Judgment in Default


1. Entering Default Judgment

  • Once litigation commences with the service of a writ on the defendant, a timetable for procedural steps is initiated for each party involved.

  • If the stipulated time for acknowledging service of the writ lapses without the defendant responding by returning Form 14, the plaintiff can apply for a judgment in default under Rules of the High Court (RHC) Order 13.

  • This process differs from the procedure outlined in RHC Order 19.

  • The plaintiff's application must be supported by an affirmation.

  • If the court approves the application, the resulting judgment is considered valid, legitimate, and enforceable.

  • The time allowed for acknowledging service of the writ depends on the method of service, whether it was served in person or by post.

2. Setting Aside a Default Judgment

  • The defendant can apply to set aside the default judgment as per RHC Order 13, rule 9.

  • This involves an inter partes summons supported by an affirmation, which details the circumstances and explains the reason for the non-response.

  • The defendant may argue that:

    • They never received the writ at all.

    • They received it, but there was a valid reason for not responding.

  • The procedure for setting aside a judgment under Order 13 depends on whether the judgment is irregular or regular.

3. Irregular Judgment

  • An irregular judgment occurs when the defendant did not receive notice of the proceedings or if the plaintiff made an error.

  • Examples of situations leading to irregular judgment:

    • The writ was sent to an incorrect address.

    • The defendant was out of Hong Kong when service was attempted via postal service.

  • An irregular judgment will be set aside without examining the merits of the proposed defense.

  • However, certain conditions may be imposed, as highlighted in L&M Specialist Construction Ltd v Wo Hing Construction Co Ltd (2000) (CA))

  • Any imposed conditions must be reasonable, as per Po Kwong Marble Factory Ltd v Wah Yee Decoration Company Ltd [1996].

  • A common condition is requiring the defendant to make a payment into court.





4. Regular Judgment

  • A regular judgment is established when the plaintiff is without fault, but the defendant knowingly failed to return Form 14.

  • To set aside a regular judgment, the defendant must demonstrate merit in their case, which is a significant challenge.

  • The court retains discretion in deciding whether to set aside a regular judgment.

  • Premier Fashion Wears Ltd v Li Hing Chung [1994] established that the defense must have a "real prospect of success," exceeding a mere "arguable defence."

  • If the judgment is set aside, the court can impose specific conditions on the defendant.