KWOK CHONG KOW v. JOHNSON ENGINEERING TRANSPORTATION CO LTD

HEAD NOTE

                Service by registered post good when unreturned.

                Summary judgment entered ex parts would only be set aside ex debito justitae on terms, payments of costs and showing of merits even if the registered letter was returned unserved when defendant company failed to effect change of address with Registrar of Companies.

                 Cathrineholm v. Norequipment Ltd. (1972) 2 W.L.R. 1242 followed.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

EMPLOYEE'S COMPMSATION CASE NO.126 OF 1984

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Between

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EX TEMPORE RULING

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1. Summary judgment for liability was entered in favour of the applicant by Judge Wong on 24th October, 1984 in the absence of the respondent. The service of the legal processes including the application was duly effected by registered post on the respondent in accordance with regulation 6 of Employees' Compensation Regulations. Apparently having been satisfied with such due service, Judge Wong entered judgment as said when the respondent failed to turn up before him. In fact the respondent failed to respond to these proceedings until the last hearing before me a week ago. There and then a clerk from the respondent company told me that none of the legal processes had reached the respondent as the respondent had moved from Flat E to Flat D in the same building and as the lady who was entrusted to re-deliver correspondence for it had apparently neglected to do so. These verbal allegations from counsel's table was not supported by any evidence. Accordingly, I adjourned the proceedings to today for the defendant to adduce evidence to substantiate them and to bring out the merits of defence to the application, if any. Today, the respondent has failed to appear by any representation and I have to proceed ex parts the respondent.

2. Nonetheless, in view of the admitted fact that the letter by which service of the proceedings of assessment before me was returned marked "moved" by the Pest Office has put me on guard as to a danger of possibility that in fact the respondent had really not received the earlier registered letter which led up to Judge Wong's Summary Judgment.

3. The law on the matter has been resoundingly settled by A /S Cathrineholm v. Norequipment Trading Ltd., [1972] 2 W.L.R. 1242 in which the lazy set out in the earlier case of Rossi [1956] 1 Q.B. 682 at 694 was approved and adopted by Lord Donning as follows:-

"To sum up, when service of process is allowed by registered post, without more being said on the matter, then if the letter is not returned, it is assumed to have been delivered in the ordinary course of post and any judgment or order by default obtained on the faith of that assumption is perfectly regular. It will not as a rule be set aside except on payment of costs and shoring of merits ... But if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. "

4. At 1247, Lord Donning further elaborated :-

"The rule gives the court a discretion; but the way in which the discretion is exercised is well settled. If the judgment is regular, it is almost an inflexible rule that them must be an affidavit of merits, that is, an affidavit stating facts showing a defence on the merits. But if the judgment is irregular - that is, one which ought not to have been signed at all - then the defendant is entitled ex debito justitiae to have it set aside. That is the practice, as we all know, in chambers and as set out in the Supreme Court Practice (1970), note 4 to R.S.C. Ord. 13, r.9. When the plaintiff has obeyed all the rules entirely properly and entered judgment accordingly, I think it should be treated as regular. "

5. I am not unaware of Thomas Bishop Ltd. [1972] 2 W.L.R. 149 C.A. which was an English Court of Appeal case to the contrary. However, that case must be taken to have been not followed by Cathrineholm. In fact, Cathrineholm the Court of Appeal there expressly preferred Sage[1972] 2 Q.B. 325 to Thomas Bishop Ltd. on the basis that the two conflicting decisions both from the English Court of Appeal of Saga and Thomas Bishop Ltd. had been considered afresh.

6. Returning to this instant application, although the exact wordings in regulation 6 which provides far service by registered post are not identical with the wordings of section 107 of the Companies Act, 1948 upon which Cathrineholm was decided, the legal principle common to both is the same in that in both situations service of process is allowed by registered post. Even without taking into consideration as properly pointed out to me by Miss Launda that the respondent had taken the trouble of applying for re-assessment of the applicant's medical assessment and hence must have knowledge of these proceedings, the summary judgment entered by Judge Wong must be taken as regular and the sane applied to the service leading up to it. I have also noted that the respondent had failed to effect change of the registered address of his office with the Registrar of Companies. Incidentally that was also a common fact in Cathrineholm. Also noted is the fact that the letterhead of the letter of authorisation authorising the clerk to appear for the respondent at the last hearing before me bears the address, namely, Flat E at which the legal processes leading up to Judge Wong's summary judgment were served. That was only one week ago. Even on the merits, there was no indication by way of evidence or otherwise that the respondent had not received the registered letter by which the application leading to Judge Wong's summary judgment was served. I formally rule that such service was good and there is no reason for me to set aside the judgment already entered.