FAN KWOK FONG v. YU POK SANG

FAN KWOK FONG v. YU POK SANG

Leave to file the 3rd Affirmation was refused because there were no exceptional circumstances: the evidence could and should have been disclosed earlier and no explanation was given for the late disclosure. The default judgment was set aside as irregular because the defendant likely was not resident at the address where the writ was left and the writ was not brought to his attention; inserting the writ in a letterbox without adequate inquiry did not establish effective service. The Master's costs order stands and costs of the appeal are ordered in the cause (nisi).

Citation
FAN KWOK FONG v. YU POK SANG
Parties
Plaintiff: Plaintiff; Defendant: Yu Pok Sang
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
5 October 2016
Case Number
DCCJ746/2015
Procedural Posture
Appeal From Master's Decision (application to Set Aside Default Judgment) / Hearing De Novo on Appeal; Interlocutory Application to Admit Further Evidence
Outcome
Appeal partly allowed: leave to file the 3rd Affirmation refused; default judgment set aside as irregular; Master's costs order upheld; costs of the appeal ordered in the cause (nisi).
Legal Topics
Setting Aside Default Judgment, Service of Process, Admission of Further Evidence, Costs
Source Language
EN
Civil Procedure Civil Litigation Company/corporate Law Setting Aside Default Judgment Service of Process Admission of Further Evidence Costs

Case Brief

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Parties

Plaintiff

Plaintiff

Yu Pok Sang

Defendant

Procedural Posture

Appeal From Master's Decision (application to Set Aside Default Judgment) / Hearing De Novo on Appeal; Interlocutory Application to Admit Further Evidence

Legal Issues

  1. 1 Whether leave should be granted to file and serve the 3rd Affirmation under O 32 r 16A(4)/r11A(4) (exceptional circumstances)
  2. 2 Whether the default judgment was regular and should be set aside
  3. 3 Allocation of costs arising from the appeal and interlocutory application

Ratio Decidendi

Leave to file the 3rd Affirmation was refused because there were no exceptional circumstances: the evidence could and should have been disclosed earlier and no explanation was given for the late disclosure. The default judgment was set aside as irregular because the defendant likely was not resident at the address where the writ was left and the writ was not brought to his attention; inserting the writ in a letterbox without adequate inquiry did not establish effective service. The Master's costs order stands and costs of the appeal are ordered in the cause (nisi).

Court Disposition

Appeal partly allowed: leave to file the 3rd Affirmation refused; default judgment set aside as irregular; Master's costs order upheld; costs of the appeal ordered in the cause (nisi).

Orders

  • Leave granted to file and serve the 3rd Affirmation of Yu Pok Sang be set aside and the defendant's summons for leave be dismissed
  • The costs order of the Master do stand