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DCCJ 804/2016
C
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E
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G
G

H
H

I
I

J
J

K
K

L
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 -2-
A A

B B
IN THE DISTRICT COURT OF THE

C HONG KONG SPECIAL ADMINISTRATIVE REGION C

CIVIL ACTION NO 804 OF 2016

D D

E ------------------------- E

BETWEEN
F F
AIA INTERNATIONAL LIMITED Plaintiff
(formerly known as AMERICAN G
G
INTERNATIONAL ASSURANCE
COMPANY (BERMUDA) LIMITED)
H H
and
I CHENG CHUNG SING Defendant I

-------------------------
J J

Before: His Honour Judge MK Liu in Chambers (Open to public) K

K
Date of Hearing: 15 May 2017
L L
Date of Decision: 18 May 2017

M M

-----------------------
N N
DECISION

O
---------------------- O

P P
1. This is the defendants appeal against the order made by Master S H

Q Lee on 3 April 2017, by which the master dismissed the defendants Q

application made under Rules of the District Court (RDC), Order 13

R R
rule 9, for setting aside the default judgment entered on 12 April 2016

S (the Default Judgment) and for consequential directions. S

T T
Background
U U

V V
 -3-
A A

B B

C 2. On 22 February 2016, the plaintiff issued the writ of summons herein. C

The plaintiff claims for the following reliefs in the endorsement of

D D
claim:-

E E

1. The sum of HK$309,540.80, being the total of the

F Plaintiffs respective claims against the Defendant in F
subparagraphs (l) and (2) below :-

G G
(1) Refund of the sum of HK$236,705.48 pursuant
to Clause 12 of an agreement entitled "Letter of
H
H Understanding (New Scheme June 2010)",
dated 11th February 2011 and made between the
Plaintiff and the Defendant ("the LOU"), being I
I
the total of the following sums refundable by the
Defendant to the Plaintiff immediately and
J unconditionally upon the termination of the J
Career Representative's Contract dated March
2011 ("the CR Contract") and made between the K
K Plaintiff and the Defendant, which termination
took place on 26th September 2015 and within
L the 5th year after 25th February 2011 on which the L
Defendant had commenced as an agent of the
Plaintiff pursuant to Clause (l) of an Addendum
M
M to Agency Contracts dated 1st March 2011 and
made between the Plaintiff and the Defendant :-
N N

(a) HK$120,893.48, being 20% of the

Signing Fee in the sum of O
O
HK$604,467.41 paid by the Plaintiff to
the Defendant under Clause 5(a) of the
P LOU; and P

Q (b) HK$115,812.00, being 20% of the Q

Monthly Bonus in the sum of
HK$579,060.00 paid by the Plaintiff to R
R the Defendant under Clauses 6(a) and
6(c) of the LOU.
S S

(2) The sum of HK$72,835.32, being commissions

in respect of 3 policies that the Plaintiff has paid T
T
to the Defendant and the Defendant is liable to

U U

V V
 -4-
A A

B B
repay to the Plaintiff pursuant to Clause 3 of the
CR Contract.
C C
Particulars

D D
Commission
paid to, and due
to be repaid by, E
E Policy no. Insured Issued Cancelled the Defendant

B321950790 Lee Yuk Lan 28/02/2013 HK$21,389.17 F

F
B321627007 Lee Yuk Lan 25/11/2013
B361560551 Lee Jonathan 24/01/2013 HK$50,737.75
G B321610182 Lee Jonathan 27/11/2013 G
B323778608 Cheng Chung 30/12/2013 HK$708.40
Sing
H B322511219 Cheng Chung 20/06/2014 H
Sing
HK$72,835.32 I
I

2. Interest on the said sum of HK$309,540.80 pursuant to J

J
sections 49 and 50 of the District Court Ordinance
(Cap. 336).
K K
3. Costs.
L L

3. The plaintiff filed an affirmation of service on 15 March 2016, in

M M
which the process server said:-

N N

(a) The writ was served on the defendant on 22

O O
February 2016 by sending the same by registered

P post in a prepaid envelope addressed to the P

defendant at the last known address in Tin Shui

Q Q
Wai (the TSW Address).
R R

(b) The writ was also served on the defendant on 22

S S
February 2016 by inserting through a letter box for
T the TSW Address. T

U U

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 -5-
A A

B B
(c) The copies of the writ served in the aforesaid

C modes have not been returned to the plaintiff. C

Each of the said copies was duly sealed with the

D D
seal of this court and was accompanied with the

E forms prescribed by the rules of the court. E

F F
(d) In the opinion of the plaintiff, the sealed copies of
G the writ would have come to the defendants G

knowledge within 7 days after 22 February 2016.

