-278-7368. Neighbours at 15329 JORDANS JOURNEY DR, CENTREVILLE, VA, state CHUNG WAI CHUN SUSANNA is also known as Susanna Lawson. Susanna Lawson has an active phone listing at the Centreville, VA address of 703-266-2884 and is also listed as resident at Orange Park, FL address.”

28.As the certificate serves as evidence of the facts stated herein, I accept Mr So’s submissions that the Oriental female who identified herself as Fo Lee was aware that the defendant had moved to the Vista Lakes’ Address, with the phone number 904-278-7368, and that the defendant is also known as Susanna Lawson. Furthermore, the defendant also has an active phone listing of 703-266-2884 at the Jordans’ Address and is also listed as a resident at the Vista Lakes’ Address.

29.Therefore, I find compelling evidence that the defendant had an active phone listing at the Jordans’ Address before and as of 29 May 2004. This further supports my conclusion that the concurrent writ of summons was personally served on the defendant on 3 June 2003 and contradicts the defendant’s allegation that she and her family moved to the Lynchburg Address around mid-2000.

30.To the extent necessary, I hold that the following allegations made by the defendant[9] do not constitute compelling evidence that would prompt a different conclusion:

(1) That the Vista Lakes’ Address was not her address;

(2) That the phone number 904-278-7368 did not belong to her;

(3) That she “should have” moved to live in the Autumn Cove Address by October 2003; and

(4) Regarding the defendant’s allegation that the telephone number 703-266-2884 “was” her home telephone number, she did not specify which “home” she was referring to. At the hearing, Mr Lam was unable to clarify which “home” the defendant meant. If it refers to the Jordans’ Address, then it supports Mr Null’s statement that the defendant had “an active” phone listing of 703-266-2884 at the Jordans’ Address as of 30 May 2004.

E.4 The plaintiffs’ second failed attempt to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant

31.I will now address the plaintiffs’ second failed attempt to serve the Judgment Summons and Ps’ 3^rd Affirmation on the defendant.

32.By a certificate/attestation dated 22 July 2005, the process server, Randall R. Hoke, declared that the Judgement Summons and Ps’ 3^rd Affirmation had not been served on the defendant at the Vista Lakes’ Address for the following reason:

“Server was informed by a foreign female that defendant is currently out of the country. Defendant’s return is unknown. Service was attempted on July 5, 2005 at 13:50.”

33.Given that the certificate serves as evidence of the facts stated therein, I accept Mr So’s submissions[10] that the “foreign female” did not deny that the defendant was residing at the Vista Lakes’ Address. Instead, she indicated that the defendant was then out of the country and her return was unknown. Furthermore, it can be inferred that the “foreign female” personally knew the defendant and her whereabouts.

34.To the extent necessary, I hold that the following allegations made by the defendant[11] do not constitute compelling evidence that would prompt a different conclusion:

(1) That she could not recall whether she was out of the country at that time; and

(2) That it was incorrect for the “foreign female” to say that she might “return,” given that she never resided at the Vista Lakes’ Address.

F. The applicability of O35, r2 RDC to this application

F.1 Does O35, r2 RDC apply to this application?

35.O35 r2 RDC provides:

“(1) Any judgment or order obtained where one party does not appear at the trial may be set aside by the Court on the application of that party, on such terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial.”

36.The peculiar circumstance of this case is that, although the Judgment Summons was issued pursuant O19, r7 of RDC, there was a trial hearing before the learned Judge following the order of DDJ Frederick Chan. The Judgment was entered against the defendant “after an adjudication on the merits” at the trial where the defendant did not appear: Shocked v Goldschmidt [1998] 1 All ER 372 at 378a-b per Leggatt LJ. Consequently, I take the view that O35, r2 applies to the defendant’s application.

F.2 Is there any difference between the principles applicable to an application to set aside a judgment pursuant to O13, r9 and O35, r2?

37.Mr Lam submitted that whether relying on O13, r9 or O35, r2 to set aside a judgment, the legal principles involved are the same. With respect, I do not agree:

(1) In the leading English Court of Appeal authority on this issue, Shocked v Goldschmidt [1998] 1 ALL ER, Leggatt LJ observed (at §382c-d) that:

“To equate judgments by default with judgments given after a trial is heretical. If it were correct, a party who chose not be present at trial could afterwards change his mind, and provided he was prepared to pay the costs thrown away could always procure a rehearing of the matter, however much time of the court had been wasted by his decision, whatever the inconvenience to his opponent, and however little his own conduct merited indulgence. That is not the law.”

(2) His Lordship further observed (at 381j) that in applications to set aside default judgments, the court is primarily concerned to see whether there is a defence on the merits. In contrast, in applications to set aside a judgment obtained after a trial in which the defendant did not appear, the predominant consideration is the reason why the party against whom judgment was given absented himself. This distinction was also recognized by the Court of Appeal in Lau Kam Chuen v Lee Ching [2003] 2 HKLRD 1018 (at §12 per Cheung JA).

