MELCO CROWN GAMING (MACAU) LTD v. WONG YAM TAK

HCA 238/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 238 OF 2013

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BETWEEN

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D E C I S I O N

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Introduction

1.  On 13 May 2013, the plaintiff (“Plaintiff”) obtained judgment against the defendant (“Defendant”) in the principal amount of $4,954,280 with interest (the “judgment debt”) in default of notice of intention to defend (the “Default Judgment”), pursuant to Order 13, rule 1 of the Rules of the High Court (“RHC”).  On the very next day, the Plaintiff took out an ex parte application for a charging order against a property owned by the Defendant in Kau Pui Lung Road (the “Tai On Property”), pursuant to Order 50 rule 1.  On 24 May 2013, the Plaintiff obtained a charging order nisi (the “Charging Order”) against the property.

2.  By two summonses, dated 25 June and 5 November 2013, the Defendant applied respectively to set aside the Default Judgment (the “Setting Aside Summons”); and to discharge the Charging Order and to vacate its registration in the Land Registry (the “Discharge Summons”).

3.  By two summonses, both dated 12 September 2013, the Plaintiff applied for an injunction order to prohibit the Defendant from removing from Hong Kong any of his assets up to the value of the judgment debt, including the disposal of the Tai On Property (the “Injunction Summons”); and for summary judgment pursuant to Order 14, rule 1, in the event that the Default Judgment is set aside (the “Order 14 Summons”).

4.  Order 13, rule 9 gives the court wide discretion in setting aside a judgment in default of notice to defend.  However, that discretion, like any other judicial discretion, must be exercised according to legal principles.  In general, if a default judgment was obtained regularly, it may only be set aside if the defendant is able to show a defence on the merits to which the court should pay heed, not as a rule of law, but as a matter of common sense.  In addition, the defendant has to explain the time taken where there was a delay in making the application to set aside the judgment.  In setting aside the judgment, the court has wide discretion to impose terms such as requiring the defendant to pay the plaintiff’s costs, to give security for costs or to make payment into court where the defence is considered shadowy: see Hong Kong Civil Procedure 2014[1]. If the default judgment was obtained irregularly, the defendant is entitled to have it set aside unconditionally, save the court has residual discretion to impose terms depending on the conduct of the parties which caused the irregularity: see Po Kwong Marble Factory Ltd v Wah Yee Decoration Co Ltd[2].  A recent principle developed by the English Court of Appeal is that despite that the default judgment was obtained irregularly, it will not be set aside if the defendant has no defence: see: Faircharm Investments Ltd v Citibank International Plc[3].  This principle has yet to be considered by the Hong Kong Court of Appeal. 

5.  It is accepted that the Defendant has no notice of the proceedings before the Default Judgment was obtained and has taken out the application to set aside the judgment timeously.  Thus, the first issue to be decided is whether the Default Judgment was obtained regularly.  The issues raised by the Setting Aside Summons are:

(1) whether the Default Judgment was obtained regularly;

(2) if it was, (a) whether the Defendant can demonstrate a good defence; and (b) if it can, the conditions, if any, to be imposed on setting aside the Default Judgment; or (c) if it cannot, the application shall be dismissed; and

(3) if the Default Judgment was obtained irregularly, (a) whether the Defendant’s conduct leading to the obtaining of the Default Judgment was such as to provoke the court to exercise its residual discretion to impose conditions on the setting aside of the Default Judgment; and (b) otherwise, the Default Judgment shall be set aside unconditionally.

Once the Setting Aside Summons is determined, the remaining three summonses would be disposed of by application of well recognised legal principles.

The background

6.  The factual circumstance leading to the service of the writ in the present case is as follows.  It is mostly based on incontrovertible evidence, contemporaneous documents and the Defendant’s evidence in his affirmations unless it is inconsistent with incontrovertible evidence and the totality of the evidence.

7.  The Plaintiff is the owner and operator of ‘City of Dreams Casino’ in Macau.

8.  The Defendant is now 73 years of age.  He is the owner of the Tai On Property and used to reside in Hong Kong.  Because of the severe air pollution in Hong Kong which caused him to suffer persistent and chronic ailments, he moved to live in Shenzhen since 2005.  He is now residing in a flat purchased by his daughter, while his wife continued to live in the Tai On Property.  He makes frequent trips to Hong Kong to see his wife who is in ill-health.  