H H

I 4. No intention to defend was filed. The Default Judgment was entered I

on 12 April 2016.
J J

K 5. On 11 November 2016, the defendant issued an inter-partes summons K

for setting aside the Default Judgment and for consequential

L L
st
directions. The application was support by the defendants 1
M
M affirmation filed on 11 November 2016, in which the defendant said:-

N N
3. The abovenamed Plaintiff issued a Writ of Summons on
22nd February 2016 and the same was served together O
O with an endorsement of claim to the address known as
[TSW Address]. I have moved out of the [ TSW
P Address] to [an address in Tuen Mun (the TM P
Address)] since 2012. This is now produced and
shown to me exhibit marked CCS 1 a copy of a
Q
Q tenancy agreement and a gasoline bill addressed to me
at my current address. My 61-year-old mother is the
only person residing at the [TSW Address]. Since I am R
R
always occupied at work for a living, I would only visit
the [TSW Address] around every half year to visit my
S mother and pick up letters address to me at the [TSW S
Address].
T T
4. As I rarely visit the [TSW Address], this action was
only brought to my attention in late August of 2016
U U

V V
 -6-
A A

B B
when I dropped by the [TSW Address]. Upon that visit,
I discovered a letter issued by Messrs. Hom &
C Associates dated 18th July 2016 enclosing a copy of the C
Creditors Bankruptcy Petition. However, I did not
receive and/or notice any other letters and/or court
D D
documents except the said letter. I have been advised
by my solicitors and verily believe that the Judgment is
E
irregular due to ineffective service of the Writ. E

F 6. On 30 December 2016, the plaintiff filed an affirmation in opposition F

made by Mr Leung King Chung, a senior manager of the plaintiff. In

G G
that affirmation, Mr Leung mentioned:-
H H

(a) The plaintiff through their solicitors sent a letter

I I
before action dated 29 January 2016 (the Letter
J
J Before Action) to the defendant at the TSW
Address. K
K

L
L (b) The plaintiffs solicitors also sent an email to the
defendant on 29 January 2016 to the personal M
M
email address (the Email Address) provided by
N
N the defendant to the plaintiff, with the Letter
Before Action enclosed therewith. O
O

P P
(c) The plaintiffs solicitors in the Email mentioned
that the Letter Before Action had been sent to the Q
Q
defendant by post at the TSW Address. The
R R
plaintiffs solicitors in the Email also demanded

S
the defendant to pay the sums set out in the Email S

by 12 February 2016, otherwise the plaintiff would

T T

U U

V V
 -7-
A A

B B
commence legal proceedings against the

C defendant. C

D D
(d) The Email was successfully transmitted.

E E

(e) The defendant did not notify the plaintiffs

F F
solicitors or the plaintiff that he had moved out of
G the TSW Address or that he had been residing at G

the TM Address.
H H

I 7. In his affirmation, Mr Leung produced the LOU and the CR Contract I

mentioned in the endorsement of claim. The defendants residence as

J J
stated in the CR Contract is the TSW Address.
K K

8. On 9 March 2017, the defendant filed his 2nd affirmation, in which he

L L
said:-
M M

3. The Defendant has not received the Plaintiffs Letter

N
N Before Action nor has he received the sealed copies of
the Writ of Summons. It was his elderly mother who
resided at the [TSW Address] and she was the one to O
O
pick up mail sent to the [TSW Address]. She has never
notified the Defendant of the receipt of any letter and/or
P court documents other than that dated 18th July 2016, P
which she would have done so if she received any. The
Plaintiff has not, in the Affirmation of Service, Q
Q produced any records and/or receipts of the addressee
receiving the copies of the Writ of Summons sent by
R way of registered post. R

5. In Paragraphs 6(2) to (6) of the Plaintiffs Affirmation,

S S
the Plaintiff alleges that it has, through Mr. Chan of
Messrs. Hom & Associates, sent an email to [the Email
T
Address] attaching the Plaintiffs Letter Before Action. T
The Email has never come to the attention of the
Defendant as he rarely checked its contents.
U U

V V
 -8-
A A

B B

C 9. On 3 April 2017, after hearing the parties, the master dismissed the C

defendants application for setting aside the Default Judgment.