F.3 Should the court’s discretion be exercised in favor of the defendant to extend time?

38.In the present case, the application to set aside the Judgment was not made within 7 days after the trial; instead, it was made on 18 April 2024, more than 15 years after the Judgment was entered against the defendant on 2 March 2009. Plainly, the defendant’s application is significantly out of time, and she requires an extension of time granted by the court to proceed with this application pursuant to O35, r2(2) RDC.

39.In Nantong Angang Garments Co Ltd v Hellmann International Forwarders & Ors [2005] 4 HKC 86, which concerned an application to set aside a judgment under O 35, r2, the Court of Appeal held (at §21 per Le Pichon JA) that the correct principle to be applied in the exercising of the court’s discretion is not that before any discretion is exercised, there must first be an acceptable reason for any delay. It is instead the principle that all matters, including the adequacy of any reason for delay, must be considered, the one to be weighed against the other, in the exercise of the court’s discretion.

40.Applying the relevant principles to the facts of this case, including the adequacy of any reason for the delay, I am not persuaded that an extension of time should be granted to the defendant to take out this application. I consider the following relevant factors from Chiu Sin Chung v Yu Yan Yan [1993] 1 HKC 225 at 228:

(1) Length of the delay – The delay exceeds 15 years and is, in my view, both inordinate and inexcusable. Even if I count from the date the defendant alleged that she became aware of the proceedings (ie, May 2015)[12], she did not take out any application to set aside the Judgment until 18 April 2024, nearly 9 years later;

(2) Reasons for the delay – I am not satisfied that the defendant has provided any good explanation for the delay.

(a) First, the defendant referred to without prejudice negotiations between her solicitors, Messrs TC Foo & Co (“TCF”), and KKC in August and September 2015. However, I believe the existence of these negotiations should not have prevented the defendant from taking out the application as soon as she became aware that Judgment had been entered against her;

(b) Second, the defendant mentioned that, based on the advice from her solicitors, the charging order absolute registered against the Property would cease to have effect after 5 years from the date of registration. She stated that she “did not bother” to ask TCF to chase KCC for their reply and instead adopted a “wait and see” attitude[13]. This reasoning is unconvincing. Regardless of whether a charging order would cease to have effect after 5 years, Judgment had already been entered against her as early as 2 March 2009. By adopting a “wait and see” attitude, she is solely responsible for her inaction;

(c) Third, the defendant cited the outbreak of the COVID-19 pandemic in early 2020 as a reason for withholding her application until after the pandemic. She also stated that she found it difficult to travel from the US to Hong Kong due to old age and poor health. However, this reasoning is also unconvincing. The defendant has not provided any medical certificate to substantiate her claim of poor health. Moreover, her difficulty in traveling from the US to Hong Kong is irrelevant, as her affirmation in support of her application to set aside the Judgment was affirmed in Florida, the U.S;

(d) The circumstances indicate that, based on her own evidence, the nearly 9-year delay in applying to set aside the Judgment was a deliberate decision on the defendant’s part. I do not see why the court should exercise its discretion in favour of the defendant to extend time when she made a conscious decision not to pursue her application for nearly 9 years.

As A Cheung J (as the Chief Justice then was) observed in Wong Hou Wan v Wan Hoi Wei, HCA 578/2006 (unrep, 18 February 2011) (at §32), a case concerning setting aside a default judgment under O13, r9, “there is … a world of difference between a party who has simply been dilatory in applying to set aside a default judgment and someone who has decided with his eyes wide open not to set aside the default judgment but to let it stand”. The present case falls into the latter category.

(3) The degree of prejudice to the would-be respondent if extension is granted ‒ In the present case, the Judgment was entered in favour of the plaintiffs on 2 March 2009, and charging orders had been registered against the Property. The prejudice to the plaintiffs in evident. If the Judgment were set aside, the plaintiffs would be required to litigate the matter afresh, 15 years after Judgment had been entered against the defendant. This would necessitate undoing everything they had undertaken during this period, including applying for and registering the charging orders against the Property. If the Judgment were set aside, the charging order will also have to be set aside, and the plaintiffs will lose their priority under the Land Registration Ordinance. I do not believe it could be justifiable, 15 years after the Judgment was entered, to deprive the plaintiffs of their rightful benefits and compel them to litigate a claim that for 15 years they had no reason to anticipate would be contested.

41.Due to the inexcusable and inordinate delay, the lack of any satisfactory explanation for this delay, and the prejudice that would be caused to the plaintiffs if an extension of time is granted, I am of the view that the court’s discretion should not be exercised in favour of the defendant to extend the time, regardless of the merits of the defendant’s defence. However, for the sake of completeness, I will address the merits of the defendant’s defence in section F.4 below.

