JUN FUNG v. TONG WAN SZE (also known as WILSON TONG) AND OTHERS

JUN FUNG v. TONG WAN SZE (also known as WILSON TONG) AND OTHERS

The 2nd defendant failed to provide sufficient or credible reasons for default or evidence contradicting the plaintiff's case and did not show a real prospect of success; the default judgment was regularly obtained and therefore the application to set it aside was dismissed; the contractual jurisdiction clause and joint and several liability principles supported upholding the plaintiff's claim; costs awarded to plaintiff.

Citation
JUN FUNG v. TONG WAN SZE (also known as WILSON TONG) AND OTHERS
Parties
Plaintiff: JUN FUNG; 1st Defendant: TONG WAN SZE (also known as Wilson Tong); 2nd Defendant: SZETO WING FUN, SIMON; 3rd Defendant: 周惠森 (also known as Roman Zhou); 4th Defendant: CHINA WANG MAO INTERNATIONAL HOLDINGS COMPANY LIMTIED; 5th Defendant: 中山市王茅酒業銷售有限公司
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 February 2017
Case Number
HCA1568/2016
Procedural Posture
Civil Action Concerning Investment Agreement, Misrepresentation and Breach of Contract / Application to Set Aside Default Judgment (purported Appeal Under O58 Treated as Application Under O19/o2)
Outcome
Application by 2nd defendant to set aside default judgment dismissed; default judgment upheld; costs awarded to plaintiff.
Legal Topics
Setting Aside Default Judgment, Misrepresentation, Breach of Contract, Forum Selection Clause, Service Out of Jurisdiction, Joint and Several Liability, Costs Assessment
Source Language
EN
Civil Procedure Contract Law Tort (misrepresentation) Costs Setting Aside Default Judgment Misrepresentation Breach of Contract Forum Selection Clause +3 more

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Parties

JUN FUNG

Plaintiff

TONG WAN SZE (also known as Wilson Tong)

1st Defendant

SZETO WING FUN, SIMON

2nd Defendant

周惠森 (also known as Roman Zhou)

3rd Defendant

CHINA WANG MAO INTERNATIONAL HOLDINGS COMPANY LIMTIED

4th Defendant

中山市王茅酒業銷售有限公司

5th Defendant

Procedural Posture

Civil Action Concerning Investment Agreement, Misrepresentation and Breach of Contract / Application to Set Aside Default Judgment (purported Appeal Under O58 Treated as Application Under O19/o2)

Legal Issues

  1. 1 Whether the purported appeal under O58 was the correct procedure or whether the matter should be treated as an application to set aside a default judgment under O19/O2
  2. 2 Whether the default judgment was regularly obtained and should be set aside
  3. 3 Whether the 2nd defendant demonstrated a 'real prospect of success' sufficient to set aside the default judgment

Ratio Decidendi

The 2nd defendant failed to provide sufficient or credible reasons for default or evidence contradicting the plaintiff's case and did not show a real prospect of success; the default judgment was regularly obtained and therefore the application to set it aside was dismissed; the contractual jurisdiction clause and joint and several liability principles supported upholding the plaintiff's claim; costs awarded to plaintiff.

Court Disposition

Application by 2nd defendant to set aside default judgment dismissed; default judgment upheld; costs awarded to plaintiff.

Orders

  • Application by 2nd defendant to set aside the default judgment dismissed.
  • Default Judgment entered on 30 September 2016 against the 2nd defendant for RMB8,000,000 (or HK$ equivalent) with interest is upheld.