Read the full judgment text of HCA 002721/1993 on BabelCite. This High Court CFI judgment was delivered on 22 November 1993 before The Hon. Mr. Justice Kaplan.
Civil practice – application to set aside regular judgment – non-compliance with Practice Directions on interlocutory applications and affidavits – extension of time for appealing – affidavit on merits – Defence not verified on oath or affirmation – need for affidavit condescending to particulars – whether applicants should be granted an adjournment. The plaintiffs, a husband and wife, purchased a property in Hong Kong. The 1st defendants were their solicitors; the 2nd defendant was a clerk employed by the 1st defendant and director of the 3rd defendant (the vendor); the 4th defendant represented the vendor and the 5th defendant was an estate agent who was also a director of the vendor. A dispute arose about an alleged unauthorised structure on the premises. The writ was issued on 31 March 1993. The 2nd to 5th defendants failed to file Acknowledgments of Service and default judgments for damages to be assessed were entered against all defendants on 21 and 27 April 1993. The 2nd to 5th defendants then applied to set aside the default judgments, but Master Jones dismissed the first summons for lack of supporting affidavit and Master Bokhary dismissed a second summons as traversing the same ground. The 2nd to 5th defendants then issued a Notice of Appeal against both decisions, but failed to serve it on the plaintiffs until 3 November 1993, in breach of Order 58 rule 1(3). Whether the 2nd to 5th defendants should be granted an extension of time to appeal against Master Jones' decision – held: no; the delay of some 2 months and 20 days was substantial, and in any event the defendants could not succeed on appeal because they had no affidavit on the merits. Whether the affirmations filed by the 2nd to 5th defendants were sufficient to discharge the onus of showing a defence with a real prospect of success for setting aside the default judgment – held: no; the affirmations merely exhibited a draft Defence that was not verified on oath, and even a verified draft Defence expressed in the usual obscure wording of a pleading may not suffice; what is preferable is an affidavit in narrative form explaining precisely what the proposed Defence will be, following The Saudi Eagle [1986] 2 Lloyds Ref 221. The court's approach to non-compliance with Practice Directions on interlocutory applications and affidavits – held: save in exceptional circumstances, the court will refuse to hear the case and adjourn to a later date, and will expect an undertaking from defaulting solicitors that they will not seek to charge their clients for costs thrown away; if no undertaking is given, the court may invite the solicitors to show cause why they should not pay costs personally, following and endorsing the approach of Keith J. in Sanyo Electric Trading Co. Ltd. v. Leung Kwok-king (1993) 1 HKLR 253. Appeal dismissed with costs.
Legal issues: Application to extend time for appealing · Sufficiency of affidavit or affirmation on the merits for setting aside a regular judgment · Court's approach to non-compliance with Practice Directions on interlocutory applications and affidavits
Outcome: Appeal dismissed; application for extension of time to appeal refused; application for adjournment to file further evidence refused.
Cited by 2 cases