Read the full judgment text of HCCT000014B/1998 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 29 July 1998 before The Hon Mr Justice Findlay.
Procedure — Setting aside default judgment — Order 13, rule 9 — Whether judgment irregular — Requirement of real prospect of success to set aside judgment — Construction contract dispute — Contractual relationship and liability — Whether first defendant was employer — Pleadings — Misjoinder and striking out — Leave to amend statement of claim. The plaintiff claimed payment of over $26 million based on a letter of acceptance dated 12 July 1994 addressed to the plaintiff by the architect acting for the first defendant as employer. The first defendant contended the real employer was Beijing Grand Canal Real Estate Development Company Limited (BGC) and the contract was with BGC and joint venture contractors. Tender documents addressed BGC as employer, payments were made by joint venture contractors, and no formal contract with the first defendant existed. The first defendant did not file a defence in time, and default judgment was entered. The first defendant successfully applied to set aside the default judgment, demonstrating a real prospect of success with evidence carrying conviction. The court found the plaintiff could not succeed on its pleaded case. The first defendant’s application to strike out its name was refused on the ground that the pleadings disclosed a good cause of action; however, the plaintiff was granted leave to amend the statement of claim to reflect evidential realities. Costs were ordered accordingly with a stay on execution pending appeal.
Legal issues: Setting aside default judgment under Order 13, rule 9 · Liability of the 'Employer' under the contract · Whether the first defendant was improperly joined and whether its name should be struck out
Outcome: Default judgment against the first defendant set aside; refusal to strike out the first defendant from the proceedings but leave granted to plaintiff to amend the statement of claim; costs ordered on an unopposed basis.