TSAI WEN CHIN t/a ZHUANG JI FOOD TRADE CO v. ZHAO YIE

TSAI WEN CHIN t/a ZHUANG JI FOOD TRADE CO v. ZHAO YIE

The default judgment was set aside because the affirmation of service was materially defective (failing to state letter‑box insertion and the mandatory 7‑day knowledge opinion) and the defendant was not within Hong Kong at the relevant time so service by letter box was ineffective; these defects rendered the judgment irregular and entitled the defendant as of right to have it set aside.

Citation
TSAI WEN CHIN t/a ZHUANG JI FOOD TRADE CO v. ZHAO YIE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 September 2012
Case Number
HCA1191/2011
Procedural Posture
Civil Claim / Application to Set Aside Default Judgment
Outcome
Default judgment set aside
Legal Topics
Setting Aside Default Judgment, Service by Letter Box, Jurisdiction at Time of Service, Irregular Judgment
Source Language
EN
Civil Procedure Service of Process Jurisdiction Intellectual Property Setting Aside Default Judgment Service by Letter Box Jurisdiction at Time of Service Irregular Judgment

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Procedural Posture

Civil Claim / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the affirmation of service was defective for failing to state insertion through letter box and the mandatory 7‑day knowledge statement
  2. 2 Whether the defendant was within the jurisdiction at the time of service and the effect of absence on service by letter box
  3. 3 Whether the default judgment obtained in absence of proper service is irregular and must be set aside as of right

Ratio Decidendi

The default judgment was set aside because the affirmation of service was materially defective (failing to state letter‑box insertion and the mandatory 7‑day knowledge opinion) and the defendant was not within Hong Kong at the relevant time so service by letter box was ineffective; these defects rendered the judgment irregular and entitled the defendant as of right to have it set aside.

Court Disposition

Default judgment set aside

Orders

  • Defendant's application to set aside the default judgment is allowed