LIGHT WALTER WAI TAK v. LEUNG HON KOW

HCA 252/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 252 OF 2010

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D E C I S I O N

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1. This is the plaintiff’s application to enter judgment against the defendant in default of defence.

2. When the plaintiff took out the application last December, the defendant had not acknowledged service of the writ and was in default of defence.  Since then, the defendant has given notice of intention to defend and filed a defence on 4 June 2012.

3. Generally speaking, a defence served after expiration of the prescribed time but before judgment has been given cannot be disregarded and will prevent the plaintiff from entering judgment, but the defendant may be ordered to pay the costs occasioned by his delay: see Hong Kong Civil Procedure 2012, paragraph 19/7/4.

4. As such, the application is overtaken by event and judgment may not now be entered against the defendant in this action.  I therefore make no order on the plaintiff’s summons but direct that the costs of the application be paid by the defendant to the plaintiff in any event as that was indeed caused by the defendant’s delay.

5. The plaintiff should now refer to Order 18, rule 3 and consider whether to file a reply.  Thereafter, both parties should follow the case management procedure set out in Order 25 and Practice Direction 5.2.

6. This is not a simple case.  It concerns the plaintiff’s entitlement under the will of the plaintiff’s late father or the defendant’s late husband and allegations of breach of fiduciary duties on the part of the defendant as one of the co-executors named in the will.  It involves construction of the will, administration of the estate, assets located overseas, and the interest of the other beneficiaries.  Both parties are currently unrepresented.  They should consider taking legal advice before proceeding with this action.

7. I further direct my clerk to send a copy of this decision by airmail to the defendant at the overseas address for service provided in her acknowledgement of service.