Read the full judgment text of CACV 000130/2003 on BabelCite. This Court of Appeal judgment was delivered on 22 October 2003 before Rogers VP, Le Pichon JA.
Civil appeal – striking out of defence – Order 34 rule 5 of the Rules of the District Court – default judgment – water leakage from roof into top-floor flat – plaintiff Tech Focus Limited, defendants Austria Property Management Limited and The Incorporated Owners of Yee Fung Building – claim originally brought in Small Claims Tribunal and transferred to District Court – directions given for exchange of expert reports – defendants failed to file response to plaintiff's Pre-Trial Review notice under O.34 r.3 – plaintiff applied for judgment under O.34 r.5 – judge below struck out defence and granted injunction with interlocutory judgment for damages to be assessed – defendants appealed – whether judgment should be set aside – whether defendants' delay sufficient to justify striking out – whether injunction properly framed – Court of Appeal held that defendants' delay was not so serious as to justify driving them from the judgment seat – judge below was unaware that defendants had on 31 March 2003 requested inspection of the property in order to prepare their expert report, which request plaintiff had declined for no good reason – defendants' expert report raised genuine factual issues as to cause of the leak, including possible involvement of illegal structures on the premises – these issues required determination before the appropriate remedy could be decided – appeal allowed – judgment below set aside and defence restored – form of injunction also noted to be problematic: though framed as a prohibitory injunction, it was in substance a mandatory injunction and lacked the precision required of mandatory injunctions – costs order of the court below left undisturbed because defendants would in any event have been seeking an adjournment and would have had to pay the costs of the hearing.
Legal issues: Whether default judgment and striking out of defence under O.34 r.5 RDC should be set aside on appeal · Form and precision of the injunction granted below
Outcome: Appeal allowed; judgment entered below set aside; defence restored; costs order of the court below left undisturbed.
Cited by 2 cases