NG NIM CHUNG, DECEASED AND ANOTHER v. NG WING MAN TERRY

NG NIM CHUNG, DECEASED AND ANOTHER v. NG WING MAN TERRY

The court exercised its discretion under O35 r2 to set aside the judgment because, on balance, the defendant's further explanations—though imperfect and late—warranted a second chance; however, finality and prejudice to plaintiffs required conditions: defendant must pay plaintiffs' costs and provide security of HK$400,000 into court pending taxation, failing which the order to set aside will lapse and the judgment will stand.

Citation
[2022] HKCFI 673
Parties
1st Plaintiff: NG NIM CHUNG, deceased; 2nd Plaintiff: LEUNG WAI PING (in her capacity as the Administratrix of the estate of NG NIM CHUNG, deceased, and in her personal capacity); Defendant: NG WING MAN TERRY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 March 2022
Case Number
HCA2221/2016
Procedural Posture
Civil Action Trial and Application to Set Aside Judgment / Application Under Order 35 Rule 2 to Set Aside Judgment Entered After Trial in Defendant's Absence
Outcome
Application allowed; judgment set aside subject to conditions
Legal Topics
Setting Aside Judgment, Trial in Absence, Adjournment, Admission of Fresh Evidence, Costs and Security for Costs
Source Language
EN
Civil Procedure Civil Litigation Evidence Setting Aside Judgment Trial in Absence Adjournment Admission of Fresh Evidence Costs and Security for Costs

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Parties

NG NIM CHUNG, deceased

1st Plaintiff

LEUNG WAI PING (in her capacity as the Administratrix of the estate of NG NIM CHUNG, deceased, and in her personal capacity)

2nd Plaintiff

NG WING MAN TERRY

Defendant

Procedural Posture

Civil Action Trial and Application to Set Aside Judgment / Application Under Order 35 Rule 2 to Set Aside Judgment Entered After Trial in Defendant's Absence

Legal Issues

  1. 1 Whether the judgment entered after trial in the defendant's absence should be set aside under O35 r2
  2. 2 Whether the defendant adequately explained and evidenced his inability to attend trial
  3. 3 Whether fresh evidence filed after judgment should be admitted on an application to set aside

Ratio Decidendi

The court exercised its discretion under O35 r2 to set aside the judgment because, on balance, the defendant's further explanations—though imperfect and late—warranted a second chance; however, finality and prejudice to plaintiffs required conditions: defendant must pay plaintiffs' costs and provide security of HK$400,000 into court pending taxation, failing which the order to set aside will lapse and the judgment will stand.

Court Disposition

Application allowed; judgment set aside subject to conditions

Orders

  • Judgment set aside on condition that defendant pays into court HK$400,000 on account of the plaintiffs' costs pending taxation
  • Defendant to bear and pay plaintiffs' costs of and occasioned by (i) the adjournment application on 16 August 2021, (ii) the first day of trial on 16 August 2021 wasted, and (iii) the present application; such costs to be taxed forthwith if not agreed, with plaintiffs' own costs taxed in accordance with legal aid...