D D

E Grounds of the appeal E

F F
10.The defendant contends that the Default Judgment is an irregular
G judgment, and he also has a meritorious defence to the plaintiffs G

claim. The defendant submits that for these reasons, his appeal should
H H
be allowed and the Default Judgment should be set aside.
I I

Regularity of the default judgment

J J

K 11.RDC Order 10 rule 1 provides:- K

L L
(2) A writ for service on a defendant within the jurisdiction
may, instead of being served personally on him, be served
M M

(a) by sending a copy of the writ by registered post to

N
the defendant at his usual or last known address; or N

(b) if there is a letter box for that address, by inserting

O through the letter box a copy of the writ enclosed in O
a sealed envelope addressed to the defendant.
P P
(3) Where a writ is served in accordance with paragraph (2)

Q (a) the date of service shall, unless the contrary is Q

shown, be deemed to be the seventh day (ignoring
Order 3, rule 2(5)) after the date on which the copy R
R was sent to, or as the case may be, inserted through
the letter box for, the address in question
S (Emphasis added) S

T 12.The true meaning of usual or last known address in Order 10 rule T

1(2) is clear. I grateful adopt the summary made by DDJ Grace Chan
U U

V V
 -9-
A A

B B
(as she then was) in Lau Ying Sau Sailing and Tang Suet Fan Sinly v

C Wan Kwan Cheung (DCCJ 1405/2010, 7 March 2012), in which the C

learned judge said:-

D D

E
15. It is established law that usual or last known address E
in Order 10 rule 1(2) should be read disjunctively, which
means that a defendant may be served at either his usual or
F his last known address. The word address does not confine F
to a persons residence, but essentially means a location where
a person may be reached or where contact or communication in G
G
written form, such as letter, could be established. A defendant
may have a number of last known addresses as well as a
H number of usual addresses, but there is no need for the plaintiff H
to effect service of the originating process on all of such
addresses. Proper service of the originating process on any one I
I of the defendants last known addresses or any one of his usual
addresses will suffice: The Hong Kong Mortgage Corporation
J Limited v Ching Kit Yu & anor HCMP 2226/2002, per Deputy J
High Court Judge To (as he then was).

K K
13.Even on the defendants own evidence, although he moved out from
L
L the TSW Address in 2012, he would visit the TSW Address from time
to time, and would pick up letters addressed to him at the TSW M
M
Address. Clearly, TSW Address is a location where the defendant
N
N may be reached or where contact or communication in written form
can be established. The defendant has provided the TSW Address to O
O
the plaintiff in the CR Contract. There is no evidence showing that
P P
after signing the CR Contract and before entering the Default
Judgment, the defendant had ever notified the plaintiff of any change Q
Q
of his address. In my judgment, the TSW Address is the defendants
R R
address last known to the plaintiff for the purpose of Order 10 rule

S
1(2). S

T T

U U

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 - 10 -
A A

B B
14.The defendant challenges the plaintiffs evidence by saying that the

C plaintiff has not produced any record or receipt signed by the person C

receiving the registered mail containing the writ. Although there is no

D D
such receipt, the plaintiff has produced a certificate of posting and the

E corresponding receipt issued by the post office showing the payment E

of the postage fee of the registered mail. I am satisfied that what has
F F
been said in the affirmation of service is true, ie the plaintiff has sent
G out a sealed copy of the writ to the defendant at the TSW Address by G

registered post on 22 February 2016. The plaintiff has also served a

H H
sealed copy of the writ on the defendant by inserting the same through
I the letter box for the TSW Address. I

J J
15.That being the case, by the operation of Order 10 rule 1(3), the date of
K service of the writ would be deemed to be the seventh day after 22 K

February 2016, unless the contrary is shown. The burden of showing

L L
the contrary is on the defendant. A bare denial that he has never
M
M received the writ would not be sufficient. The defendant must adduce
convincing and compelling evidence to show that he has never had N
N
notice of the writ.
O O

16.The point has been made clear by the Court of Appeal in Bank of P
P
China (Hong Kong) Ltd. v. Cheung King Fung [2007] 1 HKLRD 462,
Q
Q in which Tang JA (as he then was) said:-

R R
33. We do not read this as suggesting that the court must
accept a defendants assertion no matter how improbable. S
S
34. It is quite clear from Forward v West Sussex County
T Council [1995] 1 WLR 1469, that a defendant is required to T
provide convincing evidence: at 1473G. The Master of the
Rolls went on to say of the judge that He was in our view U
U

