AU CHOW ELECTRICAL CO LTD v. CHERISON ENGINEERING LTD AND ANOTHER

AU CHOW ELECTRICAL CO LTD v. CHERISON ENGINEERING LTD AND ANOTHER

The court held the default judgment was properly obtained but contained an obvious error of overlap resulting from the pleading; under Order 20 r 11 and Order 19 r 9 the court had power to amend the judgment to correct the error and should do so; the defendants failed to show a real prospect of success sufficient to set aside the regular judgment, therefore the amendment was allowed and the appeal dismissed.

Citation
AU CHOW ELECTRICAL CO LTD v. CHERISON ENGINEERING LTD AND ANOTHER
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 June 2009
Case Number
HCA2736/2008
Procedural Posture
Civil Appeal and Amendment Application / Appeal Against Master's Dismissal of Setting Aside Application and Interlocutory Summons to Amend Default Judgment
Outcome
Appeal dismissed; plaintiff's summons to amend default judgment allowed; application to set aside default judgment dismissed.
Legal Topics
Default Judgment, Setting Aside, Amendment of Judgment, Slip Rule, Overlap/double Claim, Costs
Source Language
EN
Civil Procedure Contract Company Law Default Judgment Setting Aside Amendment of Judgment Slip Rule Overlap/double Claim +1 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Civil Appeal and Amendment Application / Appeal Against Master's Dismissal of Setting Aside Application and Interlocutory Summons to Amend Default Judgment

Legal Issues

  1. 1 Whether the default judgment was irregular and should be set aside
  2. 2 Whether the defendants demonstrated a real prospect of success on the merits to set aside a regular judgment
  3. 3 Whether the court has power to amend a default judgment under Order 20 r 11 (slip rule) and Order 19 r 9

Ratio Decidendi

The court held the default judgment was properly obtained but contained an obvious error of overlap resulting from the pleading; under Order 20 r 11 and Order 19 r 9 the court had power to amend the judgment to correct the error and should do so; the defendants failed to show a real prospect of success sufficient to set aside the regular judgment, therefore the amendment was allowed and the appeal dismissed.

Court Disposition

Appeal dismissed; plaintiff's summons to amend default judgment allowed; application to set aside default judgment dismissed.

Orders

  • Order in terms of paragraphs 1 and 2 of the plaintiff's summons to amend dated 10 June 2009 (amend default judgment as sought)
  • Defendants' appeal dismissed