CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER

CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER

The judge exercised discretion under Order 13 r.9 and 15 r.6(2) to refuse the insurer's application because the insurer unreasonably delayed (seven to eight months) after receiving notice, causing manifest prejudice to the plaintiff who had relied on the judgment and left the jurisdiction; therefore the Assistant Registrar's order setting aside the default judgment was reversed.

Citation
CHOW CHIU CHEUNG v. HANS JOACHIM BERNICK AND ANOTHER
Parties
Plaintiff: CHOW Chiu-cheung; 1st Defendant: Hans Joachim Bernick; 2nd Defendant: Heidemarie Klempin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 January 1972
Case Number
HCA371/1969
Procedural Posture
Personal Injury Negligence (motor Vehicle) / Appeal From Assistant Registrar to Judge in Chambers (rehearing)
Outcome
Appeal allowed; Assistant Registrar's order setting aside the interlocutory judgment and assessment of damages set aside; original judgment and assessment restored to stand.
Legal Topics
Setting Aside Default Judgment, Substituted Service, Statutory Notice to Insurer, Joinder of Insurer, Delay and Prejudice in Exercising Discretion, Leave to Enter Appearance
Source Language
EN
Motor Vehicle Insurance Civil Procedure Torts Insurance Law Setting Aside Default Judgment Substituted Service Statutory Notice to Insurer Joinder of Insurer +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

CHOW Chiu-cheung

Plaintiff

Hans Joachim Bernick

1st Defendant

Heidemarie Klempin

2nd Defendant

Procedural Posture

Personal Injury Negligence (motor Vehicle) / Appeal From Assistant Registrar to Judge in Chambers (rehearing)

Legal Issues

  1. 1 Whether an insurer who received statutory notice can be permitted to set aside a default judgment and enter an appearance after substantial delay
  2. 2 Whether the insurer's delay and conduct caused prejudice to the plaintiff sufficient to refuse relief
  3. 3 Proper exercise of discretion under Order 13 rule 9 and Order 15 rule 6(2)

Ratio Decidendi

The judge exercised discretion under Order 13 r.9 and 15 r.6(2) to refuse the insurer's application because the insurer unreasonably delayed (seven to eight months) after receiving notice, causing manifest prejudice to the plaintiff who had relied on the judgment and left the jurisdiction; therefore the Assistant Registrar's order setting aside the default judgment was reversed.

Court Disposition

Appeal allowed; Assistant Registrar's order setting aside the interlocutory judgment and assessment of damages set aside; original judgment and assessment restored to stand.

Orders

  • Assistant Registrar's order of 4 November 1971 setting aside the interlocutory judgment and assessment is reversed
  • Plaintiff awarded costs before the Registrar