New York Life Insurance Worldwide Ltd v. Chan Wai Man Anthony

DCCJ 3843/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3843 OF 2008

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Before: Deputy District Judge Wilson Chan in Chambers

Date of Hearing: 29 March 2011

Date of Decision: 29 March 2011

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D E C I S I O N

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1.This is an appeal against the decision of Master G. Own dated 3 March 2011 (the “Master’s Decision”), whereby the defendant’s application by Summons dated 21 January 2011 to set aside the Default Judgment entered herein on 24 October 2008 was dismissed with costs.

2.The background to the plaintiff’s claim in this action and the circumstances leading to the Default Judgment have been set out in paragraphs 9 to 15 of the Master’s Decision, which I do not intend to repeat here.

3.It is trite that an appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time (Hong Kong Civil Procedure 2011, Vol. 1, Practice Note 58/1/2 at page 998).

4.However, in the same Practice Note, it is stated that a judge hearing an appeal from a master is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself.  By so doing, the judge does not fail to exercise the discretion conferred on him.

Regular or Irregular Judgment

5.In Cosec Nominees Limited v Lau Hon Ming Alan [2001] 3 HKC 290, Deputy High Court Judge Jeremy Poon (as he then was) held that under Order 10, rule 1(2) of the Rules of the High Court, service of proceedings is duly effected when the proceedings are brought to the notice of a defendant and not on merely delivery of the Writ to his last known address.

6.In paragraph 17 of the Master’s Decision, the learned Master set out an often-quoted passage from the Hong Kong Civil Procedure, saying that in a case where a defendant deposes that he had not received the Writ through the post, the court has little option but to believe this, save where there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him.

7.I think this may have put the matter too much in favour of a defendant. In Bank of China (Hong Kong) Limited v Cheung King Fung [2007] 1 HKLRD 462, at paragraphs 33 and 34, after referring to the same passage in the Hong Kong Civil Procedure, Tang JA (as he then was) had this to say:

“33. We do not read this as suggesting that the court must accept a defendant’s assertion no matter how improbable.

34. It is quite clear from Forward v West Sussex County Council & Others [1995] 1 WLR 1469, that a defendant is required to provide “convincing evidence”: at page 1473G. The Master of the Rolls went on to say of the Judge that “He was in our view quite right to be sceptical of the contention that the fourth defendant had not received the writ in the absence of compelling evidence to show that it had not been forwarded on to him, as would in the ordinary course be accepted”: at page 1474H. Of course, how much evidence is required must depend on the circumstances of the particular case.”

8.Thus, where service has been properly effected under Order 10, rule 1(2), the burden is on the defendant to show that the proceedings were not brought to his notice. 

9.Anyhow, for the reasons stated in paragraphs 18 to 25 of the Master’s Decision, which I agree with and respectfully adopt, I am not satisfied that the defendant has discharged the burden or has provided “convincing evidence” to show that these proceedings were not brought to his notice before default judgment was entered.

10.Accordingly, the Default Judgment entered by the plaintiff in this action was a regular judgment.

Merits of the defence

11.On an application to set aside a regular default judgment, the major consideration is whether the defendant has shown a defence on the merits to which the court should pay heed (see: Hong Kong Civil Procedure 2011, Vol. 1, Practice Note 13/9/13 at page 213).

12.At the beginning of today’s hearing, the defendant has confirmed that his intended defences have been correctly summarised and set out in paragraphs 28 to 30 of the Master’s Decision, namely:-

“28. The defendant contended about his termination being wrongful, as the plaintiff had failed to investigate into his complaint about his upline manager, Mr Dick Chan. He alleged at that time his performance was good. His upline manager, Mr Dick Chan, wanted him off so that he could grasp those managers he invited to join New York Life.

29. The other contention being that the term or right of termination was unfair and not applicable to his case, because his performance was good.

30. The defendant’s third contention was that nobody explained to him the terms of the agreements he had signed and he was simply asked to sign it without actually going through the contents in details.”

13.For the reasons set out in paragraphs 31 to 44 of the Master’s Decision, which I agree with and respectfully adopt, I am not satisfied that the defendant has a defence with a real prospect of success.  I agree with the learned Master that Clause 16.1 of the Agent’s Agreement conferred a contractual right available to both contracting parties to bring the contractual relationship to an end without cause.

14.Accordingly, the defendant’s appeal is dismissed.

(Discussion re costs)

15.I order that costs of the appeal be to the plaintiff, to be taxed if not agreed.

Mr Toby Brown, of Messrs Kennedys, for the Plaintiff

Defendant, in person, present