F.4 Consideration of the factors in Lam Kam Chuen

42.However, if my discretion to extend time should be exercised in favour of the defendant, then O35, r2(1) will become applicable, and whether the court should exercise its discretion thereunder to set aside the Judgment necessitates consideration of the factors articulated by the Court of Appeal in Lau Kam Chuen and their application to the facts of the present case.

43.In Lau Kam Chuen, the Court of Appeal (at §11 per Cheung JA) applied the following factors set out by Leggatt LJ in Shocked v Goldschmidt concerning applications to set aside a judgment obtained when one party does not appear at the trial:

“(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(2) Where the setting aside of judgment would entail a complete retrial on matters of facts which have already been investigated by the court the application will not granted unless there are every strong reasons for doing so.

(3) The court will not consider setting aside judgment regularly obtained unless the party applying enjoy real prospects of success.

(4) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(5) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(6) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(7) There is a public interest in there bring an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.”

Lau Kam Chuen has been consistently applied in Hong Kong. See Karla Otto Ltd v Bulent Eren Bayram & Ors, HCA 821/2011 (unrep, 18 May 2017), at §§2-3 per Au-Yeung J; Tang Pat Yu & Anor v Ng Fung Fa, Executrix of the estate of Tang Pat Yu, Deceased & Anor [2023] HKDC 1320 at §17 per DDJ Isaac Chan; Lam Man Ying v So Wah Kwan (the administrator of the estate of Chiu Lai Ching, deceased, formerly traded as Beauty Regent [2023] HKDC 1277 at §7 per DDJ Alan Kwong (as he then was).

44.In considering these factors, I bear in mind the principle that each case depends on its own facts, and that the weight to be accorded to the relevant factors may alter accordingly: Shocked v Goldschmidt (supra) at §381e-f per Leggatt LJ.

Factors 1 & 2 – notice of proceedings; disregarding the opportunity to appear; explanation for the absence

45.As Leggatt LJ observed in Shocked, in an application to set aside a judgment obtained when one party does not appear at the trial, the predominant consideration is the reason why the party against whom judgment was given absented himself.

46.Having already found that the concurrent writ of summons was personally served on the defendant, she had or must have actual notice of the proceedings. Furthermore, by order dated 28 June 2007, Master R Lai ordered substituted service of the Judgment Summons and P’s 3^rd Affirmation, as well as notice of the proceedings, be made on the defendant, which the plaintiffs duly accomplished. Additionally, by order dated 3 September 2008, DDJ Frederick Chan also ordered substituted service of the notice of the trial date, which the plaintiffs also accomplished. Therefore, the defendant also had constructive notice of the proceedings and of the hearing.

47.I would also add that a copy of the writ of summons was registered against the Property on 28 December 2002, and copies of the charging order nisi and the charging order absolute were registered against the Property on 8 April 2009 and 17 July 2009 respectively. Additionally, a copy of the charging order absolute was again registered against the Property on 30 June 2014 and 31 May 2015 respectively. In her Affirmation, the defendant did not address her knowledge of the writ of summons and of the charging orders registered against the Property, except to make a bare allegation that she only became aware of the registration of the charging order absolute against the Property in May 2015. I find it difficult to accept that the defendant, who was the sole owner of the Property, was unaware of the registration of the writ of summons against the Property on 28 December 2002, or the charging orders against the Property on 8 April 2009, 17 July 2009 and 30 July 2014 respectively, until May 2015.

48.Apart from making a bare allegation that she had no notice of the proceedings, which I have rejected, the defendant has failed to provide any explanation for not appearing at the trial hearing. Since the defendant had notice of the proceedings and the trial hearing but chose to disregard the opportunity to appear and participate in the trial, she ought to be bound by the Judgment. Moreover, given that the defendant’s absence was deliberate and not due to accident or mistake, the court ought not to allow a rehearing. This alone is sufficient for the Court to dismiss the application under O35, r2(1), irrespective of the merits of the defence.

49.In reaching this conclusion, I have followed the approach adopted in Harley v Samson [1914] 30 T L R 450, which was approved by Kaplan J in Tong Yi Sang v Fung Lam & Ng & Ors [1993] 2 HKC 665.

50.In Harley v Samson, the plaintiff brough an action against the defendant concerning two cheques issued for a gambling debt. The defendant did not appear at the trial, leading the plaintiff to obtain judgment in this favour; however, no proceedings were initiated to enforce it. Subsequently, a moneylender obtained a judgment against the plaintiff, and the judgment debt owed by the defendant to the plaintiff was assigned to him. One year after the judgment had been obtained against the defendant, he applied to have it set aside. Scrutton J observed that if the facts relied on by the defendant had been brought to his attention at the time, he would not have entered judgment for the plaintiff. Nevertheless, after the year-long delay from the date of the judgment and the subsequent assignment of the judgment debt, the judge refused to exercise his discretion to set aside the judgment. This case establishes the principle that the court has a discretion to refuse to set aside a judgment obtained at trial when the defendant does not appear, even if a good defence exists, if there has been inordinate and inexcusable delay and when the setting aside would cause prejudice to the plaintiff.

