Originating process – Defendant out of jurisdiction – Whether service should be dispensed with when writ could not be renewed – Whether defendant submitted to jurisdiction by seeking annulment of bankruptcy order on ground of foreign residency – Whether defendant submitted to jurisdiction by defending interlocutory injunction proceedings

BANK OF CHINA (HONG KONG) LTD V REGAL LINK INVESTMENT LTD [2009] 3 HKC 411

Court of Appeal
Civil Appeal Nos 305, 306, 307 of 2008
Yuen and Hartmann JJA
26 February, 9 March 2009

George Chu (Michael Pang & Co) for the appellant.
Eva Sit (KW Ng & Co) f or the respondent.

The appellant appealed against the orders made by Chu J on 4 September 2008 (see Bank of China (Hong Kong) Ltd v All World International Ltd [2008] 6 HKC 348) dispensing with service on her of three writs. In 2008, the bankruptcy order was annulled on grounds of foreign residency and invalidity of service of writs. Subsequently, the respondent obtained an injunction order against the appellant, restraining her from taking custody of the assets which had been placed in the Official Receiver’s control. The respondent further obtained court orders to set aside the default judgments, extend the validity of the writs, and dispense with service of the writs. The appellant appealed against the last two orders before Chu J, who set aside the order to renew the writs but dispensed with service in the exercise of inherent jurisdiction. The applicant now appealed against the decision to dispense with the service of writs.

Held, setting aside the orders dispensing with service of the writs:

Chu J’s orders were made in the exercise of her discretion. An appellate court would not interfere with the exercise of discretion unless it was satisfied that a judge had erred in law or in principle, or if she had taken into account some matter which she should not have taken into account, or had left out of account some matter which she should have taken into account, or if the decision was so plainly wrong that it must have been reached by a faulty assessment of the weights of the different factors which had to be taken into account.

Where a writ was served out of the jurisdiction without leave to do so having been obtained, the court could, in exceptional circumstances, exercise its discretion to validate the purported service. This approach must apply with greater force to a situation where the writ expired for service. Service of the writ should not be dispensed with in an attempt to circumvent the requirement of leave if leave to serve out would not be given retroactively.

The appellant did not submit to Hong Kong jurisdiction when she applied to annul the Bankruptcy Order on the ground of foreign residency, or when she merely took defensive action in interlocutory injunction proceedings brought by the respondent.