Lee Wah Aluminium Kynar 500 Co Ltd v. O & T Contracting Co. Ltd.

DCCJ8639/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 8639 OF 2001

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D E C I S I O N

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1. This is an appeal by the Defendant against the decision of Master Chan who on 2 January this year made an order that the sum of $312,881.26, together with interest thereon paid into court by the Defendant, be paid out to the Plaintiff in partial satisfaction of the judgment dated 2 November 2001.

2. The Defendant seeks the following orders, a) the order of the Master be set aside; b) the Plaintiff's application for payment out be adjourned; and heard at the same time as the Defendant's application to set aside the default judgment; c) and there be a stay of execution.

3. Although this an appeal, it is a re-hearing of the matter again. Put shortly, whether this court should allow the sum of $312,881.26 be released to the Plaintiff.

4. The Plaintiff obtained a default judgment against the Defendant on the grounds that the Defendant had failed to comply with a court order to file its list of documents within a certain time and having obtained the judgment, the Plaintiff sought an application for payment out of the said sum of money.

5. The Plaintiff argues that there was undue delay on the part of the Defendant and there is no justification for the Defendant to oppose such an application.

6. The main argument advanced by the Defendant is that they have taken out a summons to set aside the judgment on 2 November 2001 and the hearing of which is set down on 30 January this year, and no prejudice will be suffered by the Plaintiff if an adjournment is granted and that the sum of money paid into court is secure, there is no risk that there will not be funds available to satisfy part of the default judgment in the event that the Defendant's application to set aside fails.

7. Up to today, there is no affirmation or witness statement filed by the Defendant in support of his application for setting aside the default judgment, to explain to the court as to the failure to comply with the unless order made by the court on 5 November 2001.

8. When I consider the subject matter of the appeal today, inevitably I have to consider the chances of success the Defendant might have in setting aside the judgment. Today, the Defendant's counsel told me that the Defendant had a defence to the action and also said that the default judgment was made as a result of the Defendant failing to produce its list of documents. It was not a judgment made on the merits.

9. It is right for the Defendant's counsel to say this, but in order to succeed in setting aside the default judgment, in my view, the Defendant at least has to show some reason that it is not just or equitable for the court not to set aside the judgment. Of course, I am not the judge to decide the application. It is a matter for the judge who hears the application to decide the matter. But as of today, in view of the matter before me, I cannot see any reasonable prospect of success of the Defendant in setting aside the judgment.

10. I see no reason to justify holding the money already paid in any further, and I see no reason to disturb the learned Master's decision. Therefore, I dismiss the appeal.

(Costs submissions)

11. Costs of this appeal be to the Plaintiff in any event to be taxed if not agreed.