Quaisir Khan v. Shamsi Moosa

Case No.DCCJ 10327/1983

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ010327/1983

V.C.J.10327/83

HEAD NOTE

An order whereby judgment was entered in default was struck out under Rule 31(1) of the District Court Civil Procedure (General) Rules on the ground that no application was made "within 3 months from the expiration of the period within which defence or counterclaim should have been filed" was set aside on the ground of irregularity as the default judgment was entered in the erroneous albeit innocent belief that the service of the writ was duly effected whereas in fact it was not - the defendant was out of jurisdiction. Order 2 Rules 1 and 2 of the Rules of the Supreme Court applied.

Solicitors would have been more wise to have notified the Court of the non-service before the expiration of the three months period when learnt of that the defendant was in England three weeks therefrom.

In Pontin v. Wood (1962) 1 Q.B. 594, a delay of some 4 months was held to be unreasonable and an application for setting aside an order for service out of jurisdiction on the general ground of irregularity was refused.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 10327 OF 1983

______________________

BETWEEN

QUAISIR KHAN

Plaintiff

and

SHAMSI MOOSA

Defendant

________________

Coram: H.H. Judge E. LI in Court.

Date of judgment: 12th April 1984.

_________

RULING

_________

1. This is a rather interesting and intriguing one referred to me to-day. The ex parts application is to set aside an order made by the Deputy Registrar, Victoria District Court, whereby the action for money lent was struck out under Rule 31(l) of the District Court Civil Procedure (General) Rules on the ground that no application for entry of judgment in default was made "within 3 months from the expiration of the period within which a defence or counterclaim should have been filed. "

2. This application is in effect based on the ground that the striking-out was irregular albeit innocently made in that the order was made on the assumption that service of the writ was duly effected on the defendant whereas in fact it was not. Therefore the question turns on whether an order to strike out under Rule 31(1) should not be made if service of a writ was unsuccessful and could not have been locally served as the defendant was out of jurisdiction and if so, should a District Judge set aside such an order.

3. Rule 22(7) of the same Rules provides:-

"(7) Judgement shall not be entered against a defendant under this rule unless the Registrar is satisfied that the writ has been served on the defendant. "

I am quite positive that had the Deputy Registrar known that on the date of the striking-out order the writ was not served, he would not have struck out this action. It was unfortunate that solicitors did not notify him of the non-service. However such failure did not affect the "irregular" nature of the striking-out which was made on the erroneous though perfectly innocent assumption of good and effective service.

4. By virtue of Rule 9 of the same Rules, the Rules of the Supreme Court other than that listed in the Schedule to the District Court Civil Procedure (General) Rules are applicable to the District Court (save, of course, those for which expression provisions have been made in the District Court Rules to tailor its peculiar needs). Order 2 Rule 1 of the Rules of the Supreme Court which was wholly taken from its counterpart in England lays down:-

"O. 2 1.(1)

Where, in beginning or purporting to begin any proceedings at any stage in the course of or in connexion with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2)

Subject to paragraph (3), the Court may, on the ground that there has been such failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. "

Lack of service which service is an essential prerequisite for entering judgment in default, clearly falls within Order 2(1).

5. Order 2 Rule 2 further provides that the application to set aside must be made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. It would appear that almost three weeks had elapsed from the time when plaintiffs' solicitors came to know that the defendant had left for England to the date of the judgment order in default. While solicitors might have to take a little time to verify this information hence three weeks would not be unreasonable delay, they would certainly have been more wise to have taken the prudent course of notifying the Deputy Registrar of the non-service pending such verification. Time and costs would have been saved. They should have been more mindful of the three months period under Rule 31(1). Had the delay been much longer, the Court could well have thought it unreasonable and refused this application, leaving the plaintiff to institute a fresh action. In Pontin v. Wood (1962) 1 Q.B. 594, it was held to be too late to set aside service of a writ claiming "damages for personal injuries" after a delay of four months.

6. For the above reason, the order striking out this action by the Deputy Registrar dated 21st March 1984 is set aside and leave is given to the plaintiff to effect service of the writ on the defendant out of jurisdiction and the defendant is given 28 days to file a defence after the service of the writ. There will be no order as to costs for these applications.

(Eric Li)

District Judge

Representation:

Messrs. Deacons for the Plaintiff ex pane.