劉互慈 對 張永輝（張偉賢之遺產執行人）

DCCJ 2990/2020

[2022] HKDC 1156

香港特別行政區

區域法院

民事訴訟2020年第2990號

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判決書

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1.  在2021年4月22日，基於被告人沒有發出擬抗辯通知書，原告人登錄被告人敗訴的最終判決。在2021年10月19日，被告人擱置該最終判決的申請被梁少玲聆案官駁回。被告人不服並上訴。

2.  在2022年7月26日，本席頒下判決書（”該判決書”)，駁回被告人的上訴，並拒絕被告人要求停止執行該最終判決的申請 (“該判決”）。

3.  現在，被告人申請上訴該判決的許可。

4.  有關上訴許可申請的法律原則十分清晰。上訴許可只會在上訴有合理機會得直或有其他有利於秉行公正的理由下才會批准，儘管該上訴不須要有大機會得直，但該上訴得直的機會須要合理的，而不是空想的。

5.  就本案的背景、原告人的申索內容、程序的歷史、被告人擬抗辯的論點等等，本席在該判決書已一一闡述，本席在這裏不再重覆。在這判決書裏，本席會沿用在該判決書中的簡稱及代名詞。

6.  被告人在他於2022年8月22日存檔的誓章的證物附件中，提出12個擬上訴理由。現在本席逐一考慮。

7.  據我理解，擬上訴理由一投訴由2014年至2015年原告人聲稱借出的五個款項（在該判決書中的 Items 11至15)，不可能包括在2013年7月的承諾內，所以本席明顯出錯。就這投訴，被告人明顯地誤解了該判決書的內容。在該判決書的第37至48段，本席討論被告人擬提出的時限抗辯。在第37段裏，本席已交代該討論只涵蓋第1至第10個款項，而不包括第11至15個款項，因為第11至15個款項是在2014至2015年間借出，所以時限抗辯是不適用的。故此，本席認為這擬上訴理由沒有合理的成功機會。

8.  擬上訴理由二投訴本席不應該單憑原告人的斷言，就接納原告人聲稱將第5項及第6項款項借予死者。雖然就該兩項款項沒有直接存入死者銀行戶口的收條，但如本席在該判決書的第28段及29段提及，就該兩個款項原告人亦有提出其他的書面證據，包括原告人收取港幣450,000元借款的書面紀錄及在同日存入港幣150,000元至死者銀行戶口的存入單據，及原告人提取港幣25,300元的紀錄，而這些書面證供顯示的時間與原告人提出的案情吻合。因此，本席亦認為這擬上訴理由沒有合理的成功機會。

9.  擬上訴理由三投訴本席沒有考慮吳女士聲稱在死者的物業中的權益。如果吳女士聲稱她才是該物業的實質業權人，她應該採取合適的法律程序去處理原告人就該物業獲得的押記令。這事宜與被告人就原告人的申索有沒有成功機會的抗辯理由是兩回事，不應混淆而談，亦不是應否擱置該最終判決的考慮。故此，該上訴理由亦沒有合理的成功機會。

10.  擬上訴理由四至六投訴本席沒有合適地考慮被告人就代價 (consideration)、虛假陳述、欺騙、不當影響 (undue influence)、原告人應減輕損失責任 (duty to mitigate) 等議題提出”質疑”。本席在該判決書中的第59及60段說明被告人不可以只是提出”質疑”，就滿足他需要提出有成功機會的抗辯理由的責任。本席認為該些擬上訴理由沒有合理的成功機會。

11.  據我理解，理由七提出由於原告人與死者當時是男女朋友關係，所以有一個法律推定，推定他們沒有建立法律關係的意圖，所以，證明有該意圖的責任在原告方，而原告方沒有提出任何反駁該推定的證據。本席在該判決書的第59段已經交代案例，說明在法律上即使合約雙方有親密關係（例如夫妻關係或男女朋友關係），這並不代表雙方沒有建立法律關係的意圖。在本申請中，被告人援引兩個英國案例: Balfour v Balfour [1919] 2 K.B. 571 及 Merritt v Merritt [1970] 2 All ER 760。在這兩件案件中，英國的上訴庭都是根據在該案的個別事實情況作出判決，這兩案例沒有如被告人所指，建立或確認被告人聲稱的上述法律推定。本席認為該擬上訴理由沒有合理的成功機會。

