BANK OF CHINA (HONG KONG) LTD v. REGAL LINK INVESTMENT LTD AND OTHERS

BANK OF CHINA (HONG KONG) LTD v. REGAL LINK INVESTMENT LTD AND OTHERS

The Court of Appeal set aside the orders dispensing with service because the appellant was outside the jurisdiction and the Bank had not obtained the mandatory leave to serve out under the Rules of the High Court; the court will not use its inherent jurisdiction to validate lapsed writs or circumvent Order 6 r.7 and Order 11 r.1 RHC except in exceptional circumstances, which were not present here.

Citation
BANK OF CHINA (HONG KONG) LTD v. REGAL LINK INVESTMENT LTD AND OTHERS
Parties
Plaintiff (respondent): Bank of China (Hong Kong) Limited; 1st Defendant: Regal Link Investment Limited; 1st Defendant: All World International Limited; 1st Defendant: Link Regent Investment Limited; 2nd Defendant: Wong Tak Kung; 3rd Defendant (appellant): Wong Lei Kwan Joanne (also known as Wong Lei Kwan Joanna)
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
9 March 2009
Case Number
CACV305/2008
Procedural Posture
Civil Appeal (court of Appeal) / Judgment on Appeal
Outcome
Order of Chu J in each action dispensing with service of the writ is set aside; service of the writ in each action is set aside; costs ordered for the appellant.
Legal Topics
Service of Process, Service Out (leave to Serve Out), Dispensing With Service, Default Judgment, Annulment of Bankruptcy Order, Renewal/extension of Writ, Submission to Jurisdiction
Source Language
EN
Civil Procedure Bankruptcy Law Private International Law Contract/guarantee Injunctions Service of Process Service Out (leave to Serve Out) Dispensing With Service +4 more

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Parties

Bank of China (Hong Kong) Limited

Plaintiff (respondent)

Regal Link Investment Limited

1st Defendant

All World International Limited

1st Defendant

Link Regent Investment Limited

1st Defendant

Wong Tak Kung

2nd Defendant

Wong Lei Kwan Joanne (also known as Wong Lei Kwan Joanna)

3rd Defendant (appellant)

Procedural Posture

Civil Appeal (court of Appeal) / Judgment on Appeal

Legal Issues

  1. 1 Whether the High Court could dispense with service of lapsed writs on a defendant domiciled outside Hong Kong without prior leave to serve out under the Rules of the High Court
  2. 2 Whether failure to obtain leave to serve out could be cured by the court's inherent jurisdiction or under Order 2 r.1 RHC
  3. 3 Whether the appellant had submitted to the jurisdiction of the Hong Kong courts by taking steps in related proceedings (annulment of bankruptcy, injunction proceedings)

Ratio Decidendi

The Court of Appeal set aside the orders dispensing with service because the appellant was outside the jurisdiction and the Bank had not obtained the mandatory leave to serve out under the Rules of the High Court; the court will not use its inherent jurisdiction to validate lapsed writs or circumvent Order 6 r.7 and Order 11 r.1 RHC except in exceptional circumstances, which were not present here.

Court Disposition

Order of Chu J in each action dispensing with service of the writ is set aside; service of the writ in each action is set aside; costs ordered for the appellant.

Orders

  • Order of Chu J dispensing with service of the writ set aside in each action
  • Service of the writ in each action is set aside