China State Construction Engineering (Hong Kong) Ltd v. Ho Siu Po

HCCT000057/2003

HCCT 57/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 57 OF 2003

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Coram: Hon Reyes J in Chambers

Date of Hearing: 4 March 2004

Date of Judgment: 4 March 2004

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J U D G M E N T

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1.I am against the Defendant's application. I refuse leave to set aside judgment in default of liability. Under the Saudi Eagle test [1986] 2 Lloyds Rep 221, a defendant seeking to set aside a default judgment must show at least 2 things:

(1) he has a reasonable prospect of success; and

(2) there is some explanation for his delay in applying to set aside. Here there has been a delay of nearly 7 months before the application to set aside the default judgment.

2.On the 1st requirement, I am not satisfied on the evidence (there is in fact no particularised evidence at all), that the Defendant has a reasonable prospect of success. To satisfy the court of a reasonable prospect to success, the Defendant must condescend to particulars. He cannot merely assert that he has a claim. He must provide sufficient details on affidavit of the facts and matters upon which he relies to enable the court to assess his prospect of success. That has not been done here.

3.On the 2nd requirement, there is simply no explanation in the affidavit evidence as to why there has been a 7-month delay. The court is thus unable to assess the merits of the Defendant's application to set aside.

4.For these reasons, I am unable to exercise my discretion in favour of the Defendant to set aside the default judgment on liability.

Representation:

Mr Shepherd, of Messrs Herbert Smith, for the Plaintiff

Mr Ivan Cheung, instructed by Messrs Leung, Chan & Pang, for the Defendant