LI SHIU KWAN v. TANG CHIU WAH AND ANOTHER

LI SHIU KWAN v. TANG CHIU WAH AND ANOTHER

Service by post in this case could not have been effected within the time fixed by Master Levy because the Statement of Claim was posted on 13 July 2011 and therefore first capable of being served on 14 July 2011; that irregularity justified setting aside the default judgment and writ, and the court properly declined to use its discretion to validate the late service; the Master's orders and directions stand.

Citation
LI SHIU KWAN v. TANG CHIU WAH AND ANOTHER
Parties
Plaintiff: LI SHIU KWAN; 1st Defendant: TANG CHIU WAH; 2nd Defendant: THE OCCUPIERS AND EVERY OTHER PERSONS IN OCCUPATION OF LOT NO.8 IN DEMARCATION DISTRICT NO.135
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 October 2012
Case Number
HCMP687/2011
Procedural Posture
Miscellaneous Proceedings (order 113 of the Rules of the High Court) / Appeal From Master's Decision (rehearing)
Outcome
Appeal dismissed; Master's orders affirmed.
Legal Topics
Service of Process, Service by Post, Setting Aside Default Judgment, Exercise of Judicial Discretion, Costs
Source Language
EN
Civil Procedure Land Law Possession Proceedings Service of Process Service by Post Setting Aside Default Judgment Exercise of Judicial Discretion Costs

Case Brief

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Parties

LI SHIU KWAN

Plaintiff

TANG CHIU WAH

1st Defendant

THE OCCUPIERS AND EVERY OTHER PERSONS IN OCCUPATION OF LOT NO.8 IN DEMARCATION DISTRICT NO.135

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (order 113 of the Rules of the High Court) / Appeal From Master's Decision (rehearing)

Legal Issues

  1. 1 Whether the Statement of Claim was validly served within the time ordered by Master Levy
  2. 2 Whether the Master was correct to set aside the default judgment and writ of possession
  3. 3 Whether section 8 of the Interpretation and General Clauses Ordinance or White Book commentary renders service effective on date of posting

Ratio Decidendi

Service by post in this case could not have been effected within the time fixed by Master Levy because the Statement of Claim was posted on 13 July 2011 and therefore first capable of being served on 14 July 2011; that irregularity justified setting aside the default judgment and writ, and the court properly declined to use its discretion to validate the late service; the Master's orders and directions stand.

Court Disposition

Appeal dismissed; Master's orders affirmed.

Orders

  • Appeal dismissed with costs to the defendant.
  • Master Ho's order setting aside the default judgment dated 15 November 2011 and the writ of possession dated 13 January 2012 is affirmed.