YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER

YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER

The summons for default judgment under Order 19, rule 7 was premature because it was issued before the expiration of the period fixed for service of the defence; rule 7 expressly requires the application to be made only after that period, and the court must reject attempts to circumvent that requirement.

Citation
YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER
Parties
Plaintiff: YAU KAR KWAI; 1st Defendant: SHAN JIGESH RAJNIBHAI; 2nd Defendant: SHAN MANSI JIGESH
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 December 2017
Case Number
DCCJ4752/2017
Procedural Posture
Civil Action (application for Default Judgment Under Order 19, Rule 7) / Hearing of Summons for Default Judgment (interlocutory)
Outcome
Summons dismissed with no order as to costs
Legal Topics
Default Judgment, Service of Defence, Procedural Prematurity, Setting Aside Judgment, Order 19 Rule 7, Order 19 Rule 9
Source Language
EN
Civil Procedure Property Law Injunctions Tort (property Damage) Default Judgment Service of Defence Procedural Prematurity Setting Aside Judgment +2 more

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Parties

YAU KAR KWAI

Plaintiff

SHAN JIGESH RAJNIBHAI

1st Defendant

SHAN MANSI JIGESH

2nd Defendant

Procedural Posture

Civil Action (application for Default Judgment Under Order 19, Rule 7) / Hearing of Summons for Default Judgment (interlocutory)

Legal Issues

  1. 1 Whether a plaintiff may apply under Order 19, rule 7 before the expiration of the period fixed for service of the defence
  2. 2 Whether prematurity of a default judgment application can be cured by the passage of time before the hearing
  3. 3 Whether analogy to notice procedure under Order 19, rule 8A or family court practice (LPK v SH) permits early filing

Ratio Decidendi

The summons for default judgment under Order 19, rule 7 was premature because it was issued before the expiration of the period fixed for service of the defence; rule 7 expressly requires the application to be made only after that period, and the court must reject attempts to circumvent that requirement.

Court Disposition

Summons dismissed with no order as to costs

Orders

  • Summons dismissed with no order as to costs