RONALD EDWARD TICKNER v. TRANSGLOBAL CONSULTANTS LTD AND ANOTHER

RONALD EDWARD TICKNER v. TRANSGLOBAL CONSULTANTS LTD AND ANOTHER

Dismissal of the application was compelled because the 2nd defendant failed to file his own affidavit and relied on hearsay affirmation lacking personal knowledge; the unverified draft defence was unparticularised and unsupported by documents; legal defences advanced (exemption clause, settlement, limitation) were inadequate because exemption clauses do not cover actual fraud, the settlement was repudiated by non‑payment, and Limitation Ordinance s26 postponed limitation in light of undiscovered fraud, so no real prospect of success was shown.

Citation
RONALD EDWARD TICKNER v. TRANSGLOBAL CONSULTANTS LTD AND ANOTHER
Parties
Plaintiff: Ronald Edward Tickner; 1st Defendant: Transglobal Consultants Limited; 2nd Defendant: Peter Markovitch (alias Paul Jenson)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 February 2009
Case Number
HCA686/2007
Procedural Posture
Civil (fraud and Equitable Claims) / Chambers Application to Set Aside Default Judgment (decision Delivered)
Outcome
2nd defendant's application to set aside the default judgment dated 22 October 2007 and two garnishee orders nisi dated 29 January 2008 dismissed; costs awarded to plaintiff.
Legal Topics
Setting Aside Default Judgment, Garnishee Orders, Equitable Compensation, Dishonest Assistance, Limitation Period (s26), Exemption Clause and Fraud, Fraudulent Misrepresentation, Settlement Agreement Repudiation
Source Language
EN
Fraud Equity Civil Procedure Limitation Law Contract Law Setting Aside Default Judgment Garnishee Orders Equitable Compensation +5 more

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Parties

Ronald Edward Tickner

Plaintiff

Transglobal Consultants Limited

1st Defendant

Peter Markovitch (alias Paul Jenson)

2nd Defendant

Procedural Posture

Civil (fraud and Equitable Claims) / Chambers Application to Set Aside Default Judgment (decision Delivered)

Legal Issues

  1. 1 Whether the 2nd defendant demonstrated a real prospect of success to set aside the default judgment
  2. 2 Whether an affirmation by former solicitors lacking personal knowledge suffices as evidence to defeat a default judgment
  3. 3 Whether an exemption clause limits liability for actual fraud and whether it applies to the 2nd defendant

Ratio Decidendi

Dismissal of the application was compelled because the 2nd defendant failed to file his own affidavit and relied on hearsay affirmation lacking personal knowledge; the unverified draft defence was unparticularised and unsupported by documents; legal defences advanced (exemption clause, settlement, limitation) were inadequate because exemption clauses do not cover actual fraud, the settlement was repudiated by non‑payment, and Limitation Ordinance s26 postponed limitation in light of undiscovered fraud, so no real prospect of success was shown.

Court Disposition

2nd defendant's application to set aside the default judgment dated 22 October 2007 and two garnishee orders nisi dated 29 January 2008 dismissed; costs awarded to plaintiff.

Orders

  • Application dismissed with costs to the plaintiff
  • Default judgment dated 22 October 2007 remains in force