New York Life Insurance Worldwide Ltd v. Chow Wai Man

DCCJ 4393/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4393 OF 2008

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Coram: Her Honour Judge H C Wong in Chambers (Open to Public)

Date of Hearing: 26 November 2010

Date of Delivery of Decision: 26 November 2010

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D E C I S I O N

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1.The defendant appealed against Master Mak’s Order of 12 February 2010 out of time. The application before Master Mak was taken out on 25 September 2009. It was to set aside the Judgment in default entered against him on 13 November 2008.

2.The defendant alleged in paragraph 2 of his affidavit in support of the appeal that he had only come to know the Judgment against him in March 2009 when he accompanied a friend to court and happened to meet the plaintiff’s solicitors who told him there was a Judgment against him.  Unfortunately he did not lodge an application to set aside the Judgment until 25 September 2009, six months after he learned of the Judgment against him.

3.Meanwhile, the plaintiff had petitioned for his bankruptcy under High Court Action HCB3800 of 2009.  The bankruptcy proceedings have been repeatedly adjourned pending the outcome of his application to set aside the Default Judgment.  On 12 February 2010, his application to set aside the Default Judgment was heard by Master Mak and was turned down.  He did not lodge an appeal against the Master’s Order until 12 November 2010.  That appeal is heard today. 

4.The defendant claimed the plaintiff’s Judgment against him was irregular because the writ was served at his old address which he gave to the plaintiff in May 2007.  He claimed he told the plaintiff he had changed his address one month later in June 2007 when he signed the Agency Agreement with the plaintiff.  He exhibited one page, page 1 of the 14 June 2007 agreement exhibited to his affidavit of 12 November 2010.  However, he failed to exhibit the rest of the agreement or the parties’ signatures showing it was a signed, valid agreement.  No signature can be found on that one page, page 1 of a document that should be 11 pages long.  It is not known whether it was signed and executed.

5.Mr Brown, the legal representative of the plaintiff, submitted the plaintiff did serve the writ of summons on both the residential and the business address of the defendant but the defendant in the present application had failed to explain whether he received the writ served at his work address at ING Insurance.  The defendant had only disputed the service at his home address in his affidavit.  Mr Brown further submitted that service by registered post to both the residential and work address of the defendant are valid forms of service and that service to these addresses have not been returned.  There is an affidavit of service filed by the plaintiff on the service to the defendant filed on 3 November 2008.

6.I am not satisfied the defendant’s affidavit was full and frank.  He had failed to give full details as to how he had only come to learn of the Judgment against him in March 2009.  He did not explain whether he received service at his work address.  He claimed he had only come to learn of the judgment against him when he accompanied a friend to go to court.  He failed to explain how he came to know the plaintiff’s solicitor in court and how did the plaintiff’s solicitor know he was a judgment debtor.  If he did not know he was being sued, how would he know the plaintiff’s solicitor?

7.He further failed to explain in his affidavit why he had given two different residential addresses to the plaintiff, what was his address at the time of service?  There was no other documents to show which was his real address.  It is common knowledge that the Wah Fu address he claims he is residing now is a public housing estate while the other one, the Hung Chak House, Hung Fuk Court address does not seem to be a public housing address, so why would he be moving from one to the other or was he keeping both addresses, one as a corresponding address, the other as a residential address or was he residing in any one of those addresses at all?  He failed to show at the time of the service that he was not residing at the Hung Chak House address, but at Wah Fu Estate with any independent evidence, therefore, it is not known where he was residing at that time.

8.Mr Kwong, the defendant’s legal representative, informed the court that he had intended the present hearing to be an application for leave out of time.  If granted, he would file further affidavit on the merits of the appeal.  He said he had only intended the hearing to be a 15 or 30 minute hearing.  It is to be noted that Mr Kwong’s summons had stated the estimated hearing time to be 2 hours, not the 15 minutes he claimed he intended.  In any event, it is common practice for an appeal of a Master’s Order to be heard together with the application for leave to appeal out of time, I am sure Mr Kwong should be well aware of the practice.

9.After full consideration of the defendant’s appeal, I am not convinced that the Judgment in Default was irregular.  The defendant was served both at his residential address and work address.  The defendant did not dispute he was working at ING at the time of the service of the writ and he had failed to disclose whether he received service at his work address.  Even if he had only learned of the Default Judgment in March 2009, he had delayed his application to set aside the Default Judgment by six months when he lodged the application to set aside on 25 September 2009, over six months late.  Why?  The defendant failed to offer any explanation.

10.He further delayed in lodging his appeal promptly after the Order of Master Mak in February 2010.  Nine months later, he lodged the present application to appeal out of time.  His explanation was he failed to obtain Legal Aid but he failed to appeal against the refusal.  He claimed he went to three different free legal advice scheme lawyers.  All gave him unhelpful advice until sometime in October he met Mr Kwong, his present solicitor.  This kind of reasons is insufficient to explain why he did not lodge an appeal in time.  The delay in his application to set aside before Master Mak was a long one, the delay in lodging an application to appeal against Master Mak’s Order was another long delay.  These delays are obviously unreasonable and inordinate.  As I find that the Judgment against the defendant was not an irregular one, one then looks at the merit of the defence.   

11.The defendant claimed the plaintiff was in breach of the contract and he was wrongly dismissed.  He did not explain in what way he was wrongly dismissed, there were no details in his supporting affidavit.  I agree with Mr Brown that the claim against him lodged by the plaintiff is for payment made in advance which the plaintiff claimed it is entitled to recover from the defendant when his contract was terminated before a certain date.  Whether he was wrongly dismissed or his contract was wrongly terminated is not strictly speaking relevant and in any event the defendant failed to give any details on the merits of his defence.

12.Based on the available information, and major details missing, I find the defence completely devoid of merits. 

13.For the aforesaid reasons, the defendant's appeal is dismissed with costs to the plaintiff to be taxed if not agreed.

Representation:

Mr Toby Brown, of Messrs Kennedys, for the Plaintiff

Mr Kwong Chi Ho, of T K Cheng & Co., for the Defendant