CHINA EXPRESS CARD LTD v. POON YIU WAH t/a SHUN HING AND ANOTHER

CHINA EXPRESS CARD LTD v. POON YIU WAH t/a SHUN HING AND ANOTHER

Service on the 2nd defendant was not at her usual or last known address and the plaintiff had no reasonable grounds to rely solely on the 1st defendant's representation; accordingly the default judgment was obtained irregularly and must be set aside without considering the merits; the charging order nisi is vacated and the 2nd defendant may defend the action.

Citation
CHINA EXPRESS CARD LTD v. POON YIU WAH t/a SHUN HING AND ANOTHER
Parties
Plaintiff: China Express Card Limited; 1st Defendant: Poon Yiu Wah trading as Shun Hing (CHING-HK) Transportation Company; 2nd Defendant: Chui Yuk Lin
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
1 December 2004
Case Number
DCCJ3892/2003
Procedural Posture
Civil Claim Debt/contract (sale of Goods) / Application to Set Aside Default Judgment, Charging Order Nisi and Stay Execution
Outcome
Default judgment set aside; charging order nisi vacated; 2nd defendant permitted to defend subject to acknowledging service; costs awarded against 2nd defendant (nisi) with certificate for counsel.
Legal Topics
Set Aside Judgment, Service of Process, Charging Order, Guarantee, Default Judgment, Stay of Execution
Source Language
EN
Civil Procedure Contract Debt Recovery Property Enforcement Set Aside Judgment Service of Process Charging Order Guarantee +2 more

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Parties

China Express Card Limited

Plaintiff

Poon Yiu Wah trading as Shun Hing (CHING-HK) Transportation Company

1st Defendant

Chui Yuk Lin

2nd Defendant

Procedural Posture

Civil Claim Debt/contract (sale of Goods) / Application to Set Aside Default Judgment, Charging Order Nisi and Stay Execution

Legal Issues

  1. 1 Whether service of the writ complied with requirement to be at defendant's usual or last known address under Order 10 Rule 1(2)
  2. 2 Whether the default judgment was obtained irregularly
  3. 3 Whether the 2nd defendant has a real prospect of success (meritorious defence) if judgment was regular

Ratio Decidendi

Service on the 2nd defendant was not at her usual or last known address and the plaintiff had no reasonable grounds to rely solely on the 1st defendant's representation; accordingly the default judgment was obtained irregularly and must be set aside without considering the merits; the charging order nisi is vacated and the 2nd defendant may defend the action.

Court Disposition

Default judgment set aside; charging order nisi vacated; 2nd defendant permitted to defend subject to acknowledging service; costs awarded against 2nd defendant (nisi) with certificate for counsel.

Orders

  • Default judgment dated 12 November 2003 set aside as against the 2nd defendant
  • Charging order nisi dated 13 August 2004 vacated