12.  理由八投訴本席就被告人擬提出的時限抗辯的分析出錯，他的論點是還款日期的訂定或更改，一定要有”和解和清償” (accord and satisfaction)。就被告人已提出的時限抗辯的證據和論點，本席已經在該判決書裏第37至40段作出詳細分析，本席在這裏也不再重複。本席認為被告人該論點及上訴理據沒有合理成功機會。

13.  擬上訴理由九投訴本席不應該接納原告人新一輪的誓詞證供，因為原告人的新證供與舊證供有矛盾。這個所謂有矛盾的論點，完全基於被告人自己就原告人在2021年5月3日就申請押記令所存檔的誓章裏面的一句說話的解讀。本席在該判決書裏的第38段引述了該誓章的有關內容，並在第40段裏分析及判定本席不接納被告人的解讀。就接納該誓詞證供的其他投訴，本席在該判決書裏第44段至48段已闡明在2022年2月7日聆訊時所需要處理的申請及事項（包括被告方申請許可，存檔他單方面未經批准的誓章），及本席決定容許雙方再存檔多一輪誓章的原因。而當時被告方有律師代表，亦同意該安排，及後亦因應該安排存檔被告方新一輪的誓章證供。而且，本席亦有考慮被告方新一輪的誓章證供以達至該判決。本席認為這些投訴沒有道理，亦沒有合理的成功機會。

14.  擬上訴理由十投訴 ”程序不公正或司法不公”。就這投訴，被告人提出不同程序上的疑問。被告人的代表律師就上訴所提交的書面陳詞，沒有指出就登錄該最終判決上有任何程序上的問題，而只是作出一些所謂”不公平”的投訴。在該判決書中，本席已經考慮及審視程序上的歷史，及原告人申請該最終判決的基礎，本席未有察覺就登錄該最終判決上有任何程序上的問題。本席認為該上訴理由沒有合理的成功機會。

15.  擬上訴理由十一投訴本席在該判決書中達至這結論 - 就是在該些款項借給死者的時段，沒有任何證據顯示有任何”買賣、投資、或托人處理交易等等”時，本席未有參考吳女士提出的一份文件裏提及有一張港幣200,000 元的發票，而這發票亦可能是來自買賣。這份文件在審訊文件夾 [B142] 頁，是死者手寫一張日期為2001年6月11日的字據，交代怎樣處理死者的不同事宜。如上述說，該文件是2001年6月份的文件，距離原告人借款的事 (在2013年至2015年) 達12年之久。明顯地，該文件對本案的案情沒有參考價值。本席認為該上訴理由沒有合理的成功機會。

16.  擬上訴理由十二提出本席沒有正視被告人的論點，就是就本案的處理，應該有 ”疑點利益、懷疑態度，RHC O.76 和 O.80 的精神”。本席認為這些論點毫無法律根據。本席認為該上訴理由沒有任何成功機會。

17.  基於上述所說，被告人的擬上訴沒有合理的成功機會，亦沒有因為有其他有利於秉行公正的理由而需要聆聽該擬上訴。故此，本席拒絕被告人的上訴許可申請。本席亦以暫准方式命令被告人需支付原告人就本次申請的訟費。如果任何一方想改變本暫准命令，需於14日內提出，否則該暫准命令會成為絕對命令。

原告人：由曾重瑜律師事務所延聘的關宇軒大律師代表

被告人：沒有律師代表，並親自應訊

DCCJ 2990/2020

[2022] HKDC 768

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2990 OF 2020

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BETWEEN

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DECISION

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1.  This is the defendant’s appeal against the order of Master Jocelyn Leung dated 19 October 2021 (“the Subject Order”) dismissing the defendant’s application by summons dated 22 July 2021 (“the Setting Aside Summons”)

(a) to set aside the default judgment entered against him on 22 April 2021 upon default of filing an Acknowledgment of Service and Notice of Intention to Defend; and

(b) to stay the execution of the default judgment.

2.  As the originally hearing date scheduled on 8 April 2022 would have fallen within the General Adjournment Period announced on 4 March 2022 due to the Covid-19 pandemic, and considering it appropriate, this appeal was directed to be disposed of on papers.

3.  Both parties hitherto were not legally unrepresented, but they are now. In this appeal, Mr Eugene Kwan and Mr Andrew H P Lau, both of counsel, respectively represented the plaintiff and the defendant.

