FUTURE BEST (HONG KONG) LTD v. CHIU SUI HING AND ANOTHER

FUTURE BEST (HONG KONG) LTD v. CHIU SUI HING AND ANOTHER

The court found persuasive evidence that the Legal Documents were delivered to the property but were not brought to the 1st Defendant's notice; the default judgment against the 1st Defendant was therefore irregular. Applying residual discretion, the court set aside the D1 Judgment, the Charging Order Nisi and the Charging Order Absolute unconditionally because the 1st Defendant showed a real prospect of success on a non est factum defence (she was elderly, illiterate, deceived into signing as a witness) and her conduct did not justify imposing conditions.

Citation
FUTURE BEST (HONG KONG) LTD v. CHIU SUI HING AND ANOTHER
Parties
Plaintiff / Licensed Money Lender: Future Best (Hong Kong) Limited; 1st Defendant: CHIU Sui Hing; 2nd Defendant: LIN Miu Chu
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
31 March 2009
Case Number
DCCJ539/2008
Procedural Posture
Debt Recovery / Moneylender Loan Enforcement / Decision on Setting Aside Summons (application to Set Aside Default Judgment and Charging Order)
Outcome
D1 Judgment, Charging Order Nisi and Charging Order Absolute set aside; unconditional leave to the 1st Defendant to defend granted.
Legal Topics
Service of Process, Default Judgment, Setting Aside Judgment, Non Est Factum, Charging Order, Misrepresentation, Residual Judicial Discretion
Source Language
EN
Civil Procedure Contract Property Equity Service of Process Default Judgment Setting Aside Judgment Non Est Factum +3 more

Case Brief

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Parties

Future Best (Hong Kong) Limited

Plaintiff / Licensed Money Lender

CHIU Sui Hing

1st Defendant

LIN Miu Chu

2nd Defendant

Procedural Posture

Debt Recovery / Moneylender Loan Enforcement / Decision on Setting Aside Summons (application to Set Aside Default Judgment and Charging Order)

Legal Issues

  1. 1 Whether service at the property constituted bringing notice to the 1st Defendant
  2. 2 Whether the D1 Judgment was regular or irregular
  3. 3 Whether court should exercise residual discretion to set aside an irregular judgment or impose conditions

Ratio Decidendi

The court found persuasive evidence that the Legal Documents were delivered to the property but were not brought to the 1st Defendant's notice; the default judgment against the 1st Defendant was therefore irregular. Applying residual discretion, the court set aside the D1 Judgment, the Charging Order Nisi and the Charging Order Absolute unconditionally because the 1st Defendant showed a real prospect of success on a non est factum defence (she was elderly, illiterate, deceived into signing as a witness) and her conduct did not justify imposing conditions.

Court Disposition

D1 Judgment, Charging Order Nisi and Charging Order Absolute set aside; unconditional leave to the 1st Defendant to defend granted.

Orders

  • Leave for the 1st Defendant to file Acknowledgment of Service within 7 days from date of order
  • 1st Defendant to file and serve Defence within 28 days from date of order