E-TRADE SECURITIES LLC v. CEDALIAN CARE SERVICES CONSULTANTS LTD AND OTHERS

E-TRADE SECURITIES LLC v. CEDALIAN CARE SERVICES CONSULTANTS LTD AND OTHERS

Default judgment was set aside because the 4th defendant provided affidavit evidence showing an arguable defence with a real prospect of success and an explanation for delay which, when weighed against the ability to compensate prejudice by payment into court and costs, justified setting aside; relief was conditional on payment into court of HK$466,500 plus HK$10,000 interest, discharge of the Mareva injunction, and directions to file a defence within 14 days.

Citation
E-TRADE SECURITIES LLC v. CEDALIAN CARE SERVICES CONSULTANTS LTD AND OTHERS
Parties
Plaintiff: E*TRADE SECURITIES LLC; 1st Defendant: CEDALIAN CARE SERVICES CONSULTANTS LIMITED; 2nd Defendant: HAVI INDUSTRIAL (H.K.) CO., LIMITED; 3rd Defendant: HONG KONG XIE YING TRADING CO., LIMITED; 4th Defendant: KWOK WAI ELECTRONIC LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 March 2017
Case Number
HCA2312/2016
Procedural Posture
Fraud / Recovery of Funds / Application to Set Aside Default Judgment Following Mareva Injunction; Interlocutory Directions for Defence
Outcome
Application to set aside default judgment allowed on conditions
Legal Topics
Default Judgment, Setting Aside, Mareva Injunction, Ministerial Receipt, Bona Fide Purchaser for Value, Service and Delay, Costs
Source Language
EN
Civil Procedure Fraud Injunctions Banking and Commercial Law Default Judgment Setting Aside Mareva Injunction Ministerial Receipt +3 more

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Parties

E*TRADE SECURITIES LLC

Plaintiff

CEDALIAN CARE SERVICES CONSULTANTS LIMITED

1st Defendant

HAVI INDUSTRIAL (H.K.) CO., LIMITED

2nd Defendant

HONG KONG XIE YING TRADING CO., LIMITED

3rd Defendant

KWOK WAI ELECTRONIC LIMITED

4th Defendant

Procedural Posture

Fraud / Recovery of Funds / Application to Set Aside Default Judgment Following Mareva Injunction; Interlocutory Directions for Defence

Legal Issues

  1. 1 Whether the 4th defendant demonstrated a defence with a real prospect of success sufficient to set aside default judgment
  2. 2 Whether the explanation for delay in defending was acceptable to extend time to file a defence
  3. 3 Whether payment into court would ameliorate prejudice and justify setting aside judgment and discharging the Mareva injunction

Ratio Decidendi

Default judgment was set aside because the 4th defendant provided affidavit evidence showing an arguable defence with a real prospect of success and an explanation for delay which, when weighed against the ability to compensate prejudice by payment into court and costs, justified setting aside; relief was conditional on payment into court of HK$466,500 plus HK$10,000 interest, discharge of the Mareva injunction, and directions to file a defence within 14 days.

Court Disposition

Application to set aside default judgment allowed on conditions

Orders

  • Default judgment against the 4th defendant set aside conditional on payment into court of HK$466,500 plus interest of HK$10,000
  • Payment of HK$466,500 and HK$10,000 interest to be brought into court by the 4th defendant