LAM CHING SHEUNG v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF TAM SHUI, DECEASED AND OTHERS

LAM CHING SHEUNG v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF TAM SHUI, DECEASED AND OTHERS

The defendants credibly denied receipt or notice of the writ; on the balance of probabilities and given concurrent litigation, there was insufficient material to disbelieve them; therefore the default judgment was irregular and must be set aside as of right.

Citation
LAM CHING SHEUNG v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF TAM SHUI, DECEASED AND OTHERS
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 September 2009
Case Number
HCA2234/2008
Procedural Posture
Civil Debt Recovery / Application to Set Aside Default Judgment
Outcome
The Default Judgment dated 15 January 2009 was set aside as irregular; leave granted to the 2nd and 3rd Defendants to file Defence and Counterclaim; costs ordered in the cause and to be taxed where applicable.
Legal Topics
Setting Aside Default Judgment, Service of Process, Costs, Administration of Estate
Source Language
EN
Civil Procedure Probate Debt Recovery Setting Aside Default Judgment Service of Process Costs Administration of Estate

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Procedural Posture

Civil Debt Recovery / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment dated 15 January 2009 was regular or irregular
  2. 2 Whether the defendants had been brought to notice of the proceedings (proper service)
  3. 3 Whether defendants would have defended the claim if notified

Ratio Decidendi

The defendants credibly denied receipt or notice of the writ; on the balance of probabilities and given concurrent litigation, there was insufficient material to disbelieve them; therefore the default judgment was irregular and must be set aside as of right.

Court Disposition

The Default Judgment dated 15 January 2009 was set aside as irregular; leave granted to the 2nd and 3rd Defendants to file Defence and Counterclaim; costs ordered in the cause and to be taxed where applicable.

Orders

  • Amendment to the summons allowed de bene esse and costs of amendment awarded to the Plaintiff
  • Default Judgment dated 15 January 2009 set aside as irregular