9.  Between 2005 and 2007, the Defendant worked as a manager in a trading company in Shenzhen.  At present, he is the owner of a company named ‘3D Multi-Media Company Limited’ (“3D Multi-Media”) with its registered business address at The Hart in Hart Avenue (“The Hart”), which is the address of an office service provider.

10.  On 8 July 2012, the Defendant went to the City of Dreams Casino in Macau and entered into an agreement for a credit of $5 million with the Plaintiff.  The terms of the credit agreement are contained in a document entitled ‘Application For A Cheque Cashing Or Credit Facility’ signed by the Defendant (the “Credit Agreement”).   

11.  The Defendant’s residential address as stated in Item 1 in the Credit Agreement is an address in Panorama in Robinson Road (the “Panorama address”).  The details of his business as stated in Item 2 is    ‘福建省南平森發建材有限公司’, a corporation carrying on business as a construction material supplier in the People’s Republic of China with an address in Fukien Province.  He disputed that that he gave those particulars to the Plaintiff.  It is his case that he only signed the Credit Agreement in blank.  Someone filled in those particulars for him without his knowledge or consent.  

12.  The Defendant deposited with the Plaintiff as security a blank cheque drawn on his account with Hang Seng Bank and signed by him.  He also signed a document entitled ‘Liability Statement’ acknowledging liability for the credit facility given to him and authorising the Plaintiff to fill in the amount of indebtedness and issue date on the cheque when as the Plaintiff desired.  The Liability Statement is in the following terms:

“I, Wong Yam Tak, hereby guarantee by issuing a cheque in favour of MELCO CROWN GAMING (MACAU) LIMITED and assume total liability for the compliance of the obligations herein referred, including but not limited to the payment of any outstanding amounts due to direct or indirect credit facilities granted or to be granted by MELCO CROWN GAMING (MACAU) LIMITED from time to time to me. I hereby give consent for MELCO CROWN GAMING (MACAU) LIMITED to fill in the amount of indebtedness, as well as the issuance date and place whenever MELCO CROWN GAMING (MACAU) LIMITED freely decides to claim and/or liquidate any amounts due.”

13.  On that day, the Defendant purchased gambling chips in the value of $5 million as evidenced by a marker confirming his agreement to pay $5 million and chip purchase voucher, both signed by him and dated 8 July 2012 at 16:06:52 hours, and a receipt (the “First Loan”).  These three documents all bear a document number CM027357.  Then the Defendant was given the gambling chips and placed bets. That marker was subsequently redeemed, ie the credit of $5 million was repaid in full.  This loan is not the subject matter of this action.  

14.  On 10 August 2012, the Defendant signed another marker, document number CM028189 for a loan of $5 million (the “Second Loan”). This loan was not repaid.  Settlement of the Defendant’s gaming activities took place on 28 August 2012.  After deducting a credit balance in the sum of $45,720 from his account, a balance of $4,954,280 remains outstanding.   This outstanding balance is the subject matter of this action.  Despite repeated demands, the Defendant did not pay.

15.  On 18 January 2013, an investigating officer of the Plaintiff’s Investigation Department visited the Defendant’s office at The Hart and delivered a statement of account and two name cards to 3D Multi-Media through its office service provider.  The Defendant received the statement and name cards but did not respond.

16.  Later that month, a registered letter addressed to the Defendant was delivered to The Hart.  The Defendant was aware of the delivery but did not collect the letter and did not know who the sender of that letter was.

17.  On 6 February 2013, the Plaintiff’s solicitors, Mayer Brown JSM (“MBJSM”), issued a writ of summons in this action against the Defendant.  Having failed to serve it on him at the Panorama address, MBJSM obtained leave for substituted service of the writ and service was effected on 12 April 2013.  On 13 May 2013, the Plaintiff obtained the Default Judgment against the Defendant.

