HUNG LING CHUN FELICIA AND ANOTHER v. CHOW YUNG FONG AND ANOTHER

HUNG LING CHUN FELICIA AND ANOTHER v. CHOW YUNG FONG AND ANOTHER

Although the 2nd defendant demonstrated a defence with a real prospect of success, the court refused to set aside the default judgment because, on weighing all relevant circumstances, the very lengthy delay, unsatisfactory explanations for default and delay, and substantial prejudice to the plaintiff (including the death of the key witness and consequences of intervening bankruptcy/receiving orders and third party interests) made it unjust to reopen the judgment.

Citation
HUNG LING CHUN FELICIA AND ANOTHER v. CHOW YUNG FONG AND ANOTHER
Parties
Plaintiff (appointed to Represent Estate of Young Bing Ching Albert, Deceased): Hung Ling Chun Felicia; Deceased Plaintiff: Young Bing Ching Albert; 1st Defendant: Chow Yung Fong; 2nd Defendant: Ikawa Trust Co. (Hong Kong)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 April 2001
Case Number
HCA10172/1994
Procedural Posture
Civil — Application to Set Aside Default Judgment (appeal) / Appeal to Recorder in Court of First Instance (in Chambers) From Master Souza's Dismissal of Summons to Set Aside Default Judgment
Outcome
Appeal dismissed; default judgment upheld and not set aside
Legal Topics
Setting Aside Default Judgment, Guarantee Liability, Dishonoured Cheque/security Cheque, Partnership Liability, Receiving Order/bankruptcy, Delay and Prejudice in Civil Procedure
Source Language
EN
Civil Procedure Contract Partnership Law Bankruptcy Law Setting Aside Default Judgment Guarantee Liability Dishonoured Cheque/security Cheque Partnership Liability +2 more

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Parties

Hung Ling Chun Felicia

Plaintiff (appointed to Represent Estate of Young Bing Ching Albert, Deceased)

Young Bing Ching Albert

Deceased Plaintiff

Chow Yung Fong

1st Defendant

Ikawa Trust Co. (Hong Kong)

2nd Defendant

Procedural Posture

Civil — Application to Set Aside Default Judgment (appeal) / Appeal to Recorder in Court of First Instance (in Chambers) From Master Souza's Dismissal of Summons to Set Aside Default Judgment

Legal Issues

  1. 1 Whether a defendant showing a defence with a real prospect of success is automatically entitled to have a default judgment set aside
  2. 2 Whether the 2nd defendant was bound as guarantor given the available documentary and circumstantial evidence
  3. 3 Whether the court may refuse to set aside a default judgment despite merit in the defence because of delay and prejudice to the plaintiff and third parties

Ratio Decidendi

Although the 2nd defendant demonstrated a defence with a real prospect of success, the court refused to set aside the default judgment because, on weighing all relevant circumstances, the very lengthy delay, unsatisfactory explanations for default and delay, and substantial prejudice to the plaintiff (including the death of the key witness and consequences of intervening bankruptcy/receiving orders and third party interests) made it unjust to reopen the judgment.

Court Disposition

Appeal dismissed; default judgment upheld and not set aside

Orders

  • Appeal dismissed
  • Order nisi that the 2nd defendant pay the plaintiff the costs of and occasioned by this appeal, to be taxed if not agreed