KGL v. CKY AND ANOTHER

KGL v. CKY AND ANOTHER

The court found that three of the four challenged service orders (dispensing with personal service, substituted service by advertisement, and dispensing with service of a late affidavit) were ineffective because there was no evidence the 2nd Respondent had notice; those service failures rendered the resulting disposition orders irregular. Exercising jurisdiction under RHC (including O.35 r.2 with extension and O.2(2) for irregularity), the court set aside the parts of the disposition and service orders affecting the 2nd Respondent and ordered a re-hearing because the 2nd Respondent had real prospects of contesting the s.17 applications and had applied promptly on discovering the orders.

Citation
KGL v. CKY AND ANOTHER
Parties
Petitioner: KGL; 1st Respondent: CKY; 2nd Respondent: LSM
Court
Family Court
Jurisdiction
Hong Kong
Judgment Date
5 August 2005
Case Number
FCMC1453/2002
Procedural Posture
Matrimonial Causes (ancillary Relief; S.17 MPPO Applications) / Judgment on Applications to Set Aside Service Orders and Disposition Orders (re Hearing Ordered)
Outcome
Set aside specified service orders and disposition orders insofar as they affect the 2nd Respondent; re-hearing ordered and directions to be fixed
Legal Topics
Service of Process, Substituted Service, Setting Aside Ex Parte Orders, S.17 MPPO Avoidance of Disposition, Freezing Injunctions, Jurisdiction to Set Aside Judgments, Re Hearing/directions
Source Language
EN
Matrimonial Law Civil Procedure Property Law Service of Process Substituted Service Setting Aside Ex Parte Orders S.17 MPPO Avoidance of Disposition Freezing Injunctions +2 more

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Parties

KGL

Petitioner

CKY

1st Respondent

LSM

2nd Respondent

Procedural Posture

Matrimonial Causes (ancillary Relief; S.17 MPPO Applications) / Judgment on Applications to Set Aside Service Orders and Disposition Orders (re Hearing Ordered)

Legal Issues

  1. 1 Whether four service orders were effective and should be set aside
  2. 2 Whether disposition orders setting aside transfers to 2nd respondent should be set aside for irregularity
  3. 3 Whether the court had jurisdiction to set aside judgments/orders obtained in absence of a party (O.35 r.2/RHC)

Ratio Decidendi

The court found that three of the four challenged service orders (dispensing with personal service, substituted service by advertisement, and dispensing with service of a late affidavit) were ineffective because there was no evidence the 2nd Respondent had notice; those service failures rendered the resulting disposition orders irregular. Exercising jurisdiction under RHC (including O.35 r.2 with extension and O.2(2) for irregularity), the court set aside the parts of the disposition and service orders affecting the 2nd Respondent and ordered a re-hearing because the 2nd Respondent had real prospects of contesting the s.17 applications and had applied promptly on discovering the orders.

Court Disposition

Set aside specified service orders and disposition orders insofar as they affect the 2nd Respondent; re-hearing ordered and directions to be fixed

Orders

  • Order of 11 August 2003 set aside (dispensing with personal service on 2nd Respondent of order of 13 June 2003 and service by delivery to 1st Respondent)
  • Order of 20 November 2003 set aside (substituted service order in relation to 2nd s.17 Application, injunction and supporting affidavit)