WAYFOONG CREDIT LTD v. LI CHI KIN AND ANOTHER

WAYFOONG CREDIT LTD v. LI CHI KIN AND ANOTHER

The mandatory procedural rule requiring specification of a service irregularity in the summons barred reliance on that ground, but on the substantive merits the affidavits and exhibited documents (the Reassignment, letters and facility statements) disclosed a real and arguable defence that the mortgage covenants may have been released or the indebtedness converted or shifted so that the defendants' liability 'pursuant to' the Deed of Mortgage was doubtful; that arguable defence justified dismissal of the plaintiff's challenge to the Master's order (i.e. sustaining the setting aside of the default judgment).

Citation
WAYFOONG CREDIT LTD v. LI CHI KIN AND ANOTHER
Parties
Plaintiff: Wayfoong Credit Ltd.; 1st Defendant: Li Chi Kin; 2nd Defendant: Leung Lai Yee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 August 1985
Case Number
HCA1865/1985
Procedural Posture
Civil Mortgage/debt Recovery / Hearing of Appeal From Master's Order Setting Aside Default Judgment (in Chambers)
Outcome
Appeal dismissed; Master's order setting aside default judgment upheld
Legal Topics
Default Judgment, Setting Aside, Reassignment, Mortgage Covenant, Secured Vs Unsecured Debt, Pleading Sufficiency, Corporate V. Personal Liability
Source Language
EN
Civil Procedure Mortgage Law Contract Equity Debt Recovery Default Judgment Setting Aside Reassignment +4 more

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Parties

Wayfoong Credit Ltd.

Plaintiff

Li Chi Kin

1st Defendant

Leung Lai Yee

2nd Defendant

Procedural Posture

Civil Mortgage/debt Recovery / Hearing of Appeal From Master's Order Setting Aside Default Judgment (in Chambers)

Legal Issues

  1. 1 Whether the writ was properly served and whether failure to specify service irregularity in the summons barred reliance on that ground
  2. 2 Whether the affidavits disclose an arguable defence sufficient to set aside or sustain the setting aside of a default judgment
  3. 3 Whether the Reassignment and accompanying correspondence released the defendants from personal covenants under the mortgage

Ratio Decidendi

The mandatory procedural rule requiring specification of a service irregularity in the summons barred reliance on that ground, but on the substantive merits the affidavits and exhibited documents (the Reassignment, letters and facility statements) disclosed a real and arguable defence that the mortgage covenants may have been released or the indebtedness converted or shifted so that the defendants' liability 'pursuant to' the Deed of Mortgage was doubtful; that arguable defence justified dismissal of the plaintiff's challenge to the Master's order (i.e. sustaining the setting aside of the default judgment).

Court Disposition

Appeal dismissed; Master's order setting aside default judgment upheld

Orders

  • Appeal dismissed
  • Master's order setting aside default judgment upheld