HSIEH MING YIN v. AU SIN YEE also known as AU SIN YEE SHIRLEY

HSIEH MING YIN v. AU SIN YEE also known as AU SIN YEE SHIRLEY

The registrar erred in requiring the defendant to set aside the Judgment before discharging the garnishee order; the garnishee proceedings were unjustified because the plaintiff held a rental deposit sufficient to satisfy the Alleged Debt and the defendant had effectively extinguished the debt by the time of the second hearing; accordingly the Order Absolute and Order Nisi are set aside and costs are ordered against the plaintiff on an indemnity basis.

Citation
HSIEH MING YIN v. AU SIN YEE also known as AU SIN YEE SHIRLEY
Parties
Judgment Creditor: HSIEH MING YIN; Judgment Debtor: AU SIN YEE (also known as AU SIN YEE SHIRLEY); Garnishee: THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 May 2015
Case Number
DCCJ2656/2014
Procedural Posture
District Court Civil Garnishee Proceedings (appeal) / Appeal to Judge in Chambers
Outcome
Appeal allowed.
Legal Topics
Garnishee Order, Default Judgment, Rental Deposit, Consent Order, Setting Aside Judgment, Proportionality Under Civil Justice Reform
Source Language
EN
Civil Procedure Garnishment Landlord and Tenant Law Costs Law Garnishee Order Default Judgment Rental Deposit Consent Order +2 more

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Parties

HSIEH MING YIN

Judgment Creditor

AU SIN YEE (also known as AU SIN YEE SHIRLEY)

Judgment Debtor

THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED

Garnishee

Procedural Posture

District Court Civil Garnishee Proceedings (appeal) / Appeal to Judge in Chambers

Legal Issues

  1. 1 Whether setting aside a judgment is a prerequisite to discharging a garnishee order
  2. 2 Whether the rental deposit should have been applied to satisfy the debt instead of pursuing garnishee proceedings
  3. 3 Whether the garnishee application should have been brought or continued given the circumstances

Ratio Decidendi

The registrar erred in requiring the defendant to set aside the Judgment before discharging the garnishee order; the garnishee proceedings were unjustified because the plaintiff held a rental deposit sufficient to satisfy the Alleged Debt and the defendant had effectively extinguished the debt by the time of the second hearing; accordingly the Order Absolute and Order Nisi are set aside and costs are ordered against the plaintiff on an indemnity basis.

Court Disposition

Appeal allowed.

Orders

  • Discharge the Garnishee Order Absolute made by the registrar on 16 December 2014.
  • Set aside the Order Nisi made by the master on 10 September 2014.