CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER

CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER

Because the insurer had a direct legal and pecuniary interest and locus standi to ensure proper defences were raised, the court exercised its discretion under Order 15 r.6(2) to add the insurer as a defendant and set aside the default judgment and damages assessment on the condition that the insurer undertakes to pay any damages and may enter appearance and defend the action.

Citation
CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER
Parties
Plaintiff: Chow Chiu Cheung; 1st Defendant: Hans Joachim Bernick; 2nd Defendant: Heidemarie Klempin; Applicant/insurer: American Home Assurance Company
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 November 1971
Case Number
HCA371/1969
Procedural Posture
Civil Personal Injury (road Traffic) / Application to Set Aside Default Judgment and Joinder of Insurer Under Order 15 R.6(2)
Outcome
Judgment entered against 1st defendant on 16 July 1969 and assessment of damages on 18 January 1971 set aside; American Home Assurance Company added as defendant on condition of undertaking to pay any damages; leave to enter appearance and deliver defence granted; costs reserved.
Legal Topics
Set Aside Default Judgment, Joinder of Third Party/necessary Party, Order 13 Rule 9, Order 15 Rule 6(2), Motor Vehicles Insurance (third Party Risks) Ordinance Cap.272, Substituted Service, Assessment of Damages, Locus Standi of Insurer
Source Language
EN
Civil Procedure Insurance Motor Vehicles Tort Personal Injury Set Aside Default Judgment Joinder of Third Party/necessary Party Order 13 Rule 9 Order 15 Rule 6(2) +4 more

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Parties

Chow Chiu Cheung

Plaintiff

Hans Joachim Bernick

1st Defendant

Heidemarie Klempin

2nd Defendant

American Home Assurance Company

Applicant/insurer

Procedural Posture

Civil Personal Injury (road Traffic) / Application to Set Aside Default Judgment and Joinder of Insurer Under Order 15 R.6(2)

Legal Issues

  1. 1 Whether an insurer not originally a party can apply to set aside a default judgment entered against the insured
  2. 2 Whether the insurer has locus standi and a direct legal and pecuniary interest to be added under Order 15 r.6(2)
  3. 3 Whether substituted service and the plaintiff's conduct barred the insurer from relief

Ratio Decidendi

Because the insurer had a direct legal and pecuniary interest and locus standi to ensure proper defences were raised, the court exercised its discretion under Order 15 r.6(2) to add the insurer as a defendant and set aside the default judgment and damages assessment on the condition that the insurer undertakes to pay any damages and may enter appearance and defend the action.

Court Disposition

Judgment entered against 1st defendant on 16 July 1969 and assessment of damages on 18 January 1971 set aside; American Home Assurance Company added as defendant on condition of undertaking to pay any damages; leave to enter appearance and deliver defence granted; costs reserved.

Orders

  • Set aside interlocutory judgment dated 16 July 1969 against the 1st defendant
  • Set aside assessment of damages dated 18 January 1971