18.  Somehow, the Plaintiff came to know about the Defendant’s ownership of the Tai On Property.  On 14 May 2013, MBJSM caused a land search to be conducted against that property which confirmed that the Defendant is its sole registered owner.  On the same day, MBJSM applied for a charging order for the judgment debt with interest against the Tai On Property. The Charging Order was granted on 24 May 2013.

19.  The Defendant took out the Setting Aside Summons and Discharge Summons on 25 June and 6 November 2013, respectively.  The Plaintiff took out the Injunction Summons and the Order 14 Summons on 12 September 2013.

The defence

20.  Before dealing with the issue of regularity or otherwise of the service of the writ and the Default Judgment, it would be convenient to first turn to the defence because the facts relied on by the Defendant in his defence are highly relevant to the question of service.  The Defendant’s defence is misrepresentation.  His case is as follows.

21.  On or around 3 July 2012, a man named “Ah B” offered and/or represented to him that if he were to act as agent for Ah B’s principal (the “Principal”) and obtain membership and credit facilities at various Macanese casinos with the use of his checking account, he would be remunerated 1% of the sums drawn down from such credit facilities (the “Agency Agreement”).  Ah B and another person named “Ah Keung” represented to him that the Principal would repay the sums borrowed under the credit facilities and therefore would not deposit any money into his checking account for repaying the credit facilities.  They also represented to him that as agent for the Principal he would not be personally liable for any of the sums owed under the credit facilities.

22.  On 8 July 2012, the Defendant travelled to Macau with Ah B.  There, they met Ah Keung.  On the instruction of the Principal, through Ah Keung, he executed the Credit Agreement at the City of Dreams Casino.  The documentation was arranged by Ah Keung and a female employee of the casino.  He was instructed by Ah Keung to sign the Credit Agreement and his cheque and to leave all other details blank.  He had no opportunity to see what was done with the documents or to review the contents of the Credit Agreement. He was then given gambling chips.  He placed bets and lost bets worth $100,000.  Then Ah Keung took the remaining gambling chips worth $4,900,000 and left.

23.  The Defendant mentioned nothing about the Second Loan on 10 August 2012 which is the subject matter of this action, implying he had no dispute about the Second Loan.  He said he was not a habitual gambler at any time in his life and the visit to the City of Dreams Casino on 8 July 2012 was his first. 

24.  He filed a complaint with the Macau Police on 15 May 2013, ten months later. 

The service

25.  On 6 February 2013, MBJSM sent a sealed copy writ of summons by registered post to the Defendant at the Panorama address. It was returned by the Post Office and marked “addressee unknown”.

26.  On the same day, MBJSM’s process server attended the Panorama address for the purpose of serving a sealed copy writ by inserting it through the letter box.  He was prevented from doing so by a caretaker.  He made enquiries with a clerk in the management office and was informed that the Defendant had moved out six months ago.  That was a mis-information as the Defendant never lived there.  The clerk might have mistaken the Defendant for a former tenant.  

27.  The process server sent two identical appointment letters dated 21 February 2013 by registered post and ordinary post addressed to the Defendant at the Panorama address. These were returned by the Post Office through the dead letter service, both marked “addressee unknown”.

28.  On 1 March 2013, the process server attended the Panorama address at the time as stated in the appointment letter for the purpose of effecting personal service on the Defendant.  There was no one at the address.  The caretaker did not allow him to contact the neighbours for making enquiries.

29.  On 6 March 2013, the process server again attended the Panorama address.  He was told by an occupant of that address through the intercom that the Defendant never lived there; that she did not know the Defendant; and that she had returned all the letters sent to the Defendant.  He made enquiries with a caretaker who told him that he had no knowledge of the Defendant.

30.  A search against the record of owners of the Panorama address showed that the Defendant was not the registered owner of that address since 1991.

31.  Based on the above information, on 28 March 2013 the Plaintiff obtained an order for substituted service on the Defendant by posting the writ of summons to the Defendant at the Panorama address as his last known address and by placing an advertisement of a notice of these proceedings once in Sing Tao Daily.  Pursuant to that order, the writ was served by substituted service in the above manner on 12 April 2013.

