Read the full judgment text of CACV 000309/2006 on BabelCite. This Court of Appeal judgment was delivered on 13 February 2007 before Cheung JA, Stone J.
Civil procedure – setting aside default judgment – service of writ of summons – Order 10, rule 1 of the Rules of the High Court – service by insertion through letterbox under O.10 r.1(2)(b) – requirement that defendant be within the jurisdiction at the time of service – Barclays Bank of Swaziland Ltd. v. Hahn [1989] 1 WLR 506 – Chu Han Lun and Yap Lisa Susanto [1999] 3 HKC 378 confirming that defendant must be within jurisdiction for O.10 r.1(2)(b) service to be effective – Penrose Industries Limited v. Tam Yan Lung (HCA 5738/2000) disapproved as inconsistent with the principle in Hahn – plaintiff obtained default judgment after defendant's failure to acknowledge service of writ – writ served by insertion into letterbox of defendant's former residence – defendant had left Hong Kong for United States in September 2004 – defendant discovered writ in May 2005 when her son visited the property – material non-disclosure in affirmation of service regarding defendant's solicitors' letter of 23 May 2005 – whether concession by previous counsel that service was valid should be permitted to be withdrawn – concession held to be wrongly made and permitted to be withdrawn – no factual issue on which withdrawal would cause irremediable prejudice to plaintiff – whether erroneous concession on a point of law in the context of a jurisdictional challenge constitutes submission to the jurisdiction – held not a true submission to the jurisdiction – Dicey, Morris & Collins, Conflict of Laws (14th ed., 2006) para 11-134 et seq. – effect of bad service is to render default judgment irregular – Po Kwong Marble Factory Ltd. v. Wah Yee Decoration Co. Ltd [1996] 4 HKC 157 – defendant entitled to set aside irregular judgment ex debito justitiae as of right – residual discretion to impose conditions informed by circumstances of service and reasons for any error therein – Forward v. West Sussex County Council [1995] 1 WLR 1469 distinguished as not concerning a defendant outside the jurisdiction – Saudi Eagle Inc. [1986] 2 Lloyd's Rep. 221 test for setting aside regular default judgments held inapplicable – Honour Finance Co. Ltd v. Chui Mei Mei [1989] 2 HKLR 146 'confident expectation' that irregular judgment will be set aside – whether conditions should be imposed – no reprehensible conduct of defendant on service – plaintiff did not rely on delay – plaintiff's solicitors failed to disclose entry of judgment to defendant – plaintiff's claim concerns substantial payments routed through defendant's personal account giving rise to concern as to the merits – appeal allowed – default judgment and charging order absolute set aside – plaintiff to bear own costs of signing judgment and charging order – plaintiff to pay defendant's costs of setting aside and of appeal save for costs of hearing before judge which go to plaintiff – no order as to costs of amendments
Legal issues: Validity of service by letterbox insertion when defendant outside jurisdiction · Withdrawal of counsel's concession on jurisdiction · Whether erroneous concession constitutes submission to jurisdiction · Whether conditions should be imposed on setting aside irregular judgment
Outcome: Appeal allowed; default judgment and consequential charging order absolute set aside; parties allowed to amend their Notice of Appeal and Respondent's Notice respectively.
Cited by 3 cases