THE LEIGHTON PARK TRUST v. HUYNH FAI AND ANOTHER

THE LEIGHTON PARK TRUST v. HUYNH FAI AND ANOTHER

Because the 1st Defendant was outside the jurisdiction when the Writ was served, service by insertion through the letter box did not comply with O.10 r.1(2)(b) RDC; the summary judgment obtained on that defective service was irregular and was therefore set aside; the 1st Defendant's delay was excused given his prolonged absence and lack of legal advice, so the application was within a reasonable time; subsequent participation in proceedings did not cure the original irregularity.

Citation
THE LEIGHTON PARK TRUST v. HUYNH FAI AND ANOTHER
Parties
Plaintiff: The Leighton Park Trust; 1st Defendant: Huynh Fai; 2nd Defendant: Leong Sio Leng
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 November 2007
Case Number
DCCJ5025/2004
Procedural Posture
Civil District Court / Application to Set Aside Summary Judgment / Appeal Out of Time
Outcome
Summary judgment dated 17.1.2005 and the order of 23.7.2007 set aside; 1st Defendant granted leave to file defence
Legal Topics
Summary Judgment, Service Outside Jurisdiction, Set Aside for Irregularity, Submission to Jurisdiction, Waiver, Order 10 R.1(2)(b) RDC, Order 2 R.2(1) RDC
Source Language
EN
Civil Procedure Service of Process Jurisdiction Enforcement Costs Summary Judgment Service Outside Jurisdiction Set Aside for Irregularity +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

The Leighton Park Trust

Plaintiff

Huynh Fai

1st Defendant

Leong Sio Leng

2nd Defendant

Procedural Posture

Civil District Court / Application to Set Aside Summary Judgment / Appeal Out of Time

Legal Issues

  1. 1 Validity of service of the Writ under O.10 r.1(2)(b) RDC when the defendant was outside the jurisdiction
  2. 2 Whether summary judgment entered pursuant to defective service is irregular and should be set aside
  3. 3 Whether the 1st Defendant submitted to or waived objection to jurisdiction by conduct or by participating in subsequent proceedings

Ratio Decidendi

Because the 1st Defendant was outside the jurisdiction when the Writ was served, service by insertion through the letter box did not comply with O.10 r.1(2)(b) RDC; the summary judgment obtained on that defective service was irregular and was therefore set aside; the 1st Defendant's delay was excused given his prolonged absence and lack of legal advice, so the application was within a reasonable time; subsequent participation in proceedings did not cure the original irregularity.

Court Disposition

Summary judgment dated 17.1.2005 and the order of 23.7.2007 set aside; 1st Defendant granted leave to file defence

Orders

  • Set aside summary judgment dated 17.1.2005
  • Set aside order dated 23.7.2007 made by Master S.T. Poon on 23.7.2007