WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

The summary judgment was regular because service was effected at the defendant's stated address for service and that address had not been withdrawn; applying the higher Order 13 r.9 principles to an O.14 r.11 application, the 1st Defendant demonstrated a real prospect of success because his oral defence (that the payment was investor capital/loan and he had warned of risk) could well be believed at trial, and credibility issues required trial; accordingly the summary judgment was set aside with terms as ordered.

Citation
WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER
Parties
Plaintiff: William Thomson; 1st Defendant: Roland John Jeans; 2nd Defendant: Tanner De Witt (a firm)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 May 2006
Case Number
DCCJ3388/2005
Procedural Posture
Civil Action Recovery of Money and Misrepresentation / Application to Set Aside Summary Judgment (o.14 R.11)
Outcome
Summary judgment dated 5 December 2005 entered against the 1st Defendant set aside
Legal Topics
Summary Judgment, Setting Aside Default Judgment, Service of Process, Money Had and Received, Misappropriation/wrongful Conversion, Misrepresentation
Source Language
EN
Civil Procedure Contract Equity Insolvency/bankruptcy Summary Judgment Setting Aside Default Judgment Service of Process Money Had and Received +2 more

Case Brief

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Parties

William Thomson

Plaintiff

Roland John Jeans

1st Defendant

Tanner De Witt (a firm)

2nd Defendant

Procedural Posture

Civil Action Recovery of Money and Misrepresentation / Application to Set Aside Summary Judgment (o.14 R.11)

Legal Issues

  1. 1 Whether summary judgment entered in default was regular or irregular
  2. 2 Whether service at the address for service was valid
  3. 3 Which legal test applies to set aside a summary judgment under O.14 r.11 (whether O.13 r.9 principles apply)

Ratio Decidendi

The summary judgment was regular because service was effected at the defendant's stated address for service and that address had not been withdrawn; applying the higher Order 13 r.9 principles to an O.14 r.11 application, the 1st Defendant demonstrated a real prospect of success because his oral defence (that the payment was investor capital/loan and he had warned of risk) could well be believed at trial, and credibility issues required trial; accordingly the summary judgment was set aside with terms as ordered.

Court Disposition

Summary judgment dated 5 December 2005 entered against the 1st Defendant set aside

Orders

  • The summary judgment dated 5th December 2005 entered against the 1st Defendant in favour of the Plaintiff is set aside
  • Order nisi on costs of the Order 14 application to be in the cause