The legal principle applicable to substituted service

32.  It is Mr Maurellet’s submission that regardless of the mode of service, the test for service is whether the writ has been brought to the notice of the defendant and not whether it has been delivered to the defendant’s last known address in accordance with the order for substituted service.  He relied on Chu Kam Lun v Yap Lisa Susanto[4], Sinokawa Investment (Holdings) Ltd v Li Chun[5] and Sopex International SA and Sedona International Holdings Ltd v Arnold Deparis and Jian Ping Du[6] in support of that test.  He equated regularity of service and regularity of the default judgment with the issue whether the writ has been brought to the defendant’s notice.   He argued that as the Defendant had no notice of the writ the Default Judgment was irregularly obtained and ought to be set aside as of right. 

33.  Mr Law, for the Plaintiff, seemed to have been carried away by the authorities quoted by Mr Maurellet and accepted the test of service submitted by Mr Maurellet as correct.  He took the view that the Plaintiff is not in a position to dispute if the Defendant had notice of the writ and therefore not in a position to dispute if the Default Judgment was irregular.  On the basis of that test, he accepted that the judgment was obtained irregularly but resorted to argue, relying on Faircharm, that the Default Judgment should not be set aside as the Defendant has no defence to the action. 

34.  With respect, I do not agree with the test of service submitted by Mr Maurellet or the approach adopted by Mr Law.   In my view, there is an important distinction between ordinary service and substituted service.  Ordinary service is the usual mode of service which litigants adopt in accordance with the rules of the court, namely Order 10, rule 1 of RHC.  Substituted service is not.  Different tests apply to the two modes of service. 

35.  For ordinary service, the test is, as submitted by Mr Maurellet, whether the writ has been brought to the notice of the defendant.   Chu Kam Lun and Sinokawa Investment quoted by Mr Maurellet are the appropriate authorities for that proposition.  Both authorities are cases of ordinary service.  In Chu Kam Lun,the writ was served by insertion into the mail box at the last known address of the defendant but at a time when the plaintiff must have known that the defendant was out of the jurisdiction.  In Sinokawa Investment,the writ was also similarly served by insertion into the mail box at the last known address of the defendant, but the defendant had actually moved and had no notice of the writ.  These are not cases of substituted service.

36.  In arguing that the tests for both modes of service are the same, Mr Maurellet relied principally on the decision of Deputy Judge Saunders, as he then was, in Sopex International SA.  In that case, the writ was served by substituted service but the defendant was unaware of it until he was stopped at the immigration counter at Hunghom Railway Station.  The learned judge held that the same principles ought to apply whichever means of service was adopted.  He said in paragraphs 5 to 7:

“5. That being the case I am satisfied that it is not necessary for me to conduct any inquiry as to whether or not the order for substituted service ought to have been made or not. If it ought not to have been made, then Mr Du is entitled to have the judgment set aside. If it was a proper order, but was ineffectual in bringing the proceedings to his notice, he is entitled to have the judgment set aside. A fine point then arises, in both circumstances, as to whether or not, before the judgment is set aside Mr Du must establish that he has a good prospect of succeeding in a defence to the action.

6. There appears to be a conflict in the Hong Kong authorities as to the basis upon which a default judgement may be set aside. In Chan Yeuk Mui v Ng Shu Chi [1999] 2 HKC 702, a strong court comprising Mortimer VP, Godfrey and Rogers JJA, appeared to take the position, in a judgement of Rogers JA, (as he then was), that where the proceedings have not come to the notice of the defendant, judgment would not be set aside where the defendant failed to show any defence. That decision appears to be in conflict with the decision in Fok Chun Hung v Lo Yuk Shi [1995] 2 HKC 648, where an equally strong court comprising Power VP, Mortimer and Godfrey JJA, held that where a notice of the proceedings had not come to the attention of the defendant, the defendant was entitled to have the judgment set aside unconditionally. That decision was followed by a court comprising Rogers VP and Yuen JA in Liu Chong Hing Bank Ltd v Union World (HK) Ltd [2005] 1 HKC 20.