51.In Tong Yi Sang, within the context of an application to set aside a default judgment under O13, r9, Kaplan J approved the following proposition (at §671D-E) from §13/9/9 of the then Supreme Court Practice 1993, which cited Harley v Samson with approval: “…if delay is coupled with prejudice occasioned to the plaintiffs or a bona fide assignee of the judgment debt, the court may refuse to set aside the judgment.”

52.Furthermore, as I will address below, in the context of setting aside a regular default judgment pursuant to O13, r9, the courts have adopted the approach that if there is inordinate and inexcusable delay, lack of satisfactory explanation for the delay, and prejudice to the plaintiff, the courts may refuse to set aside a regular default judgment even if the defendant can demonstrate a defence with a real prospect of success.

53.However, for completeness, I will also consider the other factors.

Factor 3 – setting aside the Judgment would entail a complete retrial?

54.The trial hearing on 2 March 2009 lasted for a morning. The plaintiffs were represented by counsel, who filed skeleton submissions and a list of authorities. The plaintiffs called the 1^st plaintiff to give evidence, who adopted the plaintiffs’ 3^rd to 9^th Joint Affirmations as his evidence-in-chief. He was not asked any questions. Counsel for the plaintiffs then proceeded directly to closing submissions, dealing primarily with the issue of whether the requisitions had been satisfactorily answered. The learned Judge posed several questions to counsel on this issue. Then, the learned Judge delivered oral judgment, which was subsequently followed by a written judgment. If there were to be a retrial, it would not take long.

Factor 4 – real prospects of success on the part of the defendant?

55.As noted in §45-53 above, factors 1 and 2 alone are sufficient for this Court to dismiss the defendant’s application, irrespective of the merits of the defence. I address whether the defendant has a real prospect of success merely for the sake of completeness.

56.In this case, the parties have addressed the court with respect to four contested requisitions. I shall address each of them in turn. Before doing so, I will set out the applicable legal principles regarding the duty of a vendor to prove good title and answer requisitions satisfactorily, which are well-established.

57.In Active Keen Industries Ltd v Fok Chi-Kong [1994] 1 HKLR 396, Litton JA (as he then was) stated at 405 that:

“…there is an obligation on the vendor to show a good title. This obligation arises by necessary implication from the contract itself. This accords with common-sense. Were the law otherwise, the purchaser might be left in the position of having to make a snap decision on the day fixed for completion, on scanty information, as to whether to complete or not. It follows that this obligation falling on the vendor to properly answer requisitions and inquiries, if reasonably raised by the purchaser, must be discharged within a reasonable time, to enable the purchaser to satisfy himself on the matter, get his money ready and complete on the day fixed.” [Emphasis original.]

58.In Chi Kit Co Ltd & Anor v Lacky Health International Enterprise Ltd (2000) 3 HKCFAR 268, Bokhary PJ and Sir Anthony Mason NPJ stated (at §282I-283A):

“The burden is on the vendor to prove a good title to the very high standard of proof beyond d reasonable doubt that the purchaser will not be at risk of a successful assertion against him of an incumbrance (MEPC Ltd v Christian-Edwards [1981] AC 205 at p.220). The vendor discharges his obligation if he shows to that standard that he is in a position to convey the estate or interest contracted to be sold “without any blot, or possibility of litigation to the purchaser (Re Stirrup’s Contract [1961] 1 WLR 449 at p.454)”

Missing title deeds

59.First, regarding the missing title deeds:

(1) By a letter dated 6 November 2002, SHC informed KKC that the defendant had lost the title deeds and documents of the Property, and that the defendant had made a Statutory Declaration on 4 November 2002 (the signed SD) in respect thereof, which they attached to their letter;

(2) In the signed SD, the defendant stated that she migrated to the US in 1969 and brought along with her all her belongings, including the title deeds and documents relating to the Property. She further stated she had conducted repeated diligent searches among all her papers and effects at her residence for the said title deeds and documents but had been unable to locate them, and that the said title deeds and documents had been lost and mislaid during the transportation or thereafter and could not be found;

(3) By a letter dated 14 November 2002, KKC raised requisitions to the effect that:- (a) the alleged missing title deeds referred to those brought to the U.S. in 1969, but the 1973 COS was made in 1973 and should not have been included in the said missing deeds; and (b) there was no mention of the location where the alleged missing title deeds were being kept in the US. Therefore, the residence might not be the correct place for searching them;

