Read the full judgment text of HCA 007612/1996 on BabelCite. This High Court CFI judgment was delivered on 21 July 1997 before Yam J..
Civil procedure – service of Writ of Summons – Order 10, Rule 1(2)(b) and Rule 1(3) – insertion of Writ through letter box of defendant's last known address – defendant within jurisdiction at time of insertion but outside jurisdiction on seventh day thereafter – whether service regular – whether defendant must show good ground of defence to set aside irregular judgment. The Plaintiff was the creditor of the Defendant's company, Kong Tai (Holdings) Company Limited, and the Defendant was guarantor of the company's debt under a Deed of Guarantee dated 30 September 1995 for HK$1,485,600. The Defendant resigned as Chairman on 20 May 1996 and moved out of the premises at Parc Oasis, Kowloon. The Writ was issued on 5 July 1996 and served the same day by insertion through the letter box of the premises, the Defendant's last known address, when he was within the jurisdiction but had left for Shenzhen by 6 July 1996, before the deemed service date of 12 July 1996. Default judgment was entered on 5 August 1996, set aside by Master Jennings on 10 June 1997, and the Plaintiff appealed. Held, allowing the appeal: (1) the judgment was regularly obtained because O.10 r.1(3) provides that the date of service shall, unless the contrary is shown, be deemed to be the seventh day; the contrary was shown by the Defendant's immigration records demonstrating he was within the jurisdiction at the time of insertion of the Writ into the letter box. The phrase 'unless the contrary is shown' concerns both the defendant's actual knowledge of the Writ and whether he was within the jurisdiction at the time of insertion. (2) Even if the contrary situation in O.10 r.1(3) concerned only actual knowledge, a victim of an irregular judgment enjoys a confident expectation that it will be set aside but not a right; a mere lack of notice is insufficient – the defendant must additionally show a good ground of defence (Honour Finance Co Ltd v Choi Mei-mei [1989] 2 HKLR 146 followed; Fok Chun Hung v Lo Yuk Shi [1995] 2 HKC 648 considered but distinguished). (3) The Defendant, as guarantor of the debt, did not disclose any defence, show any triable issue, or indicate any reasonable chance of success. Order 13, Rule 7(3) did not apply because service was by hand through the letter box and not by registered post. The court exercised its discretion under O.13, r.9 and declined to set aside the judgment. Appeal allowed with costs to the Plaintiff here and in the court below.
Legal issues: Whether service of the Writ under O.10 r.1(2)(b) was regular given the defendant was within the jurisdiction at the time of insertion but outside it on the deemed service date · Whether a victim of an irregular judgment must show a good ground of defence to set it aside
Outcome: Appeal allowed. The default judgment entered on 5 August 1996 was restored and the Defendant's application to set aside was dismissed.
Cited by 24 cases