CHEUNG PING v. CHEUNG WAI KIT

CHEUNG PING v. CHEUNG WAI KIT

The court set aside the default judgment because the plaintiff failed to prove valid personal service of the amended writ; the judgment was irregular and must be set aside ex debito justitiae. Alternatively, even if the judgment were regular, the defendant demonstrated a credible defence on the merits (denial of any...

Source-derived case information.

Citation
CHEUNG PING v. CHEUNG WAI KIT
Parties
Plaintiff: Plaintiff; Defendant: Cheung Che Keung (deceased); represented by Cheung Wai Kit
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 June 2012
Case Number
DCCJ3618/2010
Procedural Posture
Civil Appeal (district Court) / Appeal From Order Dismissing Application to Set Aside Default Judgment / Interlocutory Appeal
Outcome
Appeal allowed; order of Master I Wong dated 3 May 2012 set aside; default judgment set aside; unconditional leave granted to defendant to defend
Legal Topics
Default Judgment, Service of Process, Setting Aside Judgment, Beneficial Trust, Costs and Counsel Certificates
Source Language
en
Civil Procedure Property Law Trusts and Equity Default Judgment Service of Process Setting Aside Judgment Beneficial Trust Costs and Counsel Certificates

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Parties

Plaintiff

Plaintiff

Cheung Che Keung (deceased); represented by Cheung Wai Kit

Defendant

Procedural Posture

Civil Appeal (district Court) / Appeal From Order Dismissing Application to Set Aside Default Judgment / Interlocutory Appeal

Legal Issues

  1. 1 Whether the amended writ was validly personally served in accordance with Order 65, rule 2
  2. 2 Whether the default judgment was regular or irregular and should be set aside ex debito justitiae
  3. 3 Whether the defendant has a bona fide/credible defence on the merits that would justify setting aside a regular default judgment

Ratio Decidendi

The court set aside the default judgment because the plaintiff failed to prove valid personal service of the amended writ; the judgment was irregular and must be set aside ex debito justitiae. Alternatively, even if the judgment were regular, the defendant demonstrated a credible defence on the merits (denial of any trust over the 1/5 share) sufficient to warrant setting aside a default judgment and granting leave to defend.

Court Disposition

Appeal allowed; order of Master I Wong dated 3 May 2012 set aside; default judgment set aside; unconditional leave granted to defendant to defend

Orders

  • Judgment set aside and unconditional leave to defendant to defend the action
  • Defendant granted leave to file acknowledgment of service within 7 days from date of judgment