7. It is right that none of those decisions involved issues of substituted service, but in my view that makes no difference. If the whole point of service, whether it be by registered post at a last known address, or through a letterbox, or by substituted service, is to bring the attention of the defendant to the proceedings, and if that result is not achieved, then the same principles ought to apply which ever means of service was adopted. It would be remarkable if one rule would apply when service by registered post or delivery through a letterbox has failed to bring the proceedings to the attention of the defendant, but another rule, significantly more onerous, should apply in circumstances of substituted service. Mr Stock contended that the rules were different in relation to substituted service. He acknowledged that where service is effected by the insertion of a writ in a letterbox, pursuant to O. 10 R. 2(b) and the defendant establishes that the writ did not come to his attention, any judgement entered by default may be set aside. But he said that where service is effected the pursuant to an order for substituted service under O. 65 R 4, it is does not matter that the writ does not come to the notice of the defendant for the effect of the Rules is that effective service has taken place by compliance with the order for substituted service, and the judgement may not be set aside. That cannot be right. It would be remarkable for the court to say to a man who did not receive notice of a writ inserted through a letterbox: “as you did not receive actual notice of the writ, the default judgement may be set aside”; but to a man who does not see a single advertisement published once in a newspaper: “the default judgement may not be set aside because service on you was effected by publication of the notice and it does not matter that you did not see the notice and so did not know of the proceedings”. The proposition only needs to be stated to show its fallacy.”

(Emphasis by Mr Maurellet underlined.)

Mr Maurellet placed great emphasis on the underlined dicta in paragraph 7 of the judgment where the learned judge took the view that because the whole purpose of service was to bring the proceedings to the notice of the defendant the same principles apply whichever means of service was adopted and whether in the case of substituted service or otherwise. 

37.  I respectfully differ from that over sweeping statement.  As can be seen in paragraph 5, the learned judge’s approach was to wholly disregard the distinction between ordinary service and substituted service and just focus on the issue whether the proceedings had been brought to the notice of the defendant.  It was because of his ignoring that distinction that he found the two Court of Appeal decisions in Chan Yeuk Mui v Ng Shu Chi [7] and Fok Chun Hung v Lo Yuk Shi[8] conflicting.  Those two decisions are not conflicting but are reconcilable on the basis that the former was a case of substituted service and the latter was not.  With respect, the learned judge obviously erred when he said in paragraph 7 that those decisions did not involve issues of substituted service (see paragraph 40 below).

38.  Sopex International SA is inconsistent with a long line of very well established authorities from the English Court of Appeal as early as the 19^th century and from the Hong Kong Court of Appeal to the effect that service of process by substituted service is deemed actual service which is valid and effective.   In Watt v Barnett[9], for example, Jessel MR said:

“The Court, when an application for leave to effect substituted service is made, decides as to the propriety of granting it, and if service is effected according to the order of the Court it is, while the order remains undischarged, equivalent for all purposes to actual service. I agree, however, with both the learned judges that, though the service may have been regular according to the order, still the Court has power to set aside the judgment where that is necessary for the purpose of doing substantial justice. The mere fact that the defendant has not had notice of the proceedings is not of itself sufficient; to hold it to be so would in fact be setting aside the order for substituted service. But if he shews that he had no notice, and that he has a good ground of defence, it is reasonable that he should be let in to defend. The first question then is whether the Court is satisfied that there is a good defence on the merits, if not, leave to come in ought to be refused.”

(My emphasis underlined.)

39.  Watt v Barnett was referred to and adopted by Hunter JA in Honour Finance Co. Ltd. v. Chui Mei‑mei[10].  Hunter JA said[11] :

“Any legal system has to operate within the parameters of practical realities. When a court orders substituted service, e.g. by advertisement, it can do no more than its best to bring the proceedings to the notice of the particular defendant. No one, court or party, would for one moment guarantee success. … Compliance with an order for substituted service was there treated as “equivalent for all purposes to actual service” (per Jessel, MR at p 366). Accordingly the mere fact that the defendant was able to show lack of notice was not sufficient to entitle him to be let in to defend. He was required in addition to show “a good ground of defence”.

At that time service by post was a recognised form of substituted service. Now it is a permissible variant to personal service. It is not a second class variant, but an effective variant, given proper compliance with the rules. Then the deeming provisions give service by post a quality again “equivalent to actual service” in the absence of evidence to the contrary. A default judgment entered then is regular, not in the language of Lopes, LJ in Anlaby v Preatorius (1888) 20 QBD 764, 771:

“A wrongful act, not an act done within any of the rules.”