V V
 - 11 -
A A

B B
quite right to be sceptical of the contention that the 4th
defendant had not received the writ in the absence of
C compelling evidence to show that it had not been forwarded on C
to him, as would in the ordinary course be accepted: at
1474H. Of course, how much evidence is required must
D D
depend on the circumstances of the particular case. (Emphasis
added)
E E

See also Cheng Chi Lun v. Ng Lai Ming (HCA 1611/2006, HCSD
F F
32/2006, 14 February 2007), per Recorder Fok SC (as he then was) at
G [26]. G

H H
17.The defendant says that he has never received the writ. In my
I judgment, apart from the defendants bare denial, there is no I

convincing and compelling evidence in support of the defendants

J J
position.
K K

(a) The defendant produced a tenancy agreement

L L
dated 15 November 2012 concerning the TM
M
M Address between the landlord and him (the TA).
This is the only tenancy agreement produced by N
N
the defendant. In the hearing before the master on
O
O 3 April 2017, Ms Seto, counsel for the plaintiff,
submitted that the TA could not be evidence in P
P
these proceedings, for it had not been properly
Q
Q stamped. By the operation of s.15(1) of the Stamp
Duty Ordinance, the TA could not be admissible R
R
evidence in these proceedings. The solicitors then
S S
acting for the defendant, gave an undertaking to
the court that they would cause the TA to be T
T
properly stamped within 14 days. On that basis,
U U

V V
 - 12 -
A A

B B
the master took the TA into account in his

C consideration. C

D D
(b) In this appeal hearing, the defendant says that the

E TA has been properly stamped after the hearing on E

3 April 2017. However, he is unable to produce

F F
any document in support of this assertion. Ms Seto
G says that the plaintiff has not received any G

notification from the defendant regarding the

H H
proper stamping of the TA.
I I

(c) Assuming that the defendant is correct and the TA

J J
has already been properly stamped, the TA itself
K does not support the defendants case. The term of K

the TA is from 15 November 2012 to 14 November

L L
2014. Clause 2 of the TA expressly provides that if
M
M there is a renewal of the tenancy upon the
expiration of the term, there must be a new tenancy N
N
agreement for the renewal. No new tenancy
O
O agreement has ever been produced by the
defendant. Accordingly, the TA itself cannot be P
P
evidence showing that the defendant was not living
Q
Q at the TSW Address in late February and early
March 2016, the period during which the sealed R
R
copies of the writ would reach the TSW Address.
S S

(d) The defendant produced a gasoline bill addressing T

T
to him at the TM Address. That gasoline bill is for
U U

V V
 - 13 -
A A

B B
May 2016. However, that gasoline bill is not

C evidence showing that the defendant was not living C

at the TSW Address but at the TM Address in late

D D
February and early March 2016. The defendant

E has not produced any utilities bill addressing to E

him at the TM Address for February and March

F F
2016, and has not offered any explanation as to
G why he did not do so. G

H H
(e) There is no reason why the defendant would be
I able to receive the plaintiffs solicitors letter dated I

18 July 2016 and the creditors bankruptcy petition

J J
enclosed therewith at the TSW Address, but would
K not be able to receive any sealed copy of the writ K

served at the TSW Address.

L L

M
M (f) The defendant claims that he was not aware of the
Email, as he rarely checked his email account. N
N
However, the defendant has not stated how rare he
O
O would check his email account, and he has not
stated when he became aware of the Email for the P
P
first time. His evasive attitude on this issue shows
Q
Q that his evidence is not capable of being believed.
In my judgment, the defendant must be aware of R
R
the Email shortly after 29 January 2016. Having
S S
known the Email, the defendant must be aware of
the fact that the plaintiff would probably T
T

U U

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 - 14 -
A A

B B
commence legal proceedings against him after

C mid-February 2016. C

D D
(g) On the defendants own evidence, his mother is

E residing at the TSW Address, and his mother E

would notify him of receipt of any letter and/or

F F
court document. I have held that the plaintiff did
G serve the sealed copies of the writ at the TSW G

Address by sending out registered post and by

H H
insertion through the letter box for the TSW
I Address on 22 February 2016. Accordingly, the I

mother would have notified the defendant the

J J
receipt of the sealed copies of the writ by early
K March 2016. K

L L
18.In my judgment, the defendant has failed to show the contrary as
M
M specified in Order 10 rule 1(3). The writ was therefore effectively
served on the defendant on the seventh day after 22 February 2016. N
N
The Default Judgment obtained by the plaintiff is a regular judgment.
O O

19.The relevant considerations in respect of setting aside a regular default P

P
judgment has been set out in Hong Kong Civil Procedure 2017,
Q
Q Volume 1, 13/9/13:-

