CHOW MING SZE and Another v. LAU YUET SHUENG and Another

CHOW MING SZE and Another v. LAU YUET SHUENG and Another

The court held that the omission to file the affidavit of service was a minor irregularity properly condoned where the defendant had actual notice and suffered no prejudice, and that the defendants' case lacked a real prospect of success both on the evidence and in law because reliance on an unenforceable oral agreement for the sale of land impermissibly seeks to enforce rights contrary to the writing requirement; accordingly the appeal to set aside the judgment was dismissed.

Citation
CHOW MING SZE and Another v. LAU YUET SHUENG and Another
Parties
Plaintiffs: CHOW MING SZE and KOON TUNG YING, Administrators of the Estate of CHOW FUNG LING, deceased; Defendants: LAU YUET SHUENG and LAU CHI CHUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 January 1998
Case Number
HCA1552/1997
Procedural Posture
Civil Claim for Recovery of Payments / Proprietary Interest in Land; Application to Set Aside Default Judgment / Appeal Against Registrar's Dismissal of Summons to Set Aside Default Judgment; Hearing in High Court (chambers)
Outcome
Appeal dismissed; Registrar's dismissal of summons affirmed; costs to plaintiffs.
Legal Topics
Setting Aside Default Judgment, Statute of Frauds / Writing Requirement for Land Transactions, Oral Agreement as Defence, Constructive/express Trust, Mortgage and Sale of Land
Source Language
EN
Trusts Property Law Contract Civil Procedure Equity Setting Aside Default Judgment Statute of Frauds / Writing Requirement for Land Transactions Oral Agreement as Defence +2 more

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Parties

CHOW MING SZE and KOON TUNG YING, Administrators of the Estate of CHOW FUNG LING, deceased

Plaintiffs

LAU YUET SHUENG and LAU CHI CHUNG

Defendants

Procedural Posture

Civil Claim for Recovery of Payments / Proprietary Interest in Land; Application to Set Aside Default Judgment / Appeal Against Registrar's Dismissal of Summons to Set Aside Default Judgment; Hearing in High Court (chambers)

Legal Issues

  1. 1 Whether default judgment was irregular for failure to file affidavit of service under Order 19 r.8A(1)(b) and whether that irregularity requires setting aside without considering merits
  2. 2 Whether the defendants have a real prospect of success on the facts
  3. 3 Whether an alleged oral agreement for the sale of land can be relied on in defence where the agreement is not in writing

Ratio Decidendi

The court held that the omission to file the affidavit of service was a minor irregularity properly condoned where the defendant had actual notice and suffered no prejudice, and that the defendants' case lacked a real prospect of success both on the evidence and in law because reliance on an unenforceable oral agreement for the sale of land impermissibly seeks to enforce rights contrary to the writing requirement; accordingly the appeal to set aside the judgment was dismissed.

Court Disposition

Appeal dismissed; Registrar's dismissal of summons affirmed; costs to plaintiffs.

Orders

  • Appeal dismissed
  • Order nisi: defendants to pay the plaintiffs' costs