Such a judgment will then only be set aside upon proof both of lack of timeous receipt and merit.”

(My emphasis underlined.)

40.  More recently, in Chan Yeuk Mui[12], which was considered by Deputy Judge Saunders in Sopex International SA, Rogers JA (as he then was), held:

“The order for substituted service, once made, took effect to provide that service in accordance with the order would constitute a valid service. Such an order should not be set aside lightly particularly as the order had been made following established practice.”

41.  The rationale behind this principle arose out of the distinction between ordinary service and substituted service.  Substituted service is invoked where service in accordance with the ordinary rules of service is ineffective and impracticable.  Usually, this situation is brought about by the defendant providing an incorrect address inadvertently or deliberately with a view to avoid service or is caused by some conduct of the defendant which prevented effective service and for which the defendant is responsible, even if not to blame.  Substituted service is to provide a practical solution to such situation to enable the proceedings to progress and to do justice between the parties in circumstances where the ordinary rules of service would prevent justice from being done.  A party seeking to serve any process by substituted service has to apply to the court for leave.  The court decides its propriety and the adequacy of the mode of service.  Leave is only granted if the court is satisfied that it can do no more than its best, within the realm of reasonable practicability, to bring the proceedings to the notice of the defendant by the mode of service prescribed in the order.  This special mode of service in compliance with an order of the court, as distinct from ordinary mode of service pursuant to rules of the court, has the sanction of the court and is therefore treated as actual, effective and valid service as a matter of practical reality.  This rationale could be seen running throughout the decisions in Watt v Barnett, Honour Finance, and Chan Yeuk Mui. This principle has never been doubted, except in Sopex International SA. To adopt the same test for the two modes of service would render substituted service an unnecessary and a meaningless waste of the court’s time and the plaintiff’s costs.  Putting this in another way, if service in accordance with an order for substituted service is not to be treated as valid and actual service, the whole regime of substituted service would be rendered redundant and wasteful of the litigant’s time and costs.  In my view, this principle which has stood unchallenged for over a hundred and thirty years is now cast in stone. 

Was the judgment regular

42.  A salient fact relied on by the Defendant in his defence is that he signed the Credit Agreement in blank; he did not provide the Panorama address; someone else, whom he did not know, did.  It is also not his case that he had disclosed to the Plaintiff his business address at The Hart, his residential address in Shenzhen, or the Tai On Property address.  It is highly incredible that a casino would have granted a loan of $5 million to a stranger without even ascertaining from him his identity and address.  One wonders why his Hong Kong identity card number was written on the Credit Agreement if, as he alleged, he just signed it in blank and leaving all details to be filled in by Ah Keung and the female staff.  There is no dispute that number is correct.  Putting aside this question of inherent credibility, his evidence was that he simply provided no address.  The fact relied on in his defence shows that he acted in concert with Ah B and Ah Keung to procure the loan from the Plaintiff.  Viewed objectively, the effect of his evidence is that the three of them went, presumably, to the “big gambler’s section” of the casino and asked for gambling facility.  He signed the documents leaving Ah B, Ah Keung and the staff of the casino to fill in the details.  The staff of the casino could not have invented the Panorama address and his identity card number for him.  He must have or was deemed to have authorised Ah B and/or Ah Keung to provide the particulars to be filled in the blank spaces on the Credit Agreement, including his residential and business addresses. He must be bound by the act of Ah B or Ah Keung who in furtherance of their agreement provided the Panorama address.  He must accept the legal consequence of their conduct.  Furthermore, if he allowed someone to put in some information on his behalf in a document of which he knew the nature, such as a loan agreement, he has to accept the legal consequence, in just the same way as someone who signed a document knowing of its nature cannot plead non est factum.  However one looks at the fact relied on by the Defendant, he cannot escape the consequence of the representation that the address as appearing on the Credit Agreement is his address.  Thus, the Panorama address is an address provided by him or by someone on his behalf and was his last known address.

