Read the full judgment text of HCA 009775/2000 on BabelCite. This High Court CFI judgment was delivered on 31 May 2001 before Deputy High Court Judge Poon.
Civil procedure – service of writ – Order 10 rule 1(2) – service by insertion through letter box at last known address – whether Hang Fa Chuen address was defendant's 'last known address' – meaning of 'last known address' is address last known to plaintiff – whether updated company search required – whether writ brought to defendant's notice – whether service valid – whether defendant had actual knowledge of writ through solicitors in earlier action HCA 4793/2000 – whether default judgment irregular – held, judgment irregular because defendant had no notice of writ – whether irregular judgment obtained by defective service should be set aside as of right without considering merits of defence – Hong Kong authorities (Honour Finance, Fok Chun Hung, Po Kwong Marble Factory, Desirable International Fashions, Chu Kam Lun) hold that it should – English Court of Appeal in Faircharm Investments takes different approach – Chu Kam Lun did not adopt Faircharm – Po Kwong remains binding on Court of First Instance – defendant entitled to have default judgment set aside without showing defence on merits – fundamental right to be heard – Pollard distinguished because Po Kwong not cited there and irregularity related to amount of judgment – residual discretion to impose conditions under O.13 r.9 – no conditions imposed because defendant had already notified change of address in March 2000 – appeal allowed – default judgment set aside unconditionally – costs: costs up to 7 February 2001 to be costs in the cause; thereafter, costs including master's hearing and appeal to the defendant in any event.
Legal issues: Whether Hang Fa Chuen address was defendant's 'last known address' under O.10 r.1(2) · Whether the defendant had actual knowledge of the writ through his solicitors in the earlier action · Whether the default judgment was irregular due to defective service · Whether an irregular judgment obtained by defective service should be set aside as of right without considering merits · Whether conditions should be imposed when setting aside the irregular judgment
Outcome: Appeal allowed; default judgment set aside unconditionally.
Cited by 3 cases · Cites 3 cases