4.  It is trite that an appeal from a Master to a Judge is dealt with by way of an actual rehearing of the application which led to the order under appeal. I therefore would treat the Setting Aside Summons as if it came before me for the first time.

The plaintiff’s pleaded claim and the procedural history

5.  On 18 June 2020, the plaintiff, acting in person, issued the Writ in this action against Mr Cheung Wai Yin (“the Deceased”). The Writ was endorsed with a one-page Statement of Claim in Chinese.

6.  The plaintiff’s claim is a straight forward one for the repayment of loans advanced to the Deceased. It pleaded that from 2013 to 2015, the plaintiff lent to the defendant, her then boyfriend, a total of HK$1,005,300 on 15 occasions. The particulars were pleaded, which I reproduce in the table below (“the Table”).

	借款日期	借款方式	借款款額 (港幣)
1.	12/4/2013	戶口轉賬	$53,000
2.	18/4/2013	戶口轉賬	$200,000
3.	26/4/2013	戶口轉賬	$50,000
4.	26/4/2013	戶口轉賬	$50,000
5.	3/5/2013	現金	$300,000
6.	24/5/2013	現金	$25,300
7.	28/6/2013	戶口轉賬	$100,000
8.	12/7/2013	戶口轉賬	$80,000
9.	18/7/2013	現金	$30,000
10.	22/7/2013	戶口轉賬	$103,000
11.	2/8/2014	戶口轉賬	$2,000
12.	24/1/2015	戶口轉賬	$3,000
13.	31/1/2015	戶口轉賬	$2,000
14.	31/3/2015	戶口轉賬	$3,000
15.	16/2/2015	戶口轉賬	$4,000

7.  The plaintiff further pleaded in her Statement of Claim that in 2013 the Deceased orally promised her that he would repay her within a year, that every year he said he would repay her, and over the phone the defendant said he was sick, and he would repay her as soon as possible, and that she waited one year after another, for 7 years now altogether and the defendant has not repaid her at all (the exact words pleaded in Chinese were: “被告人在2013口頭承諾一年內會還錢本人，每年都話會還錢給我，電話中說他因生病，會盡快還錢給我。一年又等一年，借了7年錢給他，冇要求收利息，至今一分一毫未還錢給我。所以我要追回全數如上述所有款項”).

8.  The Deceased in fact had unfortunately passed away earlier in February 2020. The plaintiff through Whatsapp messages sent from the Deceased phone number and the bailiff serving the Writ on the defendant at his residential address in early September 2020 were both told about the passing of the Deceased.

9.  By summons issued on 19 November 2020 (“the Amendment Summons”), the plaintiff sought to amend the Writ to sue the personal representatives of the Deceased’s estate.

10.  At the first hearing of the Amendment Summons held on 15 December 2020, the plaintiff and the present defendant Cheung Wing Fai, the Executor of the Deceased’s estate, attended.

11.  Upon the plaintiff filing a further affirmation and revising the draft Amended Writ to properly name the defendant as Executor of the Deceased’s estate, another Master on 5 February 2021 gave leave to amend the Writ per the revised draft.

12.  On 18 February 2021, the plaintiff served the Amended Writ to the defendant by registered post.

13.  As no Acknowledgment of Service was filed by the defendant, on 12 April 2021 the plaintiff applied for default judgment, which, as mentioned, was entered on 22 April 2021 (“the Default Judgment”).

14.  The Default Judgment was served on the defendant by registered post on 27 April 2021.

15.  On 3 June 2021, the plaintiff obtained a Charging Order: Notice to Show Cause charging the flat known as Flat G, 2/F of Tower 4, Wing Fok Centre, 1 Luen Chit Street, Fanling which was registered in the Deceased’s sole name.

16.  On 22 July 2021, the defendant took out the Setting Aside Summons. In respect of the Setting Aside Summons, both the defendant and the plaintiff have respectively filed 2 short affirmations. As both parties in this action have filed quite a number of affirmations, I will refer to them by their dates. The defendant’s 2 affirmations were respectively filed on 22 July 2021 and 2 August 2021 (respectively “D-2021Jul22 Aff” and “D-2021Aug02 Aff”), while the plaintiff’s were respectively filed on 26 July 2021 and 1 September 2021 (respectively “P-2021Jul26 Aff” and “P-2021Sep01 Aff”).

