Read the full judgment text of CACV 000305/2008 on BabelCite. This Court of Appeal judgment was delivered on 9 March 2009 before Yuen JA, Hartmann JA.
Civil procedure – service of writ – dispensing with service – inherent jurisdiction – defendant out of the jurisdiction – personal guarantees of corporate loans – default judgments – annulment of bankruptcy order – whether the court can dispense with service of expired writs where no leave to serve out has been obtained under O.11 r.1 RHC – whether failure to obtain leave under O.6 r.7 and O.11 r.1 is an irregularity curable under O.2 r.1 RHC – whether ordering dispensing with service circumvents the 12-month limit on renewal of writs under O.6 r.8 RHC – submission to jurisdiction – annulment of bankruptcy order – attendance at ex parte on notice injunction hearing – Bankruptcy Ordinance Cap. 6 s.4(1) – guarantees of nearly HK$18m – appellant guarantor had left Hong Kong permanently in 2000 and resided in Canada then Shenzhen – writs issued December 2003 and February 2004 – default judgments in 2004 – bankruptcy order made in 2007 and subsequently annulled by Barma J for want of jurisdiction – Bank then applied to set aside default judgments, renew writs and dispense with service – Master Hui granted all three orders – Chu J set aside renewal orders (a writ may be extended only up to 12 months from issue) but dispensed with service – whether dispensing with service could stand: held, no – following Leal v Dunlop Bio-processes International Ltd [1984] 1 WLR 874, the procedure for serving out is an exceptional enlargement of jurisdiction and the requirements of O.6 r.7 and O.11 r.1 are not to be lightly disregarded; only in exceptional circumstances will the court validate after the event purported service abroad without leave, and a fortiori where the writ has expired for service – a party who cannot enter through the front door of O.6 r.8 should not be allowed to enter through the back door of dispensing with service of the expired writ – whether the appellant submitted to jurisdiction by applying to annul the bankruptcy order or by attending the injunction hearing: held, no – following Hwoo Huang Linda v Fu Being San [2002] HKCU 428, a party does not submit merely by acting to preserve the status quo pending a forum challenge or by taking defensive action in interlocutory injunction proceedings – the annulment application was itself based on the absence of jurisdiction – appeal allowed – orders of Chu J dispensing with service set aside – service of the writ in each action set aside for the avoidance of doubt – Bank required to obtain leave to serve out and to take such protective measures as it may be advised – respondent to pay appellant's costs of the appeal and below in each of the three appeals.
Legal issues: Dispensing with service of expired writ on defendant out of the jurisdiction · Whether the Appellant submitted to the jurisdiction
Outcome: Appeal allowed. The orders of Chu J dispensing with service of the writs in each of the three actions are set aside.
Cited by 2 cases · Cites 3 cases