SO YUET HO v. WONG HON LUNG AND ANOTHER

SO YUET HO v. WONG HON LUNG AND ANOTHER

The Court held that although a full affidavit of merits would be of greater assistance, its absence was not fatal where the defendants exhibited a draft defence and solicitors' correspondence that established triable issues; accordingly the interlocutory default judgment was set aside, but the 1st Defendant must pay the costs thrown away by his failure to file a defence in time.

Citation
SO YUET HO v. WONG HON LUNG AND ANOTHER
Parties
Plaintiffs: So Yuet Ho; Kwok Ka Hei, administrators of the estate of Tse Tam, deceased; 1st Defendant (applicant): Wong Hon Lung; 2nd Defendant: Lee Chi Kin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 September 1973
Case Number
HCA1156/1973
Procedural Posture
Civil Negligence (motor Vehicle Accident) / Application to Set Aside Interlocutory Default Judgment (interlocutory Application)
Outcome
Interlocutory judgment dated 28 July 1973 set aside; 1st Defendant's application granted
Legal Topics
Setting Aside Default Judgment, Affidavit of Merits, Delay, Costs for Wasted Costs, Interlocutory Judgment
Source Language
EN
Civil Procedure Negligence Motor Vehicle Accidents Costs Setting Aside Default Judgment Affidavit of Merits Delay Costs for Wasted Costs +1 more

Case Brief

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Parties

So Yuet Ho; Kwok Ka Hei, administrators of the estate of Tse Tam, deceased

Plaintiffs

Wong Hon Lung

1st Defendant (applicant)

Lee Chi Kin

2nd Defendant

Procedural Posture

Civil Negligence (motor Vehicle Accident) / Application to Set Aside Interlocutory Default Judgment (interlocutory Application)

Legal Issues

  1. 1 Whether an interlocutory default judgment can be set aside in the absence of a full affidavit of merits
  2. 2 Whether exhibiting a draft defence and solicitors' correspondence can establish triable issues
  3. 3 Whether delay in filing a defence is unreasonable and fatal to the application

Ratio Decidendi

The Court held that although a full affidavit of merits would be of greater assistance, its absence was not fatal where the defendants exhibited a draft defence and solicitors' correspondence that established triable issues; accordingly the interlocutory default judgment was set aside, but the 1st Defendant must pay the costs thrown away by his failure to file a defence in time.

Court Disposition

Interlocutory judgment dated 28 July 1973 set aside; 1st Defendant's application granted

Orders

  • Interlocutory Judgment dated 28 July 1973 set aside
  • 1st Defendant's application granted