Read the full judgment text of HCA 015104/1998 on BabelCite. This High Court CFI judgment was delivered on 6 July 1999 before The Hon Madam Justice Yuen.
Civil procedure – service of writ – "last known address" under O.10 r.2(a) Rules of the High Court – The 1st Defendant was a qualified accountant who, together with the 2nd Defendant, guaranteed repayment of a $10m bridging loan made by the Plaintiff to two companies, with the guarantee providing for demand by post to the guarantors' "last-known address" – The Plaintiff sent the demand letter and subsequently the writ to a Hong Ning Road address found in the Hong Kong Society of Accountants directory as the 1st Defendant's address, even though the property had been sold in June 1997 – Default judgment was entered and a master granted conditional leave to set aside on payment into court of the full $9.64m claim – The 1st Defendant appealed seeking unconditional leave – Whether the writ was served at the 1st Defendant's "last known address" within O.10 r.2(a) RHC – Held: Yes – "Last known address" means the address last known to the plaintiff, not an address the defendant intentionally made known to the plaintiff – A plaintiff may acquire knowledge of the defendant's address by any reasonable means available, including inspection of professional directories, and the Hong Ning Road address was a reasonable basis for the plaintiff's opinion under O.10 r.1(3)(b)(i) RHC that the writ would come to the defendant's knowledge – Reference to National Westminster Bank v Betchworth – Whether the "Limited Right" principle applies to setting aside irregularly obtained judgments under O.13 r.9 – Held: Po Kwong Marble Factory Ltd v Wah Yee Decoration Co Ltd remains good law and is binding – Under the Limited Right view, a defendant whose judgment was irregularly obtained need not show merits, but the court considers all other circumstances – Reference to Desirable International Fashions Ltd v Chiang, Fok Chun Hung v Lo Yuk Shi, Honour Finance v Chu Mei Mei, Chu Kam Lun v Yap Lisa Susanto, Faircharm Investments Ltd v Citibank International, BCCI (Overseas) Ltd v Habib Bank Ltd – Whether the 1st Defendant has a defence on the merits under the Saudi Eagle threshold – Held: No – The 1st Defendant's only defence was that the demand was not sent to his "last known address", but having found the Hong Ning Road address was the address last known to the Plaintiff, the same reasoning defeats the defence – The guarantee's deeming provision further supports this conclusion – Whether the master's condition of payment in of the full claim amount should be set aside – Held: No – The 1st Defendant's bald assertion of insufficient assets was unsupported by any evidence filed in the nearly two months between the master's order and the appeal, and counsel did not seek time to file such evidence – Appeal dismissed with order nisi for costs to the Plaintiff.
Legal issues: Meaning of "last known address" for service of writ under O.10 r.2(a) RHC · Three views on setting aside irregularly obtained default judgment under O.13 r.9 RHC · Whether the 1st Defendant has a defence on the merits under the Saudi Eagle threshold · Whether the master's condition of payment in of the full claim amount should be set aside
Outcome: Appeal dismissed
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