M & R MARKING SYSTEMS, INC. v. TSE MEE SHUEN WILSON AND OTHERS

M & R MARKING SYSTEMS, INC. v. TSE MEE SHUEN WILSON AND OTHERS

The court held the 2nd Summons was an abuse of process and beyond jurisdiction because it sought to relitigate the same issue resolved by the earlier summons; alternatively, even on the merits the default judgment was valid as effective service was proved and the defendant had notice; leave to serve the Notice of Appeal out of time was granted due to solicitor oversight but the appeal was dismissed and costs awarded (2nd Summons costs party-party; appeal costs on indemnity basis payable by 1st defendant).

Citation
M & R MARKING SYSTEMS, INC. v. TSE MEE SHUEN WILSON AND OTHERS
Parties
Plaintiff: M & R MARKING SYSTEMS, INC.; 1st Defendant: TSE MEE SHUEN WILSON aka WILSON TSE; 2nd Defendant: CLAIMCHOP CO. LTD; 3rd Defendant: FEN HIN CHON ENTERPRISE LTD; 4th Defendant: TOP STAMP ENTERPRISES LTD formerly known as HOPKO LTD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 December 2001
Case Number
HCA1598/2001
Procedural Posture
Enforcement of Foreign (us) Judgment for Patent Infringement; Application to Set Aside Default Judgment; Appeal / Appeal From Master's Order Dismissing Summons to Set Aside Default Judgment; Summons for Leave to Serve Notice of Appeal Out of Time
Outcome
Appeal dismissed; leave granted to serve Notice of Appeal out of time.
Legal Topics
Default Judgment, Substituted Service, Set Aside Judgment, Res Judicata, Abuse of Process, Jurisdiction to Rehear, Extension of Time to Serve Appeal, Costs (indemnity Vs Party Party)
Source Language
EN
Civil Procedure Enforcement of Foreign Judgment Intellectual Property (patent) Civil Litigation Costs Default Judgment Substituted Service Set Aside Judgment Res Judicata +4 more

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Parties

M & R MARKING SYSTEMS, INC.

Plaintiff

TSE MEE SHUEN WILSON aka WILSON TSE

1st Defendant

CLAIMCHOP CO. LTD

2nd Defendant

FEN HIN CHON ENTERPRISE LTD

3rd Defendant

TOP STAMP ENTERPRISES LTD formerly known as HOPKO LTD

4th Defendant

Procedural Posture

Enforcement of Foreign (us) Judgment for Patent Infringement; Application to Set Aside Default Judgment; Appeal / Appeal From Master's Order Dismissing Summons to Set Aside Default Judgment; Summons for Leave to Serve Notice of Appeal Out of Time

Legal Issues

  1. 1 Whether the second summons to set aside the default judgment is an abuse of process/res judicata
  2. 2 Whether the court has jurisdiction to entertain a second summons after the first was dismissed
  3. 3 Whether the default judgment was irregular/premature because of alleged late service

Ratio Decidendi

The court held the 2nd Summons was an abuse of process and beyond jurisdiction because it sought to relitigate the same issue resolved by the earlier summons; alternatively, even on the merits the default judgment was valid as effective service was proved and the defendant had notice; leave to serve the Notice of Appeal out of time was granted due to solicitor oversight but the appeal was dismissed and costs awarded (2nd Summons costs party-party; appeal costs on indemnity basis payable by 1st defendant).

Court Disposition

Appeal dismissed; leave granted to serve Notice of Appeal out of time.

Orders

  • Leave granted to the 1st defendant to serve the Notice of Appeal out of time
  • Appeal dismissed