(4) By a letter dated 25 November 2002, SHC stated that after the defendant’s mother assigned half share of the Property to the defendant under the 1969 COS, the defendant’s mother had passed all the title deeds and documents of the Property to the defendant and after the defendant’s mother assigned the remaining half share of the Property to the defendant under the 1973 COS, the defendant also brought the same to the US. SHC further stated that the missing title deeds were brought along with the defendant together with her belongings to her residence in the US “as described” in the signed SD;

(5) By a letter dated 27 November 2002, KKC requested SHC to produce proper conveyancing evidence to support the defendant’s statements; and

(6) By a letter dated 29 November 2002, SHC enclosed therewith, inter alia, a draft SD which will be made by the defendant upon completion. In the draft SD[14], the defendant stated that all the title deeds and documents of the Property were brought along with her together with her belongings to her residence in the US “as described aforesaid”.

60.In my view, it cannot be said that the defendant has answered this requisition satisfactorily or proved good title to the Property:

(1) The defendant’s allegation in the draft SD that she had brought the title deeds and documents to the US appears to be inconsistent with what is stated in the signed SD, namely, that the title deeds and documents were lost and mislaid “during the transportation of the same to the US.” Although the signed SD also stated, “or thereafter,” the defendant has failed to explain the circumstances in which the deeds were lost. In failing to explain these circumstances, it cannot be said that the defendant has answered this requisition satisfactorily. As Yuen J (as she then was) observed in Yin Ping Fong & Anor v Lam Lai Hing [1999] 1 HKLRD 793 at 799G-H, “the purpose of the statutory declaration accompanying a missing title deed is to explain the circumstances in which the deed was lost and to show how the person who ought to have custody of it could not find it despite proper endeavours.”

(2) In the draft SD, the defendant gave her address as the Jordans’ Address, and she alleged in the draft SD that she brought the title deeds and documents of the Property to her residence in the US “as described aforesaid”. Reading this together with the signed SD, in which the defendant alleged that she had conducted repeated diligent searches among all her papers and effects at her residence for the said title deeds and documents, it is clear the residence where the defendant allegedly conducted the search for the missing title deeds and documents was the Jordans’ Address. However, in the defendant’s Affirmation, she alleged that she moved to the Lynchburg Address in around mid-2000[15]. If the defendant had moved to the Lynchburg Address in around mid-2000, then the Jordans’ Address was no longer her residence, making it puzzling that the defendant would have conducted the search in her residence in the Jordans’ Address. In her Affirmation, the defendant has not explained this inconsistency in her evidence;

(3) In any event, by producing a copy of the defendant’s draft SD only on 29 November 2002, the defendant has not satisfactorily answered the plaintiff's requisition within a reasonable time before completion.

Production of Certified Copies of the Government Notices

61.The second requisition related to the defendant’s refusal to produce certified copies of the terms and conditions referred to in New Grant No. 3778 (the “New Grant”), which is the root of title. Additional Special Conditions 3 and 5 of the New Grant provide respectively that:

“3. No building or site development shall be commenced on the lot until the District Commissioner shall have approved in writing the plans submitted in accordance with the Special Condition No 2(b) in Government Notification No 364 of 1934.

5. The lot is subject to Special Condition Nos 2(a) and (b), 3 and 4 in Government Notification No 364 of 1934 as amended by Government Notification No 50 of 1940”

(1) By a letter dated 14 November 2002, KKC asked SHC to produce certified copy of the Government Notice No 364 of 1934 and Government Notice No 50 of 1940 (collectively, the “Government Notices”) being the terms and the conditions under the New Grant;

(2) By a letter dated 25 November 2002, SHC stated that they were of the view that the defendant had no obligation to produce the Government Notices as they are public notices, but they enclosed copy of the same;

(3) By a letter dated 27 November 2002, KKC stated that they did not share SHC’s view, as the terms under the Government Notices formed part of the terms and conditions of the New Grant, which is the root of title, continued to demand for a certified copy thereof, and repeated and maintained the requisition.

62.I am of the view that it cannot be said that the defendant has answered this requisition satisfactorily or has proved good title to the Property:

(1) In Tang Sau Chun & Anor v Lau Yin Ling, HCMP 4097/1996 (unrep, 18 February 1997), Yeung J (as he then was) held that (at 20) the purchasers were entitled to require the vendor to supply the Gazette Notices which were part of the Crown lease. The purchasers need not try to obtain the same from the library or any other place, and it was not relevant whether the parties were deemed to have knowledge of the matter published in the Gazette. Whilst Yeung J did not refer to a certified copy, s13(2) of the Conveyancing & Property Ordinance (Cap 219) provides that where s.13 requires the production of any documents, it should be sufficient to provide a copy certified by a public officer or solicitors;

(2) Thus, in refusing to provide a certified copy, it cannot be said that the defendant has answered this requisition satisfactorily or proved good title to the Property.

