MAXCOLM FINANCE LTD 對 TONG LO MING及另二人

MAXCOLM FINANCE LTD 對 TONG LO MING及另二人

The court found service was properly effected by posting a sealed copy into the mailbox at the defendant's usual or last known address, the third defendant failed to provide persuasive evidence to rebut the presumption of service and did not show a real prospect of success on the merits (including that tenants' rights could defeat the plaintiff's earlier registered charge); accordingly the summons to set aside the routine judgment is dismissed and the original orders stand.

Citation
[2024] HKDC 656
Parties
Plaintiff: MAXCOLM FINANCE LIMITED; First Defendant: TONG LO MING; Second Defendant: CHOW LAI SHAN REGINA; Third Defendant: LEUNG TIN CHEUNG
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
30 April 2024
Case Number
DCMP955/2023
Procedural Posture
District Court Miscellaneous Application to Set Aside Judgment and Orders (possession and Sale) / Hearing on Summons to Set Aside Judgment (interlocutory Hearing)
Outcome
Summons filed 29 November 2023 to set aside the judgment dismissed; earlier possession and sale orders upheld; suspension of execution lifted.
Legal Topics
Service of Process, Setting Aside Judgment, Order for Sale Under Partition Ordinance (cap.352), Registered Charge Priority, Costs
Source Language
CH
Civil Procedure Property Law Land Registration Tenancy Law Service of Process Setting Aside Judgment Order for Sale Under Partition Ordinance (cap.352) Registered Charge Priority +1 more

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Parties

MAXCOLM FINANCE LIMITED

Plaintiff

TONG LO MING

First Defendant

CHOW LAI SHAN REGINA

Second Defendant

LEUNG TIN CHEUNG

Third Defendant

Procedural Posture

District Court Miscellaneous Application to Set Aside Judgment and Orders (possession and Sale) / Hearing on Summons to Set Aside Judgment (interlocutory Hearing)

Legal Issues

  1. 1 Whether the originating process was validly served on the third defendant
  2. 2 Whether the third defendant discharged burden to prove non-receipt of process
  3. 3 Whether the third defendant has a real prospect of success in a defence sufficient to set aside a routine judgment

Ratio Decidendi

The court found service was properly effected by posting a sealed copy into the mailbox at the defendant's usual or last known address, the third defendant failed to provide persuasive evidence to rebut the presumption of service and did not show a real prospect of success on the merits (including that tenants' rights could defeat the plaintiff's earlier registered charge); accordingly the summons to set aside the routine judgment is dismissed and the original orders stand.

Court Disposition

Summons filed 29 November 2023 to set aside the judgment dismissed; earlier possession and sale orders upheld; suspension of execution lifted.

Orders

  • The summons filed by the third defendant on 29 November 2023 is dismissed.
  • The suspension of execution ordered at paragraph 10 of the Registry Officer's order dated 1 December 2023 is revoked with effect from today.