BROAD MARK LTD v. LIN ZHEN ZHONG AND OTHERS

BROAD MARK LTD v. LIN ZHEN ZHONG AND OTHERS

The judge treated the appeal as an original application, found the master lacked jurisdiction to set aside the default judgment, and concluded the 1st defendant demonstrated a real prospect of success on multiple substantive defences (incorrect redemption calculation under the Further Supplemental Deed and that the Deed of Compromise suspended obligations), and accordingly set aside the default judgment against the 1st defendant unconditionally.

Citation
BROAD MARK LTD v. LIN ZHEN ZHONG AND OTHERS
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st defendant; 2nd Defendant: 2nd defendant; 3rd Defendant: 3rd defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 September 2012
Case Number
HCCL2/2012
Procedural Posture
Commercial List (high Court Civil) / Appeal From Master's Decision; Treated as Original Application and Hearing De Novo Before Judge in Chambers
Outcome
Default judgment against the 1st defendant set aside unconditionally; appeal treated as original application; costs ordered for 1st defendant.
Legal Topics
Setting Aside Default Judgment, Jurisdiction of Masters Vs Judges, Service by Contractual Agent, Deed of Compromise Effect, Usury/illegal Interest, Costs Orders
Source Language
EN
Contract Law Civil Procedure Commercial Law Equity and Trusts Enforcement and Remedies Setting Aside Default Judgment Jurisdiction of Masters Vs Judges Service by Contractual Agent +3 more

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Parties

Plaintiff

Plaintiff

1st defendant

1st Defendant

2nd defendant

2nd Defendant

3rd defendant

3rd Defendant

Procedural Posture

Commercial List (high Court Civil) / Appeal From Master's Decision; Treated as Original Application and Hearing De Novo Before Judge in Chambers

Legal Issues

  1. 1 Whether the master had jurisdiction to set aside a default judgment
  2. 2 Whether the 1st defendant demonstrated a real prospect of success sufficient to set aside the default judgment
  3. 3 Whether the Deed of Compromise suspended the plaintiff's rights to sue under the Subscription and Investment Agreement and guarantee

Ratio Decidendi

The judge treated the appeal as an original application, found the master lacked jurisdiction to set aside the default judgment, and concluded the 1st defendant demonstrated a real prospect of success on multiple substantive defences (incorrect redemption calculation under the Further Supplemental Deed and that the Deed of Compromise suspended obligations), and accordingly set aside the default judgment against the 1st defendant unconditionally.

Court Disposition

Default judgment against the 1st defendant set aside unconditionally; appeal treated as original application; costs ordered for 1st defendant.

Orders

  • Default judgment entered against the 1st defendant on 20 March 2012 is set aside unconditionally.
  • Costs of the proceedings before the judge to be paid by the plaintiff to the 1st defendant, to be taxed if not agreed.