Omission of the Description of the First Floor

63.The 3^rd requisition relates to the omission of the description of the “First Floor” in COS Memorial no. 83548:

(1) In COS Memorial No 83548, the description of the Property reads “One half share of one equal undivided sixth part of share of and in Lot No 2054 in Demarcation District No 449 and of and in the messuages erections and building thereupon Together with the exclusive right to the use occupation and enjoyment of all that the FIRST FLOOR Subject to and with the benefit of the terms and conditions contained in the Conditions of Grant registered in the District Office Tsuen Wan as New Grant No 3378.”

(2) By a letter dated 14 November 2002, KKC raised a requisition on COS Memorial No 83548, stating that the whereabouts of the “First Floor” was not specified therein;

(3) By a letter dated 25 November 2002, SHC stated that “on the face and the whole of such description of land” in COS Memorial No 83548, there is no doubt that the “First Floor” referred to the first floor of the building erected on the Lot;

(4) By a letter dated 27 November 2002, KKC stated that SHC had only produced the memorial of the 1969 COS, not the deed itself, and that SHC could not prove the contents of such deed, and repeated and reiterated the requisition;

(5) By a letter dated 29 November 2002, SHC stated that the memorial is and was treated as the COS itself and its contents are conclusively correct unless the contrary is provided.

64.I am of the view that cannot be said that the defendant has answered this requisition satisfactory or proved good title to the Property:

(1) It is to be noted that the description of “First Floor” in Memorial No 83548 is different from the description of the same in COS Memorial No 102524 -- in the latter, the reference is specifically to “First Floor of the building.” In failing to include the words “of the building” in COS Memorial 83548, it is not clear what the exact reference of “First Floor” therein was;

(2) SHC’s statement in their letter dated 29 November 2002 that the memorial is and was treated as the COS itself does not assist, because KCC’s requisition was direct at COS Memorial No 83548, not the deed itself.

Name of Identification of the defendant

65.The fourth requisition related to the name of identification of the purchaser under the 1969 COS and the 1973 COS:

(1) In COS Memorial No 83548, the purchaser was identified as “Chung Wai-Chun, Susanna, holder of Hong Kong Identity Card No A749639, of the same address…”;

(2) In COS Memorial No 102524, under “signature of the parties signing Memorial”, HKID Card No A749639 appeared below the signature of “Susanna Chung”;

(3) By a letter dated 14 November 2002, KKC stated that in COS Memorial Nos 83548 and 102524, Chung Wai-Chun Susanna was the holder of HKID Card No A79639, but that in the signed SD and the Agreement, the one named as Chung Wai-Chun Susanna was the holder of HKID Card No A749636(5), and asked SCH to produce evidence to prove that they were the same person;

(4) By a letter dated 25 November 2002, SHC stated that the last digit of the defendant’s HKID Card No was wrongly described in COS Memorial Nos 83548 and 103524, and that the defendant was willing to make a SD to prove that the person named as Chung Wai Chun Susanna under the said documents referred to the same person as the vendor therein;

(5) By a letter dated 27 November 2002, KKC contended that as the COS Memorial No 83548 and COS Memorial No 103524 were made by two different Assistant Land Officers, and all such officers had marked the HKID Card No of Chung Wai Chun Susanna as A749639, and since the defendant claimed that both the Land Officers were wrong, the proper person to confirm such alleged mistake is the Land Registrar. KKC asked SHC to provide proper evidence either (a) to remove the alleged mistake or (b) to show that the person named in the COS Memorials and the defendant are, in fact, the same person;

(6) By a letter dated 29 November 2002, SHC enclosed copies of the defendant’s old and new identify cards, which appeared to show that the defendant’s HKID Card No was A749636(5), and stated that the defendant was willing to make a SD that the signatures of the defendant in the COS Memorials are the signatures of the defendant and refer to the same person as the vendor therein upon completion;

(7) By a letter dated 30 November 2002, KKC stated that SHC had not produced any evidence from the relevant Land Registry to clarify the alleged mistakes made in the COS Memorials, and that the facts deposed in the defendant’s draft SD were not sufficient to remove the discrepancy in the defendant’s HKID Card No was in fact a mistake made by the Land Registry;

(8) By a letter dated 2 December 2002, SHC stated the SD to be made by the defendant to clarify the discrepancy of the defendant’s HKID Card No and to confirm that the signatures in the COS Memorials No 83548 and 102524 were the defendant’s signatures, was sufficient. SHC further stated that a copy of the defendant’s old and present HKID cards had been produced for such proof and identification, and that therefore was no doubt to the capacity of the defendant.

66.I am of the view that it cannot be said that the defendant has answered this requisition satisfactory or proved good title to the Property:

(1) I agree with the statement contained in the letter from KKC dated 30 November 2002, referred to above;

(2) In any event, by producing a copy of the defendant’s draft SD only on 29 November 2002, the defendant has not satisfactorily answered the plaintiffs’ requisition within a reasonable time before completion.

