Read the full judgment text of HCCT 39/2001 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 15 February 2005 before Hon Reyes J in Chambers.
Procedure — Service outside jurisdiction — Costs summons against non-party insurer — Whether leave to serve summons outside jurisdiction properly granted — Whether cause of action required against foreign person for leave — Whether AXA a necessary or proper party — Application of Order 11, Rules 1, 4, 9 and Order 15, Rule 6 — Role of HCO s.52A(1) and (2) concerning costs against non-parties — Effect of insurer funding defence yet denying liability — Validity of service under lex fori despite foreign procedural law — Whether delay in serving summons warrants setting aside leave. The plaintiff Authority sued B+B for defects in piling works, funded by insurer AXA who denied liability. Authority sought leave to serve AXA in Germany for costs in event of success. Court held that under Order 11, Rule 9, leave for service of costs summons is proper despite no formal cause of action against AXA; AXA in substance a party given funding and conduct of defence. Service valid under Hong Kong law despite German law objections. Delay in service did not justify setting aside leave. Joinder of AXA as a party appropriate to bind to proceedings and resolve cost claims ancillary to main action. Application to set aside leave dismissed. AXA ordered to pay costs of hearing. Appeal by AXA dismissed (CACV85/2005).
Legal issues: Leave to serve summons outside jurisdiction on a non-party under HCO s.52A · Validity of service under German law · Discretion to set aside leave due to delay in service · Whether AXA is a necessary or proper party under Order 11, Rule 1(1)(c)
Outcome: AXA's application to set aside leave to serve outside jurisdiction dismissed; leave to serve on AXA in Germany upheld.
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