Read the full judgment text of HCA 003503/1996 on BabelCite. This High Court CFI judgment was delivered on 7 April 1997 before The Hon. Mr. Justice Keith.
Civil procedure – service of writ of summons on a limited company – whether service governed by Companies Ordinance (Cap. 32) s.356 or by Ord. 10 r. 1 as modified by Ord. 65 r. 3(2) – conflict with dicta in Treasure Land Property Consultants v. United Smart Development Ltd. [1995] 3 HKC 30 – oral contract in loan agreement – oral guarantee alleged against director and majority shareholder – loan exceeding $34m – default judgment entered for want of notice of intention to defend – application to set aside – setting aside on terms under Ord. 13 r. 9 – whether court may refuse to set aside irregularly obtained judgment – whether address in Tsim Sha Tsui was company's registered office or principal office – meaning of 'last known address' in Ord. 10 r. 1(2)(b) – whether reference is to address last known to the plaintiff – whether defendant can have more than one last known address (residence and place of work) – test for 'real prospect of success' under Premier Fashion Wears Ltd. v. Li Hing Chung – whether provisional view can be formed without witness assessment – test whether defendant's witnesses could well be believed at trial following Allen v. Taylor [1992] 1 PIQR 255 – court held s.356 of the Companies Ordinance does not apply to service of a writ on a company and Ord. 10 r. 1 applies with modifications under Ord. 65 r. 3(2) – 'last known address' means last address known to the plaintiff and a defendant may have multiple such addresses – where outcome depends on witness credit, the appropriate test is whether the defendant could well be believed at trial – appeal against setting aside of default judgment dismissed – writ held not properly served on the 1st Defendant but properly served on the 2nd Defendant at one of his last known addresses – the 2nd Defendant's denial of the oral guarantee held to have a real prospect of success – Plaintiff ordered to pay the Defendants' costs of the appeal.
Legal issues: Whether s.356 Companies Ordinance applies to service of writ on a limited company · Meaning of 'last known address' in Ord. 10 r. 1(2)(b) · Test for 'real prospect of success' where outcome depends on witness assessment
Outcome: Appeal dismissed; the order of Master Jennings setting aside the default judgment against both Defendants was upheld.