IP MAN KEI v. LIU WAI HONG AND ANOTHER

IP MAN KEI v. LIU WAI HONG AND ANOTHER

Although the interlocutory judgment was legally regular because the 1st defendant had filed an acknowledgement of service stating he would not defend and no timely amendment was filed, the court will exercise its unconditional discretion to set aside a regular default judgment where necessary to avoid injustice and where the defendant demonstrates a real prospect of success; applying that test the 1st defendant showed sufficient credible defence (causation and contributory issues) so the interlocutory judgment was set aside, but costs were ordered to the plaintiff because of the defendant's procedural failures.

Citation
IP MAN KEI v. LIU WAI HONG AND ANOTHER
Parties
Plaintiff: IP Man Kei; 1st Defendant: Liu Wai Hong; 2nd Defendant: Yeung Wai Lun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 March 2007
Case Number
HCPI901/2006
Procedural Posture
Personal Injuries Action / Appeal by Rehearing (cross Appeal on Costs)
Outcome
Appeal dismissed except as to costs; interlocutory judgment against 1st defendant set aside; Registrar's order setting aside judgment upheld with modification of costs order
Legal Topics
Setting Aside Default/interlocutory Judgment, Acknowledgement of Service (o.20 R.2 Rhc), Extension of Time to File Defence, Costs Orders
Source Language
EN
Civil Procedure Personal Injury Negligence Evidence Setting Aside Default/interlocutory Judgment Acknowledgement of Service (o.20 R.2 Rhc) Extension of Time to File Defence Costs Orders

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Parties

IP Man Kei

Plaintiff

Liu Wai Hong

1st Defendant

Yeung Wai Lun

2nd Defendant

Procedural Posture

Personal Injuries Action / Appeal by Rehearing (cross Appeal on Costs)

Legal Issues

  1. 1 Whether interlocutory judgment entered against the 1st defendant was irregular
  2. 2 Whether the court should exercise its discretion to set aside a regular judgment
  3. 3 Whether the 1st defendant demonstrated a real prospect of success on defence

Ratio Decidendi

Although the interlocutory judgment was legally regular because the 1st defendant had filed an acknowledgement of service stating he would not defend and no timely amendment was filed, the court will exercise its unconditional discretion to set aside a regular default judgment where necessary to avoid injustice and where the defendant demonstrates a real prospect of success; applying that test the 1st defendant showed sufficient credible defence (causation and contributory issues) so the interlocutory judgment was set aside, but costs were ordered to the plaintiff because of the defendant's procedural failures.

Court Disposition

Appeal dismissed except as to costs; interlocutory judgment against 1st defendant set aside; Registrar's order setting aside judgment upheld with modification of costs order

Orders

  • Interlocutory judgment entered against the 1st defendant on 17 November 2006 set aside
  • Registrar's order of 21 February 2007 setting aside judgment upheld