XCHRX BANK AUSTRIA AKTIENGESELLSCHAFT v. SUWARDI SUKAMTO

HCA 15309/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15309 OF 1998

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D E C I S I O N

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1. This is the Defendant's application for stay of execution pending the Defendant's appeal to the Judge in Chambers against the Master's order dated 13 July 2001. That order set aside the default judgment and the service of process in this action conditional upon the Defendant paying into Court the sum of US$1.228 million.

2. In short, I agree with the Defendant's argument that there is a special feature in this application, namely, the Master has set aside both the default judgment and the service of process as being irregular. I can only infer from that order that the learned Master must have either been satisfied with the Defendant's account of the irregular service or have reservations about the Plaintiff's account relating to that (or both). If that is the case (and whether this is so will have to be determined at the appeal hearing), there appears to be no basis for the learned Master to find that there were exceptional circumstances, such as the Defendant's conduct, to justify the imposition of a condition.

3. The Plaintiff criticises the Defendant for not filing any affirmation/affidavit evidence to support this application or for the purpose of showing merits in the Defendant's defence to the Plaintiff's claim herein. When the parties appeared before the learned Master, the Defendant's stance was that there was no need for the Court to go into the merits of the defence when service of process has been shown to be irregular. I understand from the parties that they were not asked by the Court to file affidavit evidence regarding this aspect (nor were they told that affidavit evidence would be relevant to the Court's discretion) and, as a result, none has been filed.

4. By reason of the matters aforesaid, I am satisfied that there should be an order in terms of paragraph 1 of the Defendant's summons (as amended).