43.  The Defendant sang and danced about the visit by the Plaintiff’s investigator to his business address at The Hart and the immediate steps taken by MBJSM in applying for the legal charge against the Tai On Property.  All that was said for the purpose of casting a bad light on the conduct of the Plaintiff and MBJSM in obtaining the Charging Order.  I go further and ask myself whether these facts indicate that the mode of service in order for substituted service was not adequate to bring the proceedings to the notice of the Defendant. 

44.  Be that as it may, it is not the Defendant’s case that he had provided those addresses to the Plaintiff, and then the Plaintiff staged the conditions for substituted service so as to obtain the Default Judgment on the strength of which it obtained the Charging Order.  It is unfortunate that the Plaintiff offered no explanation.  It is obvious that most probably the Plaintiff’s investigator might have from some searches available on the internet found that someone with an identical name as the Defendant’s was a director of 3D Multi-Media and then found from the Companies Registry that that director had an address at the Tai On Property.  There was no guarantee or indication that that director was the Defendant because that director’s identity card number or personal particulars were not shown in those documents.  Whether that was so does not matter.  What is important is that having received the monthly statement re-directed by the office service provider to him, the Defendant did not respond.  He did not even write back to the Plaintiff to deny the outstanding balance.  Viewed in that light, if the Plaintiff served the writ at The Hart or the Tai On Property and if that person served was not the Defendant, the Plaintiff would face costs and other consequences.  Those addresses were not provided by the Defendant to the Plaintiff.  How can the Defendant even begin to argue that the Plaintiff should have served the writ on him at The Hart or the Tai On Property?  How can it be argued that those were his last known addresses?  Furthermore, on his own evidence, he deliberately declined to collect a registered mail addressed to him at The Hart.  He was evading mails. How can he even begin to argue that had the writ been served at those addresses, he would have had notice of the proceedings?  The position is different after the Default Judgment was obtained.  The Plaintiff has a judgment.  It has to either enforce it or forgo it.  The Defendant is nowhere to be found.  Enforcing the judgment is its only hope of recovering the debt. It was worth the risk trying and should be tried promptly.

45.  Had the Defendant responded to the Plaintiff upon receipt of the statement, I would have reason to set aside the order for substituted service on the ground that the mode of service ordered therein was known to be ineffective and that there was another address known to the Plaintiff on which the writ could have been served and the proceedings brought to the notice of the Defendant.  But the Defendant had not responded.  He tried to evade the Plaintiff’s investigators.  How can he now turn around and complain when he was caught by his own evasive conduct?    

46.  On the fact, I am satisfied that the Panorama address was the Defendant’s last known address and the master could do no better to bring the proceedings to the Defendant’s notice than by ordering service by post at that address and by advertisement on the newspaper.  The substituted service is in law deemed actual and effective service.  I have no reason to set aside the master’s order for substituted service.  The Default Judgment was obtained regularly.  The fact that the Defendant actually had no notice does not entitle him to defend as of right.  Accordingly, to set aside the Default Judgment, the Defendant is required to show merit.  In view of the above conclusion, the occasion has not arisen for me to consider if I should adopt the principle in Faircharm.   

Has the Defendant a meritorious defence

47.  The thrust of Mr Maurellet’s argument is that the Default Judgment was obtained irregularly and that is the end of the matter.  He did not go into the merit of the defence.  I can well understand his difficulty.

48.  The Defendant’s defence is fraudulent misrepresentation.  His case is that he was induced by the misrepresentation of Ah B and Ah Keung to enter into the Credit Agreement.  They misrepresented to him that the Principal would repay the sum borrowed under the Credit Agreement without recourse to him and he would not be personally liable for the money owing under the Credit Agreement.  He was not a habitual gambler.  He gave an account of what happened on the 8 July 2012 when he obtained the First Loan; but mentioned nothing about what happened on 12 August 2012 when he obtained the Second Loan.  The First Loan was repaid, but not the Second Loan.  He did not deny he had obtained the Second Loan and that the loan had not been repaid which is the subject matter of the present action.

