WONG YAN YAN AND ANOTHER v. HUI MAN FAN CINDY aka HUI MIU AND OTHERS

WONG YAN YAN AND ANOTHER v. HUI MAN FAN CINDY aka HUI MIU AND OTHERS

The Default Judgment was set aside because the change of the company's registered office only became effective upon filing Form NR1 on 1 March 2021, and the writ served by ordinary post on 24 February 2021 was properly treated as deemed served seven days after posting (5 March 2021) meaning service was after the effective change and therefore irregular; additionally, even if service were regular the 3rd defendant demonstrated a real prospect of success on the merits. Despite inordinate delay and notice issues, the balance favoured setting aside the Default Judgment but no costs were awarded on the Summons.

Citation
[2024] HKDC 424
Parties
1st Plaintiff: WONG YAN YAN; 2nd Plaintiff: WONG WING SZE ANNABELLE; 1st Defendant: HUI MAN FAN CINDY (許曼芬) also known as HUI MIU (許淼); 2nd Defendant: 深圳市天諾餐飲管理有限公司; 3rd Defendant: GLOBAL RICH ENTREPRENEUR LIMITED (九馨餐飲管理有限公司 or previously known as 天盛創業有限公司); 4th Defendant: 前海麥思 (深圳) 電子商務有限公司
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 March 2024
Case Number
DCCJ778/2021
Procedural Posture
Civil Action: Contract/fraud Claim for Refund Against Multiple Defendants / Summons to Set Aside Default Judgment (application)
Outcome
Default Judgment set aside; leave granted to plead; no costs on the Summons
Legal Topics
Service of Process, Registered Office, Change of Registered Office, Default Judgment, Setting Aside Judgment, Total Failure of Consideration, Conspiracy, Proof of Service, Notice and Delay
Source Language
EN
Company Law Civil Procedure Contract Law Equity and Trusts Debt Recovery Service of Process Registered Office Change of Registered Office +6 more

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Parties

WONG YAN YAN

1st Plaintiff

WONG WING SZE ANNABELLE

2nd Plaintiff

HUI MAN FAN CINDY (許曼芬) also known as HUI MIU (許淼)

1st Defendant

深圳市天諾餐飲管理有限公司

2nd Defendant

GLOBAL RICH ENTREPRENEUR LIMITED (九馨餐飲管理有限公司 or previously known as 天盛創業有限公司)

3rd Defendant

前海麥思 (深圳) 電子商務有限公司

4th Defendant

Procedural Posture

Civil Action: Contract/fraud Claim for Refund Against Multiple Defendants / Summons to Set Aside Default Judgment (application)

Legal Issues

  1. 1 Whether change of registered office is effective for service before or after filing notice with Registrar
  2. 2 Whether service was effected pursuant to Companies Ordinance s827 or Order 10 rule 1 and the consequences for deemed service timing
  3. 3 Whether the default judgment should be set aside for irregular service

Ratio Decidendi

The Default Judgment was set aside because the change of the company's registered office only became effective upon filing Form NR1 on 1 March 2021, and the writ served by ordinary post on 24 February 2021 was properly treated as deemed served seven days after posting (5 March 2021) meaning service was after the effective change and therefore irregular; additionally, even if service were regular the 3rd defendant demonstrated a real prospect of success on the merits. Despite inordinate delay and notice issues, the balance favoured setting aside the Default Judgment but no costs were awarded on the Summons.

Court Disposition

Default Judgment set aside; leave granted to plead; no costs on the Summons

Orders

  • Default Judgment set aside.
  • Leave for the 3rd defendant to file and serve defence and counterclaim, if any, within 28 days.