17.  The Setting Aside Summons was heard substantively on 19 October 2021. Both parties appeared in person. At the conclusion of the hearing the Subject Order was made.

18.  On 1 November 2021, the defendant filed the Notice of Appeal through his solicitors. On 9 November 2021, the said Charging Order was made absolute.

19.  On 7 February 2022, I gave leave to the parties to file further affirmations as both parties have since become legally represented and would like to file properly prepared ones. The defendant filed his on 21 February 2022 (“D-2022Feb21 Aff”), a reply affirmation of his dated 16 March 2022 (“D-2022Mar16 Aff”) and also filed an affirmation of Madam Ng Siu Fong dated 1 November 2021 (“NSF-2021Nov01 Aff”), which pursuant to my Order given on 7 February 2022, was treated as filed with the said leave. The plaintiff filed hers on 2 March 2022 (“P-2022Mar02 Aff”).

The defendant’s explanation for not filing the Acknowledgment of Service in time; the Default Judgment regularly entered

20.  The defendant does not dispute that the sealed copy of the Amended Writ has been served on him by post. Indeed, in D-2021Jul22 Aff[1] he expressly affirmed that he received it on 18 February 2021. There was therefore due service of the Amended Writ on him.

21.  The defendant explained in D-2021Jul22 Aff that when he received the Amended Writ on 18 February 2021, he saw that there were amendments in red, like the draft Amended Writ enclosed with the Amendment Summons which he received by post on 23 November 2020. He therefore mistakenly thought that the Amended Writ was a draft, and he did not file the Acknowledgement of Service to respond.

22.  Be that as it may, the defendant’s mistaken belief clearly did not affect the validity of the service. In the result, the Default Judgment was regularly obtained.

Legal principles guiding the setting aside of a regularly entered default judgment

23.  The relevant principles are trite and well settled (§§13/9/12 to 13/9/17 Hong Kong Civil Procedure):-

(a) The power to set aside a regularly entered default judgment is discretionary and such power is unconditional;

(b) The major consideration is whether the defendant has shown a defence on the merits, as the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication;

(c) The court will also have regard to all relevant circumstances. The usual factors are: why the default occurred, the defendant’s conduct after he had notice of the proceedings, any prejudice that would be caused to the plaintiff or to third parties if the judgment were to be set aside. These other factors will then have to be weighed against the dominant factor of the merits in order to see where the justice of the case lies;

(d) On merits, the defendant must show that he has “a real prospect of success”. To do so, he must satisfy the court that his case and the evidence that he adduces in support of it is potentially credible and carries some degree of conviction. Thus, the court must form a provisional view of the probable outcome of the action. However, where the ultimate outcome would depend on whose evidence is believed and no provisional view of the probable outcome can be formed without a trial, the appropriate test to determine whether the defendant has a real prospect of success is whether the defence “could well be established at trial”;

(e) Exceptional circumstances have to be shown before a court will refuse to set aside a default judgment where a real prospect of success in his defence has been demonstrated.

(f) Order 13 rule 9 gives the court the power to impose terms when setting aside the default judgment, such as requiring the defendant to bring the money into court, to give security of the plaintiff’s costs or to pay the plaintiff’s costs; and

(g) Where appropriate, the court may set aside the default judgment as to part only and allow the rest to stand.

The plaintiff’s case and her supporting documentary evidence

24.  The plaintiff’s case in gist is this.

25.  She acquainted the Deceased in 2012. The Deceased then said that he owned and operated an estate agency company and an interior design company, that he held a Master degree, that he was unmarried and he had just broken up with her girl friend. Not long after, the plaintiff and the Deceased developed a romantic relationship. In November 2012, the Deceased claimed that he had mortgaged his home in Fanling to a friend to secure a loan of HK$2,000,000 to develop a very promising real property business in Korea. He said he travelled to Korea in January 2013 and had signed an agency contract with a developer there. He sent pictures of the trip to the plaintiff[2]. Since then, he had been sharing with the plaintiff his business plan.

26.  Not long after, the Deceased said the HK$2,000,000 he borrowed from a friend was about to be used up. He then asked the plaintiff for loans. He said that once the real property in Korea was sold, he would be able to repay the plaintiff.

