KWAN TAT CHUNG v. HO CHEUK KUWN t/a FAT FAI ENGINEERING CO. AND OTHERS

KWAN TAT CHUNG v. HO CHEUK KUWN t/a FAT FAI ENGINEERING CO. AND OTHERS

Because the defendants filed an Acknowledgement of Service containing a Notice of Intention to Defend before the interlocutory judgment was entered, that filing, though late, was effective to preclude entry of default judgment; the interlocutory judgment incorrectly stated no notice had been given and was therefore irregular and must be set aside.

Citation
KWAN TAT CHUNG v. HO CHEUK KUWN t/a FAT FAI ENGINEERING CO. AND OTHERS
Parties
Plaintiff: Kwan Tat Chung; 1st Defendant: Ho Cheuk Kuwn trading as Fat Fai Engineering Company; 2nd Defendant: Winston Air Conditioning & Engineering (Hong Kong) Company Limited; 3rd Defendant: Heng Tat Construction Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2002
Case Number
HCPI381/2002
Procedural Posture
Personal Injuries Action / Appeal From Master Kwan's Order to Dismiss Summons to Set Aside Interlocutory Default Judgment (ruling on Appeal)
Outcome
Appeal allowed; Order of Master Kwan set aside
Legal Topics
Default Judgment, Acknowledgement of Service, Interlocutory Judgment, Setting Aside Irregular Judgment, Leave to Amend Defence, Costs
Source Language
EN
Civil Procedure Personal Injury Default Judgment Acknowledgement of Service Interlocutory Judgment Setting Aside Irregular Judgment Leave to Amend Defence Costs

Case Brief

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Parties

Kwan Tat Chung

Plaintiff

Ho Cheuk Kuwn trading as Fat Fai Engineering Company

1st Defendant

Winston Air Conditioning & Engineering (Hong Kong) Company Limited

2nd Defendant

Heng Tat Construction Company Limited

3rd Defendant

Procedural Posture

Personal Injuries Action / Appeal From Master Kwan's Order to Dismiss Summons to Set Aside Interlocutory Default Judgment (ruling on Appeal)

Legal Issues

  1. 1 Whether an Acknowledgement of Service filed after the prescribed time but before entry of interlocutory judgment is a valid Notice of Intention to Defend
  2. 2 Whether the interlocutory judgment entered was irregular
  3. 3 Whether an irregular interlocutory judgment must be set aside without consideration of the merits of the defence

Ratio Decidendi

Because the defendants filed an Acknowledgement of Service containing a Notice of Intention to Defend before the interlocutory judgment was entered, that filing, though late, was effective to preclude entry of default judgment; the interlocutory judgment incorrectly stated no notice had been given and was therefore irregular and must be set aside.

Court Disposition

Appeal allowed; Order of Master Kwan set aside

Orders

  • The interlocutory judgment entered on 1 June 2002 is set aside.
  • The 2nd and 3rd defendants have leave to amend their defence as per the draft annexed to the summons dated 11 July 2002 and service of same is dispensed with.