49.  As submitted by Mr Law, this defence is unsustainable as a matter of law.  In order to obtain relief to a person who has entered into a contract as a result of a misrepresentation, that person has to show that the misrepresentation was made by the other party to the contract or by his agent acting within the scope of his authority or that the other party had notice of the misrepresentation: see Chitty on Contracts[13] and Hasan v Wilson[14].  On the Defendant’s case, the misrepresentation was made by Ah B and Ah Keung.  He offered no evidence that the misrepresentation was made by the Plaintiff’s staff or that Ah B, Ah Keung or he, himself, had repeated the misrepresentation to the staff at or about the time he entered into the Credit Agreement.  It is not his case that Ah B, Ah Keung or the Principal were agents of the Plaintiff.  This defence must fail as a matter of law.

50.  Besides, the defence is inherently incredible. The Defendant is not a schoolboy or an old man suffering an infirmity.  He is a man, on his own evidence, engaging in an active business.  On his case, he was asked to borrow $5 million on the strength of a blank cheque drawn on his own account.  Upon presentment, the bank account was found to have been closed.  Under the agreement, he was to gamble and get his commission with all liability for loss borne by the Principal without recourse to him.  Does the agreement make commercial sense?  Is the Defendant himself a skilled gambler who wins most of the time such that the Principal would place bet on him relying on his skill, ability and luck?  Could he honestly believe that the Principal, whom he did not know and never saw and whose identity was unknown to him, would pay any amount owing by him under the Credit Agreement.  He did not even give particulars of Ah B, Ah Keung and the Principal.  Presumably, he did not even know their names.  Could a seasoned businessman have placed trust and reliance on the representation involving a liability of $5 million by people whose particulars were not even known to him.  The defence is hardly credible as a matter of fact, besides being unsustainable in law. 

51.  The Defendant said he was not a habitual gambler.  That point was probably made to boost his case that he acted on the misrepresentation. But according to documentary record, he was a patron of three other major casinos in Macau at the material time, namely Sands, Galaxy and Marina Bay Sands.  The operator of Galaxy has filed legal proceedings against him in HCA 195/2013 for a dishonoured cheque in the amount of almost $2 million.  These facts further destroy the credibility of his defence.

52.  The factual assertions relied on in his defence are inherently incredible.  But even if they are proven, as a matter of law those assertions disclose no defence.   The defence has absolutely no merit.

Conclusion

53.  I find that the service of the writ on the Defendant was regular and hence the Default Judgment was obtained regularly. The Defendant is not entitled to have it set aside as of right.  He is required to show a meritorious defence.  He has failed miserably.

54.  In the circumstances, I have discretion to refuse to set aside the Default Judgment or to set it aside on conditions which will adequately protect the Plaintiff’s interest, such as requiring payment of the judgment sum into court and giving security for costs of the subsequent proceedings.  However, as the Defendant’s defence is so devoid of merit that he has absolutely no chance to resist an application for summary judgment if the Default Judgment is set aside, it would therefore be pointless to do so.  It would be a waste of time and costs and an abuse of proceedings to allow him to keep the action alive for the purpose of enabling him to pursue his hopeless defence and wasting the Plaintiff’s costs.  Accordingly, the Defendant’s Setting Aside Summons is dismissed.

55.  The Defendant is to wholly blame for not providing his true address in the Credit Agreement which led to the Default Judgment.  He also refused the Plaintiff’s offer to set aside the Default Judgment on terms similar to the above.  He has no defence and absolutely no basis to make the application.  I therefore order the Defendant to pay the Plaintiff’s costs of this application on an indemnity basis.

56.  As the Default Judgment still stands, there is no basis to discharge the Charging Order.  I therefore order that the Discharge Summons be dismissed with costs on indemnity basis.

57.  In view of the dismissal of the Setting Aside Summons and the Discharge Summons, there will be no need for an injunction order to be made.  I therefore make no order and adjourn the Injunction Summons sine die with liberty to restore to provide for the rather remote possibility that an injunction will be required as a result of an appeal from my order.  Costs of that summons are reserved.

58.  The Order 14 Summons was taken out by the Plaintiff in the event that the Default Judgment is set aside.  For the same reason as above, I make no order and adjourn the summons sine die with liberty to restore and with costs reserved.

59.  The Plaintiff should take the initiative in due course to have the Injunction Summons and the Order 14 Summons disposed of, presumably by consent, or, if necessary, to seek directions for the further conduct of those summonses.