27.  Between 12 April 2013 to 22 July 2013 and on 10 occasions, the Deceased persuaded the plaintiff to lend various sums to him, being items 1 to 10 particularized in the Table. The fact that these 10 sums had been paid to the Deceased was well substantiated by documents the plaintiff produced:-

	借款日期	借款方式	借款款額 (港幣)	Transaction	Hearing bundle pages
1.	12/4/2013	戶口轉賬	$53,000	Cash deposit into Chong Hing Bank account no. 296-10-100174-1 held in the name of the Deceased (“Deceased’s CHB Account”)	Deposit Slip at upper half of [63-14]
2.	18/4/2013	戶口轉賬	$200,000	Transfer from the plaintiff’s Chong Hing Bank Account No. 262-20-607979-6 (“P’s CHB Account”) into Deceased’s CHB Account	Deposit slip at lower half of [63-14]
3.	26/4/2013	戶口轉賬	$50,000	Transfer from P’s CHB Account into Deceased’s CHB Account	Deposit Slip at upper half of [63-15]
4.	26/4/2013	戶口轉賬	$50,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at lower half of [63-15]
5.	3/5/2013	現金	$300,000
6.	24/5/2013	現金	$25,300
7.	28/6/2013	戶口轉賬	$100,000	Transfer from P’s CHB Account into Deceased’s CHB Account	Deposit Slip at upper half of [63-16]
8.	12/7/2013	戶口轉賬	$80,000	Transfer from P’s CHB Account into Deceased’s CHB Account	Deposit Slip at lower half [63-16]
9.	18/7/2013	現金	$30,000	ATM transfer from P’s CHB Account to Deceased’s CHB Accounts	Bank statement of Deceased’s CHB Account dated 1 August 2013 at [253]
10.	22/7/2013	戶口轉賬	$103,000	Transfer from P’s CHB Account into Deceased’s CHB Account	Deposit Slip at lower half of [63-17]
Total:			$991,300

28.  In respect of item 5 above, the plaintiff produced copy of a cheque issued by Messrs Wong & Co solicitors to her dated 3 May 2013 in the sum of HK$450,000[3] and a deposit slip of the same day depositing cash of HK$150,000 into P’s CHB Account[4]. Her case is that the cheque was a loan she obtained from Konew Finance Express, which cheque she cashed the same day in the presence of the Deceased. She handed HK$300,000 cash to the Deceased as a loan and deposited HK$150,000 into P’s CHB Account to meet the monthly repayments due in respect of the other loans.

29.  In respect of item 6 above, the plaintiff’s case is that on 24 May 2013, the Deceased called her saying that he had to go to Shenzhen but was short on RMB and asked her for a loan. She then withdrew HK$25,300 from P’s CHB Account, changed it into RMB and handed the same to the Deceased[5] in an MTR station. Therefore, unlike the other loans, there was no deposit slip in relation to this loan, but the withdrawal of HK$25,300 was recorded in her bank passbook[6].

30.  The plaintiff’s case is that she herself did not have the money to lend to the Deceased. She had to take out altogether 7 loans from various credit card accounts, banks and money lenders (among them the said loan from Konew Finance Express) between April to July 2013 totalling HK$923,000. These loans were listed in a table[7], and the loan agreements and related documents were also produced[8].

31.  The plaintiff’s evidence is that there was no repayment due date fixed or agreed between her and the Deceased regarding these loans. She was told by the Deceased that once there was a first sale of the real property in Korea, he could be able to repay her. However, by July 2013, the plaintiff was feeling the growing financial pressure. She asked the Deceased when he could repay her, and the Deceased then promised her that he would repay the loan in a year[9].

32.  The physical health of the Deceased started to deteriorate in 2014. Since August 2014, the Deceased had borrowed the following sums from the plaintiff to meet his medical expenses.

	借款日期	借款方式	借款款額 (港幣)	Transaction	Hearing bundle pages
11.	2/8/2014	戶口轉賬	$2,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at upper half of [63-17]
12.	24/1/2015	戶口轉賬	$3,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at lower half of [63-18
13.	31/1/2015	戶口轉賬	$2,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at upper half of [63-18]
14.	31/3/2015	戶口轉賬	$3,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at upper half of [63-19]
15.	16/2/2015	戶口轉賬	$4,000	Cash deposit into Deceased’s CHB Account	Deposit Slip at lower half [63-19]
Total:			$14,000

33.  Having received no repayment from the Deceased, the plaintiff had to obtain loans from her sister and to mortgage her home to pay off the aforementioned credit card loans and other loans.

