KOO DICK YOUNG GUDY AND OTHERS v. CHAN KIN HANG DANVIL AND OTHERS

KOO DICK YOUNG GUDY AND OTHERS v. CHAN KIN HANG DANVIL AND OTHERS

The proposed new evidence did not satisfy Ladd v Marshall (primarily because it could have been obtained with reasonable diligence and contained inconsistent and inherently implausible statements), accordingly it was not admitted; on the evidence before the Master there was no defence with a real prospect of success — the alleged verbal agreement and promissory estoppel claim were contradicted by the written Settlement Agreement and by the lack of pleaded or credible reliance — therefore the Master’s refusal to set aside the default judgment was upheld and the appeal dismissed.

Citation
[2024] HKCFI 377
Parties
1st Plaintiff: Koo Dick Young Gudy (顧廸洋); 2nd Plaintiff: Koo Dick Kei Kitty (顧廸琪); 3rd Plaintiff: Koo Shing Sun (顧仁生); 4th Plaintiff: Chan Kam Har (陳錦霞); 1st Defendant: Chan Kin Hang Danvil (陳健衡); 2nd Defendant: Wong Chow Han (黃秋嫻); 3rd Defendant: Ko Wai Kar; 4th Defendant: Ko Wai Cheung Albert (高惠章); 5th Defendant: ADGS Advisory Limited; 6th Defendant: All Victory Asia Limited (勝利亞洲有限公司)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 February 2024
Case Number
HCA1879/2017
Procedural Posture
Civil Action Concerning Share Sale, Alleged Fraud and Debt, Default Judgment and Set Aside Application / Appeal by Way of Rehearing Under Order 58 Against Master’s Refusal to Set Aside Default Judgment; Decision on New Evidence Application and Appeal in High Court (reasons for Decision)
Outcome
New Evidence Application dismissed; Appeal against Master Chau’s refusal to set aside Default Judgment dismissed; Default Judgment not set aside; costs awarded to 1st and 2nd Plaintiffs.
Legal Topics
Default Judgment, Set Aside Application, Admission of Fresh Evidence (ladd V Marshall), Promissory Estoppel, Settlement Agreement, Collateral Contract
Source Language
EN
Contract Civil Procedure Equity (estoppel) Fraud Default Judgment Set Aside Application Admission of Fresh Evidence (ladd V Marshall) Promissory Estoppel +2 more

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Parties

Koo Dick Young Gudy (顧廸洋)

1st Plaintiff

Koo Dick Kei Kitty (顧廸琪)

2nd Plaintiff

Koo Shing Sun (顧仁生)

3rd Plaintiff

Chan Kam Har (陳錦霞)

4th Plaintiff

Chan Kin Hang Danvil (陳健衡)

1st Defendant

Wong Chow Han (黃秋嫻)

2nd Defendant

Ko Wai Kar

3rd Defendant

Ko Wai Cheung Albert (高惠章)

4th Defendant

ADGS Advisory Limited

5th Defendant

All Victory Asia Limited (勝利亞洲有限公司)

6th Defendant

Procedural Posture

Civil Action Concerning Share Sale, Alleged Fraud and Debt, Default Judgment and Set Aside Application / Appeal by Way of Rehearing Under Order 58 Against Master’s Refusal to Set Aside Default Judgment; Decision on New Evidence Application and Appeal in High Court (reasons for Decision)

Legal Issues

  1. 1 Whether proposed new evidence satisfies Ladd v Marshall and Order 58 rule 1(5) and should be admitted on appeal
  2. 2 Whether the default judgment should be set aside for a defence with a real prospect of success
  3. 3 Whether an alleged verbal agreement or promissory estoppel prevents plaintiffs from recommencing proceedings or enforces a collateral variation to the written settlement agreement

Ratio Decidendi

The proposed new evidence did not satisfy Ladd v Marshall (primarily because it could have been obtained with reasonable diligence and contained inconsistent and inherently implausible statements), accordingly it was not admitted; on the evidence before the Master there was no defence with a real prospect of success — the alleged verbal agreement and promissory estoppel claim were contradicted by the written Settlement Agreement and by the lack of pleaded or credible reliance — therefore the Master’s refusal to set aside the default judgment was upheld and the appeal dismissed.

Court Disposition

New Evidence Application dismissed; Appeal against Master Chau’s refusal to set aside Default Judgment dismissed; Default Judgment not set aside; costs awarded to 1st and 2nd Plaintiffs.

Orders

  • New evidence application dated 13 April 2023 dismissed
  • Appeal dated 2 November 2022 against Master Jeffrey Chau’s decision of 21 October 2022 dismissed