NG SIK KAI v. LUI WING LOK t/a WING WAH OIL SHIP CO

NG SIK KAI v. LUI WING LOK t/a WING WAH OIL SHIP CO

Default judgment was set aside because the defendant demonstrated a real prospect of success by adducing potentially credible evidence that the refuelling was unauthorised and done by crew for their own benefit, raising triable issues as to course of employment; no evidence of calculated or malicious delay and no prejudice shown to plaintiff, so discretion to set aside was exercised in favour of defendant while making costs orders.

Citation
NG SIK KAI v. LUI WING LOK t/a WING WAH OIL SHIP CO
Parties
Plaintiff: bjbj; Defendant: SHIP CO.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2017
Case Number
HCPI1030/2015
Procedural Posture
Personal Injury Common Law Claim; Application to Set Aside Default Judgment / Interlocutory Application to Set Aside Default Judgment in Chambers
Outcome
Interlocutory default judgment set aside; defendant granted liberty to defend subject to conditions; costs awarded to plaintiff to be taxed
Legal Topics
Setting Aside Default Judgment, Order 13 Rule 9, Real Prospect Test, Employees Compensation, Vicarious Liability, Procedure for Filing Defence
Source Language
EN
Civil Procedure Tort Employment Law Personal Injury Vicarious Liability Setting Aside Default Judgment Order 13 Rule 9 Real Prospect Test +2 more

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Parties

bjbj

Plaintiff

SHIP CO.

Defendant

Procedural Posture

Personal Injury Common Law Claim; Application to Set Aside Default Judgment / Interlocutory Application to Set Aside Default Judgment in Chambers

Legal Issues

  1. 1 Whether to set aside regularly entered default judgment
  2. 2 Whether defendant has a real prospect of success on defence
  3. 3 Whether injury occurred in course of employment (vicarious liability) or as unauthorized act by servant

Ratio Decidendi

Default judgment was set aside because the defendant demonstrated a real prospect of success by adducing potentially credible evidence that the refuelling was unauthorised and done by crew for their own benefit, raising triable issues as to course of employment; no evidence of calculated or malicious delay and no prejudice shown to plaintiff, so discretion to set aside was exercised in favour of defendant while making costs orders.

Court Disposition

Interlocutory default judgment set aside; defendant granted liberty to defend subject to conditions; costs awarded to plaintiff to be taxed

Orders

  • The Interlocutory Judgment dated 18 July 2016 be set aside
  • The defendant be at liberty to defend the action by filing and serving his defence within 7 days of this order