HEITKAMP & THUMANN KG v. OUMEISI LTD AND OTHERS

HEITKAMP & THUMANN KG v. OUMEISI LTD AND OTHERS

The default judgment was irregular because it was entered for an excessive sum; therefore it must be set aside without consideration of the merits of the defence, but the court may impose just terms. The plaintiff's application to amend the default judgment and to obtain an interlocutory judgment was dismissed. As a term to set aside the judgment the 9th defendant must pay US$350,000 into court; the injunction was varied solely to permit that payment; appeal dismissed; garnishee order to be discharged upon setting aside; costs ordered nisi in favour of the 9th defendant as specified.

Citation
HEITKAMP & THUMANN KG v. OUMEISI LTD AND OTHERS
Parties
Plaintiff: Heitkamp & Thumann KG; 1st Defendant: Oumeisi Limited (歐美斯有限公司); 2nd Defendant: Bentong Trade Limited (本通貿易有限公司); 3rd Defendant: Pengshunyi Trade Limited (鵬順意貿易有限公司); 4th Defendant: Haiyun Trade Limited (海雲貿易有限公司); 5th Defendant: Huawenchang Hongkong Trade Limited (華文昌香港貿易有限公司); 6th Defendant: Mao Hong Da Trading Co Limited (茂宏達貿易有限公司); 7th Defendant: Welly Smart Trading Limited (益俊貿易有限公司); 8th Defendant: Kailaite Technology Co Limited (凱萊特科技有限公司); 9th Defendant: Wang Pat (HK) Limited (宏朋(香港)有限公司); 10th Defendant: Xi Ju Trade Limited (喜居貿易有限公司); 11th Defendant: Hongkong Jinlian Trade Co Limited (香港錦聯貿易公司); 12th Defendant: Mlina International Group Limited; 13th Defendant: Godsend Industry HK Limited (歐盛實業香港有限公司)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 October 2017
Case Number
HCA2006/2016
Procedural Posture
Civil Action Concerning Default Judgment, Injunctions and Garnishee Proceedings / Decision by Deputy High Court Judge on Appeal From Master (judge in Chambers)
Outcome
Appeal dismissed. Default judgment set aside upon payment of US$350,000 into court; application to amend default judgment dismissed; injunction varied to permit payment; garnishee order to be discharged upon setting aside; costs ordered nisi in favour of 9th defendant.
Legal Topics
Setting Aside Default Judgment, Amendment of Judgment, Conditions on Setting Aside, Interlocutory Injunction, Costs Orders, Traceability and Bona Fide Purchaser Defence
Source Language
EN
Civil Procedure Injunctions Restitution/unjust Enrichment Garnishee Proceedings Appeal Setting Aside Default Judgment Amendment of Judgment Conditions on Setting Aside +3 more

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Parties

Heitkamp & Thumann KG

Plaintiff

Oumeisi Limited (歐美斯有限公司)

1st Defendant

Bentong Trade Limited (本通貿易有限公司)

2nd Defendant

Pengshunyi Trade Limited (鵬順意貿易有限公司)

3rd Defendant

Haiyun Trade Limited (海雲貿易有限公司)

4th Defendant

Huawenchang Hongkong Trade Limited (華文昌香港貿易有限公司)

5th Defendant

Mao Hong Da Trading Co Limited (茂宏達貿易有限公司)

6th Defendant

Welly Smart Trading Limited (益俊貿易有限公司)

7th Defendant

Kailaite Technology Co Limited (凱萊特科技有限公司)

8th Defendant

Wang Pat (HK) Limited (宏朋(香港)有限公司)

9th Defendant

Xi Ju Trade Limited (喜居貿易有限公司)

10th Defendant

Hongkong Jinlian Trade Co Limited (香港錦聯貿易公司)

11th Defendant

Mlina International Group Limited

12th Defendant

Godsend Industry HK Limited (歐盛實業香港有限公司)

13th Defendant

Procedural Posture

Civil Action Concerning Default Judgment, Injunctions and Garnishee Proceedings / Decision by Deputy High Court Judge on Appeal From Master (judge in Chambers)

Legal Issues

  1. 1 Whether the default judgment was regular or irregular
  2. 2 Whether an irregular default judgment can be amended to a lesser sum instead of being set aside
  3. 3 Whether the court should consider the merits of the defence when setting aside or amending an irregular default judgment

Ratio Decidendi

The default judgment was irregular because it was entered for an excessive sum; therefore it must be set aside without consideration of the merits of the defence, but the court may impose just terms. The plaintiff's application to amend the default judgment and to obtain an interlocutory judgment was dismissed. As a term to set aside the judgment the 9th defendant must pay US$350,000 into court; the injunction was varied solely to permit that payment; appeal dismissed; garnishee order to be discharged upon setting aside; costs ordered nisi in favour of the 9th defendant as specified.

Court Disposition

Appeal dismissed. Default judgment set aside upon payment of US$350,000 into court; application to amend default judgment dismissed; injunction varied to permit payment; garnishee order to be discharged upon setting aside; costs ordered nisi in favour of 9th defendant.

Orders

  • Upon US$350,000 being paid into court by the 9th defendant the default judgment is set aside
  • Injunction of 5 August 2016 (continued 12 Aug 2016 and 26 May 2017) varied solely to permit the 9th defendant to use assets to pay US$350,000 into court