RUSSELL PETER BROWN AND OTHERS v. EDWARD EUGENE LEHMAN

RUSSELL PETER BROWN AND OTHERS v. EDWARD EUGENE LEHMAN

The default judgment was entered in breach of RHC Order 13 because the writ included a claim for a permanent injunction which had not been expressly and finally abandoned; Miss Greene's affidavit did not amount to such abandonment; accordingly the court lacked jurisdiction to enter the default judgment and it must be set aside.

Citation
RUSSELL PETER BROWN AND OTHERS v. EDWARD EUGENE LEHMAN
Parties
1st Plaintiff / Respondent: Russell Peter Brown; 2nd Plaintiff / Respondent: Zhou Han Brown; 3rd Plaintiff / Respondent: Effiscient Limited; Defendant / Appellant: Edward Eugene Lehman
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
29 July 2016
Case Number
CACV119/2012
Procedural Posture
Civil Appeal (court of Appeal) / Judgment on Appeal Decision to Set Aside Default Judgment
Outcome
Appeal allowed; default judgment set aside
Legal Topics
Default Judgment, Set Aside, RHC Order 13, Abandonment of Claim, Particulars of Libel (rhc Order 82)
Source Language
EN
Defamation Civil Procedure Contempt of Court Injunctions Default Judgment Set Aside RHC Order 13 Abandonment of Claim +1 more

Case Brief

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Parties

Russell Peter Brown

1st Plaintiff / Respondent

Zhou Han Brown

2nd Plaintiff / Respondent

Effiscient Limited

3rd Plaintiff / Respondent

Edward Eugene Lehman

Defendant / Appellant

Procedural Posture

Civil Appeal (court of Appeal) / Judgment on Appeal Decision to Set Aside Default Judgment

Legal Issues

  1. 1 Whether default judgment should be set aside as irregular
  2. 2 Whether inclusion of a claim for a permanent injunction in the writ prevented entry of default judgment under RHC Order 13
  3. 3 Whether the plaintiffs had expressly and finally abandoned the injunction claim

Ratio Decidendi

The default judgment was entered in breach of RHC Order 13 because the writ included a claim for a permanent injunction which had not been expressly and finally abandoned; Miss Greene's affidavit did not amount to such abandonment; accordingly the court lacked jurisdiction to enter the default judgment and it must be set aside.

Court Disposition

Appeal allowed; default judgment set aside

Orders

  • Default judgment set aside
  • Order nisi that the costs of this appeal, including the costs of the adjournment, be paid by the plaintiffs to the defendant, to be taxed on the party and party basis if not agreed