R R
On an application to set aside a regular default judgment, the
major consideration is whether the defendant has shown a S
S
defence on the merits to which the court should pay heed, not
as a rule of law, but as a matter of common sense, since there is
T no point in setting aside a judgment if the defendant has no T
defence, and because, if the defendant can show merits, the
court will not prima facie desire to let a judgment pass on U
U

V V
 - 15 -
A A

B B
which there has been no proper adjudication (per Lord Wright
in Evans v. Bartlam [1937] A.C. 473 , HL at 489).
C C
This is not to say that a defendant who is able to demonstrate a
defence which has a real prospect of success has an automatic
D D
entitlement to have the default judgment set aside. In
exercising the discretion under this rule, the court has regard to
E
all relevant circumstances. What will be relevant as a factor in E
any particular case will depend on the individual facts of that
case. The usual factors are: why the default occurred; the
F defendants conduct after he had notice of the proceedings; an F
explanation for the time taken where there has been delay in
making the application; and any prejudice that would be caused G
G
to the plaintiff or to third parties if the default judgment were to
be set aside. These other relevant factors will then have to be
H weighed against the dominant factor of the merits in order to H
see where the justice of the case lies

I I

20.I would first consider whether the defendant has any meritorious
J J
defence to the plaintiffs claim, and then I would consider other
factors. K
K

L L
Any meritorious defence?

M M

21.For the purpose of setting aside a regular default judgment, it would

N N
not be sufficient by merely showing an arguable defence. The defence

O shown must has a real prospect of success. There are numerous O

authorities on this point, including:-

P P

Q (a) Young Bing Ching v Chow Yung Fong & Another Q

[2001] 2 HKLRD 394, per Recorder Ma SC (as he

R R
then was) at 398H:-
S S

"Where a regular default judgment has been

T obtained, the burden on a defendant is to demonstrate T
that he has a defence on the merits which has a real

U U

V V
 - 16 -
A A

B B
prospect of success or carries with it some degree of
conviction "
C C

(b) Premier Fashion Wears Ltd v Li Hing Chung

D D
[1994] 1 HKC 213, per Godfrey JA (as he then
E was) at 219H-220C:- E

F F
" for the purposes of O 13 r 9, it is not generally
sufficient for a defendant merely to show an arguable
G G
defence A defendant who seeks to set aside a regular
judgment must at least show that his case has a real
H
prospect of success. It seems to me that unless H
potentially credible affidavit evidence from the
defendant has demonstrated a real likelihood that he
I will succeed on fact, he cannot have shown that he has I
a real prospect of success "
J J

22.The gist of the defence put forward by the defendant is as follows:-

K K

L (a) His work performance was satisfactory. L

M M
(b) He had agreed to work for the plaintiff for a

N minimum of 60 months under clause 3 of the LOU. N

O O
(c) The termination of the agency relationship by the
P plaintiff was unjustifiable because the plaintiff had P

not provided him a reason for the termination.

Q Q

R 23.In order to understand whether there is any force in these arguments, R

one has to look at the following provisions in the LOU and the CR
S S
Contract:-
T T

(a) Clause 23 of the CR Contract:-

U U

V V
 - 17 -
A A

B B

Subject to sooner determination of this Agreement by C

C
[the plaintiff] in accordance with Clause 25 of this
Agreement, this Agreement may be terminated
D without any reason thereof:- D
...
(b) By either party upon 15 days notice in writing; E
E (Emphasis added)

F F
(b) Clause 3 of the LOU:-
G G

[the defendant] agrees to faithfully perform all

H obligations of the Contracts and to remain as a bona H
fide insurance agent of [the plaintiff] for a minimum of
60 months from the Commencement Date [i.e. 25 I
I February 2011].

J J
(c) Clause 12 of the LOU:-

K K
In the event that any of the Contracts is terminated
for any reason by either [the defendant] or [the plaintiff]
L L
within the First (1st) to Fifth (5th) year (hereafter called
the Guaranteed Period of Stay after the
M
Commencement Date [i.e. 25 February 2011], [the M
defendant] agrees to refund the whole or part of the
Signing Fee, Monthly Bonus and Agency Production
N Challenge Bonus received to [the plaintiff] immediately N
and unconditionally, in accordance with the terms as
follows:- O
O
Termination of Percentage of Percentage of
P Contracts after Signing Fee to Monthly Bonus and P
Commencement be refunded Agency Production
Date to [the plaintiff] Challenge Bonus to Q
Q be refunded to [the
plaintiff]
R R
Within the 5th year 20% 20%

