NGAI SIN FAT v. KEUNG FUK YAU AND ANOTHER

NGAI SIN FAT v. KEUNG FUK YAU AND ANOTHER

Defendants failed to produce convincing evidence that they did not receive the writ and related summonses delivered to their last known address; the judgment was therefore regular. Defendants also failed to demonstrate a meritorious defence with a real prospect of success because they had prior notice and ample opportunity to obtain expert evidence and adduce contrary proof but did not do so. Accordingly the court refused to exercise its discretion to set aside the default judgment and dismissed the summons.

Citation
[2019] HKDC 711
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
31 May 2019
Case Number
DCCJ228/2018
Procedural Posture
Civil: Negligence, Nuisance, Breach of Deed of Mutual Covenant and Non Natural User (water Seepage) / Application (summons) to Set Aside Default Judgment Following Entry of Judgment in Default
Outcome
Summons dismissed; default judgment set aside application refused and original judgment remains in force.
Legal Topics
Service of Process, Default Judgment, Setting Aside Judgment, Meritorious Defence, Nuisance (water Seepage), Injunctive Relief, Costs
Source Language
EN
Civil Procedure Tort Property Law Service of Process Default Judgment Setting Aside Judgment Meritorious Defence Nuisance (water Seepage) +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Civil: Negligence, Nuisance, Breach of Deed of Mutual Covenant and Non Natural User (water Seepage) / Application (summons) to Set Aside Default Judgment Following Entry of Judgment in Default

Legal Issues

  1. 1 Whether service of writ and summons was effective or irregular
  2. 2 Whether defendants established a meritorious defence with a real prospect of success
  3. 3 Whether the court should exercise its discretion to set aside a regular judgment

Ratio Decidendi

Defendants failed to produce convincing evidence that they did not receive the writ and related summonses delivered to their last known address; the judgment was therefore regular. Defendants also failed to demonstrate a meritorious defence with a real prospect of success because they had prior notice and ample opportunity to obtain expert evidence and adduce contrary proof but did not do so. Accordingly the court refused to exercise its discretion to set aside the default judgment and dismissed the summons.

Court Disposition

Summons dismissed; default judgment set aside application refused and original judgment remains in force.

Orders

  • Summons dismissed
  • Costs of and incidental to the Summons, including reserved costs and the costs of the hearing with certificate for counsel, to be paid by the 1st and 2nd Defendants to the Plaintiff, to be taxed if not agreed