WOO WING CHI AND ANOTHER v. CHAN SHUN CHING JOSEPHINE

WOO WING CHI AND ANOTHER v. CHAN SHUN CHING JOSEPHINE

The expungement application was dismissed because the contested WhatsApp communications were intended to be open and thus not protected by without prejudice privilege, and separately were waived by failure to object earlier; leave to file a late fourth affidavit and uplift the legal aid stay were refused as unjustified and late; the defendant failed to prove lack of actual notice so the default judgment was regular on service grounds but, on consideration of the merits, there was a real prospect regarding the 2nd declaration that it was a loan evidenced by contemporaneous messages and payments; accordingly the Default Judgment was set aside on terms requiring payment into court of...

Citation
[2023] HKDC 1610
Parties
1st Plaintiff: Woo Wing Chi; 2nd Plaintiff: Chan Ming Wai; Defendant: Chan Shun Ching Josephine
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 November 2023
Case Number
DCCJ299/2022
Procedural Posture
Civil Action for Recovery of Sums, Setting Aside Default Judgment and Interlocutory Applications / Appeal From Master’s Order and Hearing of Expungement Summons in Chambers
Outcome
Expungement Summons dismissed; leave to file further affidavit and uplift legal aid stay refused; Default Judgment set aside on terms
Legal Topics
Default Judgment, Setting Aside Judgment, Service of Process, Without Prejudice Privilege, Leave to Adduce Further Evidence (ladd V Marshall), Declarations of Trust Vs Loan Characterization, Reflective Loss, Costs Orders, Legal Aid Stay
Source Language
EN
Civil Procedure Evidence Contract Trusts Company Law Statutory Interpretation (money Lenders Ordinance) Default Judgment Setting Aside Judgment +7 more

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Parties

Woo Wing Chi

1st Plaintiff

Chan Ming Wai

2nd Plaintiff

Chan Shun Ching Josephine

Defendant

Procedural Posture

Civil Action for Recovery of Sums, Setting Aside Default Judgment and Interlocutory Applications / Appeal From Master’s Order and Hearing of Expungement Summons in Chambers

Legal Issues

  1. 1 Whether parts of plaintiffs’ affirmation and WhatsApp communications are protected by without prejudice privilege and should be expunged
  2. 2 Whether leave should be granted to file a late fourth affidavit and admit further evidence on appeal
  3. 3 Whether legal aid stay should be uplifted

Ratio Decidendi

The expungement application was dismissed because the contested WhatsApp communications were intended to be open and thus not protected by without prejudice privilege, and separately were waived by failure to object earlier; leave to file a late fourth affidavit and uplift the legal aid stay were refused as unjustified and late; the defendant failed to prove lack of actual notice so the default judgment was regular on service grounds but, on consideration of the merits, there was a real prospect regarding the 2nd declaration that it was a loan evidenced by contemporaneous messages and payments; accordingly the Default Judgment was set aside on terms requiring payment into court of...

Court Disposition

Expungement Summons dismissed; leave to file further affidavit and uplift legal aid stay refused; Default Judgment set aside on terms

Orders

  • Expungement Summons dismissed in entirety
  • Costs of and incidental to the Expungement Summons to the plaintiffs forthwith with a certificate for counsel, to be taxed if not agreed