67.In conclusion, I agree with the learned Judge and the learned Master that the defendant has failed to answer the plaintiffs’ requisitions satisfactorily.

Factor 5 – Delay is applying to set aside

68.I refer to §40(1) above where I found that there has been inordinate and inexcusable delay on the part of the defendant in applying to set aside the Judgment. I also refer to paragraph 40(2) above in which I have explained why I am not satisfied that the defendant has provided any good explanation for the delay.

Factor 6 – past conduct of the defendant in failing to comply with orders of the court

69.I do not think this factor is relevant because there are no orders which the defendant has failed to comply with.

Factor 7: whether the plaintiff would be prejudiced by the judgment being set aside

70.I have already addressed the prejudice caused to the plaintiffs if the Judgment is set aside in §40(3) above.

Factor 8: public interest in being an end to litigation and not having the time of the court occupied by 2 trials

71.I repeat §§45-52 above on this issue. Giving the defendant the opportunity for retrial will waste further court resources.

G. Does O13, r9 RDC apply to this application? If it does, should the court set aside the Judgment?

72.In the present case, since the Judgment Summons was issued pursuant to O19, r7 RDC, based on the defendant’s failure to file a notice of intention to defend, and since the Judgment was entered pursuant to the Judgment Summons, I am of the view that O13 r9 applies to this application.

73.The principles applicable to applications to set aside a regular default judgment are well established. The primary consideration is whether the defendant has merits to which the court should pay heed because if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication: Evans v Bartlam [1937] AC 473 at 489 per Lord Wright.

74.However, the court has a wide discretion. In particular, the court must consider the delay, the explanation for the delay, and whether setting aside the judgment would prejudice the plaintiff. If there is a significant delay, a lack of explanation for that delay, and prejudice to the plaintiff, the following authorities show that the court may refuse to set aside a regular default judgment even if the defendant can show a defence with a real prospect of success.

75.First, in Young Bing Ching (deceased) v Chow Young Fong & Anor [2001] 2 HKLRD 394, Mr Recorder Ma SC (as the former Chief Justice then was) refused to set aside a default judgment, even though the defendant demonstrated a defence with a real prospect of success. The court was not satisfied with the defendant’s explanation for allowing judgment to go by default or for the delay in seeking to set aside, and the plaintiff would suffer prejudice if the default judgment were set aside. Notably, the delay in that case ‒ 4½ years ‒ was significantly shorter than the delay in the present case. It is correct that in that case (1) third party rights might have been affected and (2) prejudice was caused in the form of the plaintiff’s demise. However, prejudice can take many forms, and each case must be assessed based on its own facts.

76.Second, in Dipson Engineering Services Ltd v Gregory Bowen & Anor [2004] UKPC 181, the first instance judge in Grenada refused to set aside a regular default judgment; however, his decision was reversed by the Court of Appeal in Grenada. Upon further appeal, the Privy Council allowed the appeal and restored the first instance judge’s decision:

(1) The Privy Council stated (at §28 per Lord Brown):

“Of course, the merits of the proposed defence are of importance, often perhaps of decisive importance upon any application to set aside a default judgment. But it should not be thought that it is only the merits of the proposed defence which are important. The defendants’ explanation as to how a regular judgment came to be entered against them… will also be material.”

(2) After indicating that a reasonable explanation is not always necessary and that there is no rule that the court must be satisfied that one exists, the Privy Council referred to Evan v Bartlam [1937] AC 473, where Lord Atkin indicated that an explanation for allowing a judgment to be entered is one of the matters the court will have regard to. The Privy Council, at §30, stated:

“Importance too will be any delay in applying to set aside the default judgment and any explanation for this also.”

(3) The English Civil Procedure Rules (“CPR”) (Part 13 under 13.3(2)) provides:

“In consider whether to set aside…a judgment… the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”

After noting that the CPR is not applicable to Grenada, the Privy Council emphasized that considerations of delay were “clearly of real importance,” and that the merits of the defence were not the “determinative question” arising by the time the application to set aside the default judgment was heard before the judge. The delay in that case ‒ 4½ years ‒ was significantly less than the delay in the present case. These observations of the Privy Council in Dipson also apply to this case.

77.I have already explained the inordinate and inexcusable delay, the lack of explanation for that delay, and the potential prejudice to the plaintiffs if the Judgment is set aside in §40 above. Additionally, I have addressed the merits of the defendant's defence in §§55-67 above. In conclusion, adopting the approach in Young Bing Ching and Dipcon, I will exercise my discretion not to set aside the Judgment even if the defendant can demonstrate a real prospect of success.

