CHU KIN CHUNG AND ANOTHER v. HUNG HAU YAN

CHU KIN CHUNG AND ANOTHER v. HUNG HAU YAN

Considering the overall justice of the case and relevant factors, the court exercised its discretion to extend time for filing and service of the defence for a short period (3 days) on an unless basis, allowed withdrawal of the earlier premature default judgment summons, dismissed the plaintiffs' subsequent default judgment summons insofar as it sought judgment, and directed conditional entry of judgment if the defence was not filed by the extended deadline; costs were apportioned with no order for costs on the default summonses and costs for the time extension application awarded to the plaintiffs.

Citation
[2021] HKDC 483
Parties
1st Plaintiff: Chu Kin Chung; 2nd Plaintiff: Chu Pui Man; Defendant: Hung Hau Yan
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 April 2021
Case Number
DCCJ1130/2020
Procedural Posture
Civil Action (property/neighbourhood Water Leakage Dispute) / Interlocutory Applications: Default Judgment Applications and Application for Extension of Time to File Defence
Outcome
Time extended for a short period; leave to withdraw the first default judgment summons granted; second default judgment summons dismissed; conditional default judgment if defence not filed by deadline; costs allocated as directed.
Legal Topics
Default Judgment, Extension of Time, Service of Process, Injunctions, Repairs and Remedial Costs, Costs
Source Language
EN
Civil Procedure Property Law Tort (nuisance/occupier Liability) Legal Aid Default Judgment Extension of Time Service of Process Injunctions +2 more

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Parties

Chu Kin Chung

1st Plaintiff

Chu Pui Man

2nd Plaintiff

Hung Hau Yan

Defendant

Procedural Posture

Civil Action (property/neighbourhood Water Leakage Dispute) / Interlocutory Applications: Default Judgment Applications and Application for Extension of Time to File Defence

Legal Issues

  1. 1 Whether the court had jurisdiction to enter default judgment where the application was made before expiry of the period to file a defence
  2. 2 Whether the defendant should be granted an extension of time to file and serve a defence under RDC Order 3, rule 5
  3. 3 Whether the plaintiffs could withdraw the earlier default judgment summons and obtain default judgment subsequently

Ratio Decidendi

Considering the overall justice of the case and relevant factors, the court exercised its discretion to extend time for filing and service of the defence for a short period (3 days) on an unless basis, allowed withdrawal of the earlier premature default judgment summons, dismissed the plaintiffs' subsequent default judgment summons insofar as it sought judgment, and directed conditional entry of judgment if the defence was not filed by the extended deadline; costs were apportioned with no order for costs on the default summonses and costs for the time extension application awarded to the plaintiffs.

Court Disposition

Time extended for a short period; leave to withdraw the first default judgment summons granted; second default judgment summons dismissed; conditional default judgment if defence not filed by deadline; costs allocated as directed.

Orders

  • Leave granted to the plaintiffs to withdraw the 1st Default Judgment Summons
  • Unless the defendant files and serves her defence by 4:00 pm on 22 April 2021, judgment be entered for the plaintiffs with costs