WANG RUIYUN v. GEM GLOBAL YIELD FUND LTD

WANG RUIYUN v. GEM GLOBAL YIELD FUND LTD

Although the defendant's failure to comply with orders was advertent and serious, the court exercised its discretion to set aside the interlocutory default judgment and the consequential damages assessment because default judgments are disfavoured and the plaintiff's late re-amendment to add a substantial claim weighed in favour of allowing a trial on merits; relief was conditional on stringent security — payment into court of HK$60,000,000 or an acceptable first class bank guarantee within 28 days — and other procedural conditions, failing which the judgments would stand.

Citation
WANG RUIYUN v. GEM GLOBAL YIELD FUND LTD
Parties
Plaintiff: WANG RUIYUN; Defendant: GEM GLOBAL YIELD FUND LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 October 2010
Case Number
HCCL16/2006
Procedural Posture
Commercial Action (commercial Action No. 16 of 2006) / Application to Set Aside Interlocutory Default Judgment Following Assessment of Damages
Outcome
Default judgment dated 6 August 2009 and damages assessment dated 9 June 2010 set aside conditional on compliance; if defendant fails to comply the judgments shall stand
Legal Topics
Setting Aside Default Judgment, Service Out of Jurisdiction/leave to Serve, Specific Discovery/non Compliance, Damages Assessment, Costs Orders, Bank Guarantees
Source Language
EN
Civil Procedure Commercial Litigation Conflicts of Law Remedies Setting Aside Default Judgment Service Out of Jurisdiction/leave to Serve Specific Discovery/non Compliance Damages Assessment +2 more

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Parties

WANG RUIYUN

Plaintiff

GEM GLOBAL YIELD FUND LIMITED

Defendant

Procedural Posture

Commercial Action (commercial Action No. 16 of 2006) / Application to Set Aside Interlocutory Default Judgment Following Assessment of Damages

Legal Issues

  1. 1 Whether interlocutory default judgment was irregular for want of leave to serve out under Order 11 r.9(4) RHC
  2. 2 Whether the defendant's non‑compliance was excusable or contumelious so as to justify setting aside judgment
  3. 3 Appropriate exercise of judicial discretion and conditions to grant relief

Ratio Decidendi

Although the defendant's failure to comply with orders was advertent and serious, the court exercised its discretion to set aside the interlocutory default judgment and the consequential damages assessment because default judgments are disfavoured and the plaintiff's late re-amendment to add a substantial claim weighed in favour of allowing a trial on merits; relief was conditional on stringent security — payment into court of HK$60,000,000 or an acceptable first class bank guarantee within 28 days — and other procedural conditions, failing which the judgments would stand.

Court Disposition

Default judgment dated 6 August 2009 and damages assessment dated 9 June 2010 set aside conditional on compliance; if defendant fails to comply the judgments shall stand

Orders

  • Default judgment dated 6 August 2009 and the assessment of damages dated 9 June 2010 are set aside provided the defendant pays into court within 28 days the sum of HK$60,000,000 to be held in an interest‑bearing account or furnishes an acceptable first class bank guarantee for that sum
  • If the defendant fails to comply with the condition (or any judicially extended time) the default judgment dated 6 August 2009 and the damages assessment dated 9 June 2010 shall stand