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10.2
No practical difference
The traditional view is that the different tests do (and ought in principle to
) make a
practical difference.
Thus, the "real prospect of success" test for setting aside a
regularly obtained default judgment has been treated as requiring something more than
the "no arguable defence" test used in applications for summary judgment. Thus, in
Yeu Shing Construction Co Ltd v Pioneer Concrete (HK) Ltd [1987] 2 HKC 187 at
191, Silke VP encapsulated the principle governing the setting aside of such default
judgments as follows :-
"...... there must be an arguable case which has merits and which ought to be tried, there
being implied in that test, which goes further than the test applicable to O. 14 proceedings, a
reasonable prospect of success." (italics supplied)
Similarly, in Premier Fashion Wears Ltd v Li Hing-chung [1994] 1 HKLR 377 at 383,
Godfrey JA citing The Saudi Eagle (supra) stated :-
"This, I believe, shows that for the purposes of 0.13, r.9 it is generally not sufficient for a
defendant merely to show an arguable defence, although that alone would justify leave to
defend being given under 0.14. A defendant who seeks to set aside a regular judgment must
at least show that his case has a real prospect of success. To do so he must satisfy the court
that his case, and the evidence he has adduced in support of it, carries some degree of
conviction. It seems to me that unless potentially credible affidavit evidence from the
defendant has demonstrated a real likelihood that he will succeed on fact, he cannot have
shown that he has a real prospect of success."
Notes
In The Saudi Eagle (supra at 223), Sir Roger Ormrod said that "...... it would be surprising if the
standard required for obtaining leave to defend (which has only to displace the assertion that there is
no defence) were the same as that required to displace a regular judgment of the Court and with it the
rights acquired by the plaintiff."
As pointed out in the Interim Report §306, the House of Lords in Arthur JS Hall & Co v Simons
[2002] 1 AC 615, shared this view.
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