PATRICK HUNG HING YU v. HO YIN MAN AND OTHERS

PATRICK HUNG HING YU v. HO YIN MAN AND OTHERS

The summons to set aside the default judgment and to withdraw the 8 June 2007 admissions is dismissed: D1 had notice of the proceedings in 2007 and made multiple court filings and admissions then; his belated change of story after the deceased's death lacks credibility and contemporaneous support, his delay was inordinate and unjustified and would cause prejudice to the plaintiff; accordingly there is no real prospect of success sufficient to set aside the default judgment or allow withdrawal of admissions.

Citation
[2018] HKCFI 1015
Parties
Plaintiff (executrix of the Estate of Patrick Hung Hing Yu): Huang Kai Chiun Dorothy; Original Plaintiff (deceased): Patrick Hung Hing Yu; 1st Defendant: Ho Yin Man; 2nd Defendant: Stereo Limited; 3rd Defendant: Fook Tai Investment Company Limited; 4th Defendant: Yam Sam Leung; 5th Defendant: Wealthy Channel Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 May 2018
Case Number
HCA92/2007
Procedural Posture
Civil (property/constructive Trust Dispute) / Chambers Application/summons to Set Aside Default Judgment and to Withdraw Admissions (application to Withdraw Acknowledgment of Service and Admissions)
Outcome
D1's summons dismissed in its entirety; default judgment and judgment on admissions stand
Legal Topics
Service of Process, Default Judgment, Withdrawal of Acknowledgment of Service, Setting Aside Judgment on Admissions, Constructive Trust, Statute of Frauds/disposition of Land
Source Language
EN
Civil Procedure Property Law Trusts and Equitable Remedies Bankruptcy Law Service of Process Default Judgment Withdrawal of Acknowledgment of Service Setting Aside Judgment on Admissions +2 more

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Parties

Huang Kai Chiun Dorothy

Plaintiff (executrix of the Estate of Patrick Hung Hing Yu)

Patrick Hung Hing Yu

Original Plaintiff (deceased)

Ho Yin Man

1st Defendant

Stereo Limited

2nd Defendant

Fook Tai Investment Company Limited

3rd Defendant

Yam Sam Leung

4th Defendant

Wealthy Channel Limited

5th Defendant

Procedural Posture

Civil (property/constructive Trust Dispute) / Chambers Application/summons to Set Aside Default Judgment and to Withdraw Admissions (application to Withdraw Acknowledgment of Service and Admissions)

Legal Issues

  1. 1 Whether the writ was properly served on the first defendant
  2. 2 Whether the acknowledgment of service should be set aside
  3. 3 Whether the default judgment entered against the first defendant should be set aside under Order 19 rule 9

Ratio Decidendi

The summons to set aside the default judgment and to withdraw the 8 June 2007 admissions is dismissed: D1 had notice of the proceedings in 2007 and made multiple court filings and admissions then; his belated change of story after the deceased's death lacks credibility and contemporaneous support, his delay was inordinate and unjustified and would cause prejudice to the plaintiff; accordingly there is no real prospect of success sufficient to set aside the default judgment or allow withdrawal of admissions.

Court Disposition

D1's summons dismissed in its entirety; default judgment and judgment on admissions stand

Orders

  • D1's summons dated 12 July 2017 dismissed
  • Order nisi as to costs: D1 to pay plaintiff's costs of and incidental to D1's summons, to be taxed if not agreed