H. Should the fresh evidence be admitted on appeal?

78.It is undisputed that the principles established in Ladd v Marshall [1954] WLR 1487 (at 1491 per Denning LJ) apply to an appeal from a master to a judge in chambers. Consequently, the defendant's application to adduce Osborne’s Affirmation on appeal must satisfy the following conditions. First, the defendant must show that the evidence could not have been obtained with reasonable diligence for use at the hearing before the learned Master. Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

79.According to Ms Osborne’s 2nd Affirmation, filed on 31 December 2024, she is the defendant’s daughter and was responsible for handling leasing matters related to the house at the Jordans’ Address, which was owned by a family company known as Jones Investments and Management LC. Ms Osborne produced a copy of a lease for the Jordans’ Address dated 11 March 2003 (the “Lease”), in which the tenants were Kenneth D Frollini and Ms Frollini, with a lease period from 27 May 2003 to 30 April 2006. Ms Osborne also recounted a telephone conversation with Ms Frollini on or about October 2024, alleging that Ms Frollini told her that “the said court documents were first received by the domestic helper who worked for her at the time, and the helper was an Asian.” However, Ms Osborne did not produce any affirmation from Ms Frollini to confirm her account.

80.In my view, the defendant fails to satisfy all three conditions.

81.First, the defendant has not demonstrated that the evidence could not have been obtained with reasonable diligence for use at the hearing before the learned Master. In her 2^nd Affirmation, affirmed on 27 December 2024, the defendant claims that she “did not even think about trying to contact Ms Forllini” and that “it would be difficult to retrieve documents and information pertaining to the tenant at that time”. These assertions do not support her argument. The defendant was legally represented since at least 8 February 2024 and must have been advised to present all relevant evidence in support of her application at once. If she “did not even think about trying to contact Ms Frollini,” she has no one to blame but herself. Furthermore, her allegation that “it would be difficult to retrieve documents and information pertaining to the tenant at that time” is contradicted by the production of the Lease by Ms Osborne in her Affirmation.

82.Secondly, the defendant fails to demonstrate that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive:

(1) The Lease does not constitute compelling evidence that would warrant a different conclusion from what is stated in the certificates/attestations, namely that the concurrent writ of summons was personally served on the defendant on 3 June 2003 at the Jordans’ Address and that as of 29 May 2004 the defendant had an active phone listing of 703-266-2884 at the Jordans’ Address;

(2) While Ms Osborne’s address as stated in the Lease was the Lynchburg’s Address, she did not clarify in her Affirmation whether the defendant was residing there at the time of the Lease or where the defendant was residing on that date.

83.Thirdly, the defendant also fails to demonstrate that the evidence is such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible:

(1) As noted above, the defendant has not produced any affirmation from Ms Frollini to confirm Ms Osborne’s account;

(2) Osborne’s Affirmation alleged for the first time that Ms Frollini told her, “The said Court documents were first received by the domestic helper who worked for her at the time, and that the helper was an Asian.” These allegations were not mentioned in the letter from Ms Frollini dated 10 June 2003, and they appear for the first time in Osborne’s Affirmation. The timing of those claims suggests that they were made to tailor with the description of “Asian female, 30’s, black hair, black eyes, glasses” in the certificate/attestation and are not apparently credible.

I. Conclusion

84.For the above reasons, I dismiss the defendant’s appeal against the learned Master’s decision and the defendant’s application to adduce fresh evidence on appeal. I make a costs order nisi that the defendant shall pay the plaintiff’s costs of the appeal and of the application to adduce fresh evidence on appeal, to be taxed if not agreed, with certificate of one counsel.

85.I would like to make an observation. Before the plaintiffs applied for leave to serve the concurrent writ of summons on the defendant out of jurisdiction, KKC, by a letter dated 17 December 2002, requested SHC to confirm whether they had instructions to accept service of the writ of summons regarding the Property on behalf of the defendant. After receiving no reply from SHC, KKC sent another letter dated 17 January 2003 to SHC, again inquiring whether SHC had instructions to accept service of the writ of summons concerning the Property on behalf of the defendant. Unfortunately, in a letter dated 18 January 2003, SHC informed KKC that they had no instructions to accept service of the writ of summons regarding the Property on behalf of the defendant. The defendant was aware that she would be returning to the U.S. on or about 4 November 2002, yet she has not explained why she deemed it appropriate to instruct SHC not to accept service of the writ. Had she given instructions to SHC to accept service of the writ regarding the Property on her behalf back in 2002, this action would have proceeded in its ordinary course, likely eliminating the need for the parties to appear before the court 22 years later to argue the validity of the service of the concurrent writ of summons and the merits of the defence. This situation is most regrettable.

86.Finally, I thank counsel for their assistance.

Mr So Ho Yee Max and Mr Andy Chan, instructed by Kevin L H Kwong & Co, for the 1^st and 2^nd plaintiff

Mr Simon KC Lam, instructed by T C Foo & Co, for the defendant