WONG CHI KONG BENNY t/a SAI HING CONSTRUCTION & ENGINEERING CO v. TSANG KWONG KEUNG

WONG CHI KONG BENNY t/a SAI HING CONSTRUCTION & ENGINEERING CO v. TSANG KWONG KEUNG

The application to set aside the default judgment and the absolute charging order was allowed because the defendant demonstrated at least a real prospect of success on the merits given the disputed final account and the possibility that a net balance is payable to him; accordingly the judge exercised his discretion to set aside the orders and granted leave to defend without imposing conditions, while awarding costs to the plaintiff.

Citation
WONG CHI KONG BENNY t/a SAI HING CONSTRUCTION & ENGINEERING CO v. TSANG KWONG KEUNG
Parties
Plaintiff: Sai Hing; Defendant: Tsang
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
4 February 2008
Case Number
DCCJ1226/2006
Procedural Posture
Contractual Debt (civil) / Application to Set Aside Default Judgment and Charging Order
Outcome
Default judgment dated 25 April 2006 and charging order absolute dated 16 August 2006 set aside; defendant granted leave to file defence; costs orders made in favour of plaintiff.
Legal Topics
Set Aside Default Judgment, Charging Order, Advance Payments, Final Account, Implied Terms, Set Off, Costs
Source Language
EN
Contract Civil Procedure Debt Recovery Set Aside Default Judgment Charging Order Advance Payments Final Account Implied Terms +2 more

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Parties

Sai Hing

Plaintiff

Tsang

Defendant

Procedural Posture

Contractual Debt (civil) / Application to Set Aside Default Judgment and Charging Order

Legal Issues

  1. 1 Whether the default judgment and charging order should be set aside
  2. 2 Whether advance payments exceeded the 30% contractual limit and are recoverable
  3. 3 Whether Tsang has a meritorious defence showing a net balance in his favour after set off

Ratio Decidendi

The application to set aside the default judgment and the absolute charging order was allowed because the defendant demonstrated at least a real prospect of success on the merits given the disputed final account and the possibility that a net balance is payable to him; accordingly the judge exercised his discretion to set aside the orders and granted leave to defend without imposing conditions, while awarding costs to the plaintiff.

Court Disposition

Default judgment dated 25 April 2006 and charging order absolute dated 16 August 2006 set aside; defendant granted leave to file defence; costs orders made in favour of plaintiff.

Orders

  • Judgment dated 25 April 2006 and the charging order absolute dated 16 August 2006 be set aside
  • Leave to Tsang to file and serve the Defence within 14 days from today