FAT KEE STEVEDORES LTD v. DELMAS HONG KONG LTD AND ANOTHER

FAT KEE STEVEDORES LTD v. DELMAS HONG KONG LTD AND ANOTHER

The interlocutory judgment entered 12 September 2008 was set aside because the plaintiff demonstrated a meritorious defence supported by authority that the 1st defendant, if acting as agent for a disclosed principal, lacked capacity to sue on the principal's behalf; the application for service on the agent under Order 10(2) was dismissed because the plaintiff failed to demonstrate substantial time or cost savings to justify departing from Order 11; costs were apportioned as costs in the cause for the summons to set aside the judgment, and other costs orders were made accordingly.

Citation
FAT KEE STEVEDORES LTD v. DELMAS HONG KONG LTD AND ANOTHER
Parties
Plaintiff: Fat Kee Stevedores Limited; 1st Defendant: Delmas Hong Kong Limited; 2nd Defendant: Marseille Fret S.A.
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 January 2009
Case Number
DCCJ1658/2008
Procedural Posture
Civil Action (district Court) / Decision on Summons (interlocutory Application to Set Aside Judgment)
Outcome
Interlocutory judgment of 12 September 2008 set aside; application for service on agent under Order 10(2) dismissed; other relief in summons items 1,2,4 and 6 granted; costs orders made.
Legal Topics
Setting Aside Judgment, Agent/principal Capacity to Sue, Service Out of Jurisdiction Vs Service on Agent, Order 10 RDC, Order 11 RDC, Allocation of Costs
Source Language
EN
Civil Procedure Agency Law Shipping Law Jurisdictional Service Costs Setting Aside Judgment Agent/principal Capacity to Sue Service Out of Jurisdiction Vs Service on Agent +3 more

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Parties

Fat Kee Stevedores Limited

Plaintiff

Delmas Hong Kong Limited

1st Defendant

Marseille Fret S.A.

2nd Defendant

Procedural Posture

Civil Action (district Court) / Decision on Summons (interlocutory Application to Set Aside Judgment)

Legal Issues

  1. 1 Whether interlocutory judgment entered 12 September 2008 should be set aside
  2. 2 Whether the 1st defendant, as alleged agent of Delmas SAS, had capacity to bring a counterclaim
  3. 3 Whether service on the agent under Order 10 rule 2 RDC should be permitted instead of service out of the jurisdiction under Order 11 RDC

Ratio Decidendi

The interlocutory judgment entered 12 September 2008 was set aside because the plaintiff demonstrated a meritorious defence supported by authority that the 1st defendant, if acting as agent for a disclosed principal, lacked capacity to sue on the principal's behalf; the application for service on the agent under Order 10(2) was dismissed because the plaintiff failed to demonstrate substantial time or cost savings to justify departing from Order 11; costs were apportioned as costs in the cause for the summons to set aside the judgment, and other costs orders were made accordingly.

Court Disposition

Interlocutory judgment of 12 September 2008 set aside; application for service on agent under Order 10(2) dismissed; other relief in summons items 1,2,4 and 6 granted; costs orders made.

Orders

  • Judgment entered against the plaintiff on 12 September 2008 set aside.
  • Costs of the summons filed 17 September 2008 to be costs in the cause of the counterclaim, with certificate for counsel.