BRAD STERLING SMOLAR v. PROSPORT MANAGEMENT LTD. AND ANOTHER

BRAD STERLING SMOLAR v. PROSPORT MANAGEMENT LTD. AND ANOTHER

The Court held that service was valid because on the balance of probabilities Mr Bredbury had actual or ostensible authority to inform the plaintiff the Statement of Claim could be served at the Asian House/Cell Plus address and the registered post was delivered; the default judgment was regular (the court has...

Source-derived case information.

Citation
BRAD STERLING SMOLAR v. PROSPORT MANAGEMENT LTD. AND ANOTHER
Parties
Plaintiff: Brad Sterling Smolar; 1st Defendant: Prosport Management Limited; 2nd Defendant: Steven Marc Feuerstein
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 August 2001
Case Number
HCA7744/2000
Procedural Posture
Labour Tribunal Claim Transferred to Court of First Instance (employment Dispute) / Appeal From Master's Order Setting Aside Default Judgment (chambers Hearing)
Outcome
Appeal dismissed; default judgment dated 8 November 2000 remains set aside on merits
Legal Topics
Service of Process, Default Judgment, Setting Aside Judgment, Ostensible Authority, Costs, Inherent Jurisdiction
Source Language
en
Civil Procedure Employment Law Labour Law Service of Process Judgments and Enforcement Default Judgment Setting Aside Judgment Ostensible Authority +2 more

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Parties

Brad Sterling Smolar

Plaintiff

Prosport Management Limited

1st Defendant

Steven Marc Feuerstein

2nd Defendant

Procedural Posture

Labour Tribunal Claim Transferred to Court of First Instance (employment Dispute) / Appeal From Master's Order Setting Aside Default Judgment (chambers Hearing)

Legal Issues

  1. 1 Whether the Statement of Claim was validly served
  2. 2 Whether Mr Timothy Bredbury had actual or ostensible authority to accept service or give an address for service
  3. 3 Whether default judgment under Order 19, r.2 applies to proceedings transferred under Order 79 or whether the court's inherent power suffices

Ratio Decidendi

The Court held that service was valid because on the balance of probabilities Mr Bredbury had actual or ostensible authority to inform the plaintiff the Statement of Claim could be served at the Asian House/Cell Plus address and the registered post was delivered; the default judgment was regular (the court has inherent power and Order 19 r.2 is not a bar to entering judgment in transferred tribunal matters); however there existed a bona fide defence on the merits so the default judgment was properly set aside. Costs were apportioned: defendants to pay costs of the Master's hearing to the plaintiff; defendants to have the costs of the appeal; and no taxation or payment of costs until...

Court Disposition

Appeal dismissed; default judgment dated 8 November 2000 remains set aside on merits

Orders

  • Default judgment dated 8 November 2000 set aside.
  • Defendants to pay the plaintiff's costs of the hearing before the Master (in any event).