KAILAY ENGINEERING CO (HK) LTD v. SIL VER FAITH HOLDINGS LTD AND OTHERS

KAILAY ENGINEERING CO (HK) LTD v. SIL VER FAITH HOLDINGS LTD AND OTHERS

The default judgment was set aside because the defendant demonstrated a real prospect of success: the evidence showed the plaintiff tendered and offered to BGC (the employer) and the 12 July 1994 letter could only be acceptance of that offer or operate subject to the tender clause which vested rights in the selected...

Source-derived case information.

Citation
KAILAY ENGINEERING CO (HK) LTD v. SIL VER FAITH HOLDINGS LTD AND OTHERS
Parties
Plaintiff: KAILAY ENGINEERING COMPANY (HK) LIMITED; First Defendant: SIL VER FAITH HOLDINGS LIMITED; Second Defendant: SUM TAT PILING AND ENGINEERING LIMITED; Third Defendant: CHINA EXPAND CONSTRUCTION LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 1998
Case Number
HCCT14/1998
Procedural Posture
Civil Contract (construction) / Interlocutory Application to Set Aside Default Judgment; Strike Out Applications
Outcome
Default judgment set aside; partial affidavit/exhibit struck out per separate summons; leave to plaintiff to apply to amend statement of claim; procedural timetable and conditional liberty to strike out preserved; order nisi on costs in favour of first defendant on unopposed basis with plaintiff to pay costs of...
Legal Topics
Default Judgment, Setting Aside Judgment, Service of Process, Agency and Authority, Tender and Acceptance, Nominated Sub Contract, Strike Out, Leave to Amend, Costs
Source Language
en
Contract Civil Procedure Construction Law Company Law Default Judgment Setting Aside Judgment Service of Process Agency and Authority +5 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 2 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

KAILAY ENGINEERING COMPANY (HK) LIMITED

Plaintiff

SIL VER FAITH HOLDINGS LIMITED

First Defendant

SUM TAT PILING AND ENGINEERING LIMITED

Second Defendant

CHINA EXPAND CONSTRUCTION LIMITED

Third Defendant

Procedural Posture

Civil Contract (construction) / Interlocutory Application to Set Aside Default Judgment; Strike Out Applications

Legal Issues

  1. 1 Whether the default judgment was irregular or should be set aside under Order 13 r9
  2. 2 Whether the first defendant was the employer or was acting as agent/project manager for the true employer (BGC)
  3. 3 Whether the plaintiff contracted with BGC or with the first defendant (offer and acceptance issue)

Ratio Decidendi

The default judgment was set aside because the defendant demonstrated a real prospect of success: the evidence showed the plaintiff tendered and offered to BGC (the employer) and the 12 July 1994 letter could only be acceptance of that offer or operate subject to the tender clause which vested rights in the selected general contractor; accordingly the plaintiff could not succeed on its pleaded case against the first defendant and the circumstances warranted setting aside the default judgment under Order 13 r9.

Court Disposition

Default judgment set aside; partial affidavit/exhibit struck out per separate summons; leave to plaintiff to apply to amend statement of claim; procedural timetable and conditional liberty to strike out preserved; order nisi on costs in favour of first defendant on unopposed basis with plaintiff to pay costs of...

Orders

  • Default judgment dated 17 February 1998 set aside
  • Order granted in terms of the 3 March 1998 summons to strike out part of an affidavit and an exhibit filed by the plaintiff