Mailex Ltd v. Grefo Ltd

HCA009062/1981

BETWEEN

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Coram: The Hon. Mr. Justice Hunter

Date: 14 July 1982

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JUDGMENT

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1. This is an appeal against the decision of Master Betts given on the 16th of June of 1982, when he refused to set aside a default judgment, which was finally entered on the 26th of March of 1982, because of a failure on the part of the defendant to give any notice of intention to defend. The matter proceeded before the Master upon the basis that this was a regular judgment, and that accordingly on the basis of the usual principles, the defendant seeking to have that judgment set aside had to explain the delay and show some arguable case on the merits. Indeed it was upon that basis that the matter was opened at the start of this Appeal. In the course of hearing, my clerk having gone through the file and having noticed the affirmation of service, noted that it made no reference to the fact that the writ had been exhibited at the premises as required by order 10 rule 4(2). Order 10 rule 4(2) reads; "Where a writ is endorsed with a claim for possession of premises in addition to and not in substitution for any other mode of service, a copy of the writ shall be posted in a conspicuous place on or at the entrance to the premises." This, in this case was particularly unfortunate, because the writ was served and served only at the registered office of the defendant company. It is in evidence before me already that that registered office had ceased to be the effective registered office of the defendant company for some twelve months before this event. It is said that that is why the writ never came to the attention of the defendant company. Indeed, it seems to be clear that the defendant company first became aware of the writ in this case, as a result of a letter written by the plaintiff's solicitors to the defendant's solicitors on, I think, the 16th of February telling them that this had taken place, and that this writ had in fact been issued. This was followed by a letter a day or so later informing them that an application had already been made a month before to seek a default judgment because of tire failure by the defendant company to give any notice of intention to defend.

2. I am not, as I see it today, now concerned with the merits or demerits of those procedures although I confess I am not very happy about them. Because this writ was not properly served, any default judgment based upon a failure by the defendant to give notice or serve notice of intention to defend, is not a regular judgment, but it is an irregular judgment. It has been submitted to me and that this is a defect which is trivial and which I should overlook. In the facts that I just recited I certainly cannot regard this is trivial. I do not believe I have any jurisdiction whatever to overlook it. The Court has long since drawn a sharp distinction between a regular judgment and an irregular judgment. The principles for setting aside a regular judgment I already referred to. If a judgment is irregular, then the party is entitled to have it set aside as of right. I believe that that is what this defendant is entitled to do here.

3. I think I might well have come to exactly the sane conclusion on the other point as well. But I am not hanging my decision upon that because the argument upon it has never been properly completed. I think that this is simply an irregular judgment: that the service was irregular; the judgment was irregular and it must be set aside.

4. As far as delay is concerned, I need only say this. The judgment having now been set aside I will, unless counsel persuade me to the contrary, start imposing time limits for certain other necessary steps to be taken in this case and do the best I can to avoid delay. But what does seem to me at the moment, quite obvious, is that the two actions (and there may even be a third), proceeding for possession of the self-same premises, cannot proceed independently. They must in due course be consolidated together. Then they must go ahead together. This is the latest of the actions and will have to go ahead with the others. But the second action, I have been told, is not going all that fast because a reply was only delivered on the 5th of March of this year. So that I am not, at the moment, vastly impressed by the stories of delay. But my order is that the judgment must be set aside and I will hear counsel on a farther consequential directions.

Representation:

Mr. Benjamin Yu (Louis Kong & Co.) for Defendant.

Mr. Stephen Ma (Alexander K.H. Poa & Co.) for Plaintiff.