LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND ANOTHER

LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND ANOTHER

The court held the entry of judgment was irregular and must be set aside because (1) the claimed sum was not a liquidated demand but required accounting and inquiry, so judgment for a specific figure was improper; and (2) the unless order was a time order and the affirmation filed on 20 November 2001 constituted at least substantial compliance such that the plaintiffs should have sought relief inter partes rather than entering ex parte judgment. The 2nd defendant nonetheless had failed personally to file an affidavit but her failure was not contumelious and time was extended for compliance.

Citation
LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND ANOTHER
Parties
1st Plaintiff (hca 18950/1998); 1st Defendant (hca 18995/1998): LAU CHI WANG JAMES; 2nd Plaintiff (hca 18950/1998); 2nd Defendant (hca 18995/1998): LAU CHI MING; 3rd Plaintiff (hca 18950/1998); 3rd Defendant (hca 18995/1998): FONG ON CONSTRUCTION & ENGINEERING COMPANY LIMITED; 1st Defendant (hca 18950/1998); 1st Plaintiff (hca 18995/1998): IP FOOK CHUEN THOMAS; 2nd Defendant (hca 18950/1998); 2nd Plaintiff (hca 18995/1998): RITA FU
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 December 2002
Case Number
HCA18950/1998
Procedural Posture
Civil Appeal / Judgment on Appeal (application to Set Aside Default Judgment)
Outcome
Appeal allowed in part. Master B. Kwan\'s order dismissing the application to set aside judgment set aside; judgment dated 30 November 2001 (sealed 21 January 2002) set aside. Time extended for 2nd defendant to comply with discovery; conditional unless order made against 2nd defendant. Costs order nisi made.
Legal Topics
Joint Venture, Partnership Dispute, Specific Discovery, Unless Order, Default Judgment, Setting Aside Judgment, Accounts and Inquiries, Peremptory Orders, Verification by Affidavit, Irregular Judgment
Source Language
EN
Partnership Contract Civil Procedure Company Law Equity Discovery Joint Venture Partnership Dispute +8 more

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Parties

LAU CHI WANG JAMES

1st Plaintiff (hca 18950/1998); 1st Defendant (hca 18995/1998)

LAU CHI MING

2nd Plaintiff (hca 18950/1998); 2nd Defendant (hca 18995/1998)

FONG ON CONSTRUCTION & ENGINEERING COMPANY LIMITED

3rd Plaintiff (hca 18950/1998); 3rd Defendant (hca 18995/1998)

IP FOOK CHUEN THOMAS

1st Defendant (hca 18950/1998); 1st Plaintiff (hca 18995/1998)

RITA FU

2nd Defendant (hca 18950/1998); 2nd Plaintiff (hca 18995/1998)

Procedural Posture

Civil Appeal / Judgment on Appeal (application to Set Aside Default Judgment)

Legal Issues

  1. 1 Whether a partnership/joint venture existed and parties\' entitlements
  2. 2 Whether the judgment for HKD 24,641,460.63 was irregular because the claim was unliquidated
  3. 3 Whether the affirmation filed 20 November 2001 constituted compliance with the unless order

Ratio Decidendi

The court held the entry of judgment was irregular and must be set aside because (1) the claimed sum was not a liquidated demand but required accounting and inquiry, so judgment for a specific figure was improper; and (2) the unless order was a time order and the affirmation filed on 20 November 2001 constituted at least substantial compliance such that the plaintiffs should have sought relief inter partes rather than entering ex parte judgment. The 2nd defendant nonetheless had failed personally to file an affidavit but her failure was not contumelious and time was extended for compliance.

Court Disposition

Appeal allowed in part. Master B. Kwan\'s order dismissing the application to set aside judgment set aside; judgment dated 30 November 2001 (sealed 21 January 2002) set aside. Time extended for 2nd defendant to comply with discovery; conditional unless order made against 2nd defendant. Costs order nisi made.

Orders

  • The appeal is allowed and the order of Master B. Kwan dated 12 September 2002 is set aside.
  • The judgment dated 30 November 2001 sealed and filed on 21 January 2002 is set aside.