S S
24.These provisions have been examined by DHCJ Cooney SC in AIA
T International Ltd v Lam Che Wah (HCA 780/2013, 4 December T

2015).
U U

V V
 - 18 -
A A

B B

C (a) In that case, the learned judge said at [43]:- C

D D
in the eyes of a reasonable reader the language of
clause 12 is clear; for any reason means what it says
E and includes termination under clause 23(b) of the E
Contract. If on one view that construction of clause 12
might result in a bad bargain, that is not a reason for F
F departing from the natural language of clause 12. Mr
Lam accepted that the payment of the Signing Fee and
G other bonuses was to encourage the defendant to remain G
with the plaintiff for at least five years but, he
submitted, the parties recognized that there may be a
H
H scenario in which the defendant is not required to serve
for five years, for whatever reason, with a refund or
clawback to be paid by the defendant and, no matter I
I
how unfortunate this may be for the defendant, both
parties agreed to it. I agree with this submission.
J J

(b) The learned judge held at [51] that a reason for the K
K
plaintiff paying bonuses was to encourage an agent
L
L to stay, but there was no corresponding obligation
on the plaintiff to keep an agent for 5 years. M
M

N
N (c) The learned judge further held at [52] that clause
12 of the LOU did not create any obligation on the O
O
plaintiff to engage an agent for at least 5 years.
P P

The learned judges judgment in Lam Che Wah was subsequently Q

Q
affirmed by the Court of Appeal (HCMP 1107/2016, 27 June 2016).
R R

S
25.I respectfully agree with the interpretation of these contractual S

provisions in Lam Che Wah and adopt the said interpretation in this
T T
case. In the light of the true meaning of these contractual provisions,

U U

V V
 - 19 -
A A

B B
the defendant does not have any meritorious defence to the plaintiffs

C claim. C

D D
(a) The plaintiff is entitled to terminate the contract

E with the defendant without any reason. That being E

the case, the plaintiff is not bound to give the

F F
defendant any reason for the termination. The fact
G that the plaintiff has not provided any reason to the G

defendant would not render the termination

H H
unjustifiable.
I I

(b) Since the plaintiff is entitled to terminate the

J J
contract with the defendant without any reason,
K whether the defendants work performance was K

satisfactory is neither here nor there.

L L

M
M (c) Although the defendant has agreed to work for the
plaintiff for 5 years, there is no corresponding N
N
obligation on the plaintiff to keep the defendant as
O
O an agent for 5 years.

P P
26.Since the defendant does not have any meritorious defence to the
Q
Q plaintiffs claim, there is no point to set aside the Default Judgment.

R R

S S

T T

Other factors
U U

V V
 - 20 -
A A

B B

C 27.Apart from lacking any meritorious defence, other factors are also C

against setting aside the Default Judgment.

D D

E (a) There is no satisfactory evidence showing that the E

defendant did not have notice of these proceedings

F F
within the time prescribed by the rules of the court.
G The failure to file a notice of intention to defend in G

time is the defendants own default.

H H

I (b) Even on the defendants own case, he became I

aware of these proceedings in late August 2016,

J J
but he only made the application for setting aside
K the Default Judgment in mid-November 2016. In K

other words, the defendant did not take any action

L L
to set aside the Default Judgment for 2.5 months
M
M after having notice of these proceedings. No
explanation, let alone satisfactory explanation, has N
N
been offered in respect of the delay.
O O

(c) Setting aside the Default Judgment would deprive P

P
the plaintiff of the fruit of litigation, and the costs
Q
Q incurred by the plaintiff in the bankruptcy
proceedings (which is based upon the Default R
R
Judgment) would be wasted. All these would be
S S
prejudice to the plaintiff.

T T

Dismissal with costs

U U

V V
 - 21 -
A A

B B

C 28.For the reasons above, I would exercise my discretion to refuse to set C

aside the Default Judgment. Accordingly, the defendants appeal must

D D
be dismissed, with costs following the event.

E E

29.I dismiss the defendants appeal with costs to the plaintiff on party and
F F
party basis, with a certificate for counsel. I summarily assess those
G costs at HK$30,000. G

H H
30.I thank Ms Seto for the helpful assistance provided to this court.
I I

J J

K K

( MK Liu )
L L
District Judge

M M

Ms Kay Seto, instructed by Hom & Associates, for the plaintiff

N N
The defendant appeared in person
O O

P P

Q Q

R R

S S

T T

U U

V V