LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND OTHERS

LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND OTHERS

The judgment entered ex parte was irregular and should be set aside because the plaintiffs sought a fixed sum for what was fundamentally an unliquidated claim requiring accounts and further discovery; moreover the 1st defendant's affirmation filed within the stipulated time amounted to at least substantial compliance with the unless order so an inter partes application should have been pursued rather than ex parte judgment. Although the 2nd defendant failed to file her own affidavit personally, the court exercised discretion because her solicitors' mistake was not contumelious and extended time for compliance while making an unless order against her.

Citation
LAU CHI WANG JAMES AND OTHERS v. IP FOOK CHUEN THOMAS AND OTHERS
Parties
1st Plaintiff (hca 18950); 1st Defendant (hca 18995): Lau Chi Wang James; 2nd Plaintiff (hca 18950); 2nd Defendant (hca 18995): Lau Chi Ming; 3rd Plaintiff (hca 18950); 3rd Defendant (hca 18995): Fong On Construction & Engineering Company Limited; 1st Defendant (hca 18950); 1st Plaintiff (hca 18995): Ip Fook Chuen Thomas; 2nd Defendant (hca 18950); 2nd Plaintiff (hca 18995): Rita Fu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 December 2002
Case Number
HCA18955/1998
Procedural Posture
Civil Appeal Against Dismissal of Application to Set Aside Judgment Arising From Discovery Dispute and Partnership Accounting Claims / Judgment on Appeal (court of First Instance)
Outcome
Appeal allowed; order of Master B. Kwan dated 12 September 2002 set aside; judgment dated 30 November 2001 (sealed 21 January 2002) set aside; time extended for compliance by 2nd defendant with discovery requirement subject to an unless order
Legal Topics
Set Aside Judgment, Specific Discovery, Unless Order, Liquidated Demand Vs Unliquidated Claim, Accounting and Tracing, Extension of Time, Peremptory Orders
Source Language
EN
Partnership Law Equity Civil Procedure Discovery Contract Law Set Aside Judgment Specific Discovery Unless Order +4 more

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Parties

Lau Chi Wang James

1st Plaintiff (hca 18950); 1st Defendant (hca 18995)

Lau Chi Ming

2nd Plaintiff (hca 18950); 2nd Defendant (hca 18995)

Fong On Construction & Engineering Company Limited

3rd Plaintiff (hca 18950); 3rd Defendant (hca 18995)

Ip Fook Chuen Thomas

1st Defendant (hca 18950); 1st Plaintiff (hca 18995)

Rita Fu

2nd Defendant (hca 18950); 2nd Plaintiff (hca 18995)

Procedural Posture

Civil Appeal Against Dismissal of Application to Set Aside Judgment Arising From Discovery Dispute and Partnership Accounting Claims / Judgment on Appeal (court of First Instance)

Legal Issues

  1. 1 Whether entry of judgment for HK$24,641,460.63 was irregular because claim was unliquidated
  2. 2 Whether the defendants substantially complied with the unless order by filing an affirmation dated 20 November 2001
  3. 3 Whether the 2nd defendant was required to file her own affidavit/affirmation and whether failure to do so justified entry of judgment against her

Ratio Decidendi

The judgment entered ex parte was irregular and should be set aside because the plaintiffs sought a fixed sum for what was fundamentally an unliquidated claim requiring accounts and further discovery; moreover the 1st defendant's affirmation filed within the stipulated time amounted to at least substantial compliance with the unless order so an inter partes application should have been pursued rather than ex parte judgment. Although the 2nd defendant failed to file her own affidavit personally, the court exercised discretion because her solicitors' mistake was not contumelious and extended time for compliance while making an unless order against her.

Court Disposition

Appeal allowed; order of Master B. Kwan dated 12 September 2002 set aside; judgment dated 30 November 2001 (sealed 21 January 2002) set aside; time extended for compliance by 2nd defendant with discovery requirement subject to an unless order

Orders

  • Order setting aside Master B. Kwan\u2019s order of 12 September 2002 dismissing the defendants\u2019 application to set aside the judgment
  • Order that the judgment dated 30 November 2001 (sealed and filed 21 January 2002) be set aside