LAU PING v. LIM GARY RADFORD

LAU PING v. LIM GARY RADFORD

Despite the pending Stay Summons under Order 12 r 8 and related foreign proceedings, the defendant was in default for failing to file a Defence by the Unless Order deadline; however, in the exercise of the court's discretion and for proper case management the court will not enter default judgment immediately but will adjourn the Judgment Summons sine die to permit the defendant to apply formally for relief from sanction and to have that application heard together with the Stay Summons.

Citation
[2021] HKCFI 1137
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 April 2021
Case Number
HCA897/2020
Procedural Posture
Civil Contract (joint Venture) / Interlocutory — Hearing on Judgment Summons (order 19 R 7)
Outcome
Judgment summons adjourned sine die; defendant found to be in default but allowed opportunity to apply for relief from sanction; plaintiff awarded costs of this hearing to be assessed and paid forthwith.
Legal Topics
Unless Order, Default Judgment, Stay of Proceedings (order 12 R 8), Relief From Sanction (order 2 R 4), Extension of Time (order 18 R 2(3))
Source Language
EN
Civil Procedure Contract Conflict of Laws Jurisdiction Unless Order Default Judgment Stay of Proceedings (order 12 R 8) Relief From Sanction (order 2 R 4) +1 more

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Procedural Posture

Civil Contract (joint Venture) / Interlocutory — Hearing on Judgment Summons (order 19 R 7)

Legal Issues

  1. 1 Whether the taking out of a summons under Order 12 r 8 automatically prevents default under an Unless Order and extends time under Order 18 r 2(3)
  2. 2 Whether the defendant was in default for failing to file a Defence by the Unless Order deadline
  3. 3 Whether judgment should be entered under Order 19 r 7 or adjourned to allow an application for relief from sanction and to resolve pending stay/foreign proceedings

Ratio Decidendi

Despite the pending Stay Summons under Order 12 r 8 and related foreign proceedings, the defendant was in default for failing to file a Defence by the Unless Order deadline; however, in the exercise of the court's discretion and for proper case management the court will not enter default judgment immediately but will adjourn the Judgment Summons sine die to permit the defendant to apply formally for relief from sanction and to have that application heard together with the Stay Summons.

Court Disposition

Judgment summons adjourned sine die; defendant found to be in default but allowed opportunity to apply for relief from sanction; plaintiff awarded costs of this hearing to be assessed and paid forthwith.

Orders

  • Judgment Summons adjourned sine die with liberty to restore
  • Defendant to issue a summons within 7 days to apply formally for relief from sanction