Ho Kwok Wah v. Group Jewellery Arts Ltd. and Others

CACV000152/2000

CACV152/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 152 OF 2000

(ON APPEAL FROM HCA 130 OF 1999)

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Coram: Hon Rogers VP & Hon Leong JA in Court

Date of Hearing: 22 September 2000

Date of Judgment: 22 September 2000

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J U D G M E N T

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Hon Rogers VP (giving the judgment of the Court) :

1. This is an application for leave to appeal to the Court of Final Appeal.

2. The facts of the case are set out in the judgment of this court of 11 July 2000.

3. Mr Au Yeung Kwan on behalf of the plaintiff seeks leave on the basis of two questions :

(a) Whether service on a body corporate in purported compliance with section 356 of Cap.32 will suffice? Or, whether regard must also be had to Order 10 rule 1, Order 65 rule 3 of the Rules of the High Court in order to constitute proper or regular service?

(b) Whether a default judgment obtained fraudulently is in the same category as an irregular judgment and should be set aside as of right?

4. The first point has been dealt with in the judgment. The question as to how a company may be served is undoubtedly one of general importance but, in our view, the statutory provisions of section 356 of the Companies Ordinance, Cap.32 are clear. In so far as Mr Au Yeung Kwan places his argument on the ground that the writ did not come to the notice of the 1st defendant, in this case, the fact that the directors were at loggerheads and that the writ did not come to the attention of both directors may give rise to some action between the directors but as far as service is concerned the service is still good.

5. In respect of the second question, in our view, no allegation of fraud can properly be made. Even today counsel has been unable to indicate what defence the 1st defendant may have had to the claim made in the writ.

6. This application therefore falls to be dismissed.

Representation:

Mr Au Yeung Kwan instructed by Messrs Gary Mak, Dennis Wong & Chang for Plaintiff/Applicant

Mr Samson Hung instructed by Messrs Dominic Y K Lai & Co for 2nd and 3rd Defendants/Respondents