34.  The plaintiff had telephoned the Deceased numerous times to chase after the repayment. Each time, the Deceased promised he would try to come up with the money to repay the plaintiff. The plaintiff then waited, one year after another. Finally, on 18 June 2020, the plaintiff issued the Writ and commenced this action.

The defendant failed to raise any meritorious defence

a. Affirmation of Madam Ng Siu Fong

35.  In NSF-2021Nov01 Aff, Madam Ng, who was 70 years old at the time she made that affirmation, gave a chronological account of how she met the Deceased in 1986 and how they became a couple, albeit not having gone through the formality of marriage, and how the Deceased got sick, being treated and eventually passed away in February 2020. She then expressed surprise and disbelief that the Deceased had a romantic relationship with the plaintiff and that the Deceased had allegedly borrowed such a substantial sum of money from her.

36.  Clearly, there was nothing in NSF-2021Nov01 Aff that raised a defence. Of note, rather, is that Madam Ng said that the Deceased was not a person of means; nor was her, as she had been declared a bankrupt and remained so until 2005[10].

b. Limitation defence

37.  The defendant now contends that there is a meritorious limitation defence as the loans, being items 1 to 10 in the Table, were due and payable on 31 December 2013, and therefore the 6-year limitation period expired by the end of December 2019 and therefore the Writ was issued outside the limitation period.

38.  The only basis the defendant repeatedly emphasized on to say that the due date was 31 December 2013 was part of one sentence (underlined below) singled out by him from a paragraph in the plaintiff’s affirmation filed on 3 May 2021, when she was acting in person, to apply ex-parte for the Charging Order Nisi:-

“本人是原告人劉互慈在2013年至2015年期間合共借了HK$1,005,300.00 - 分12次透過銀行戶口轉賬和給被告人張偉賢 (已故) 的 現金3次，合共15次，給男朋友張偉賢(已故)在在海外房產發展，在他不斷哄騙本人去不同銀行借貸，繼而將錢給他發展生意，他當時承諾會在2013年償還錢給本人。我不是一個有錢人，我是一個單親女士不能夠償還外面借出銀行、財務的債項！自己曾經輕身 [sic]，被告人亦都知道！現在按揭銀行的錢，姊妹的錢都未能償還得完，每月要還錢事情，想起這件事心如刀割，至今未能走出陰霾！張偉賢（已故）口頭承諾話會盡快努力還錢本人，一年又等一年，一分一毫我都未收過，所以我才入稟區域法院追討他欠我所有款項如上述顯示。”

39.  The defendant contends that as the year 2013 was the period within which the Deceased “promised” to repay, the last day of 2013 therefore was the due date from which date the limitation would begin to run.

40.  For all the reasons expressed below, I am of the clear view that at trial there is no real prospect that the defendant could establish that 31 December 2013 was the date all these loans were due:-

(a) Firstly, the defendant obviously has taken that part of one sentence out of context. In that 4-line sentence beginning and ending with “本人”, the plaintiff was explaining how she came to make those loans to the Deceased, particularly that she was hoaxed (哄騙) into making them; and the fact that the Deceased promised to repay within 2013 was part of his hoax. Thus, she has never said there that 31 December 2013 was the due date she had agreed.

(b) Secondly, it is trite and clear law that a debtor cannot unilaterally fix or alter the due date for repayment under a loan by his own “promise to repay within a certain time” and to the date on which he said he would repay. If there was a clear due date fixed by the contract, the date, just like other contractual terms, can only be varied by agreement. If there was no due date expressed in the contract, then as a matter of construction of contract the court will ascertain what was indeed agreed in that regard. In any case, the due date cannot be fixed or changed by the unilaterally action or words of the debtor.

(c) Thirdly and rather, consistently from what was pleaded in the Statement of Claim to what was affirmed to in all the affirmations filed by the plaintiff, including the very affirmation from which the defendant extracted that part of the sentence, the plaintiff had been saying to the effect that she called the Deceased thereafter on numerous occasions asking for repayment, and the Deceased each time promised her that he would try to come up with the money to repay and based on such promise the plaintiff waited year after year. Based on such consistency and such version being very inherently probable, I think it very likely that it will be accepted at trial that the due date has thereby been varied by agreement.

(d) Fourthly and alternative, in P-2022Mar02 Aff the plaintiff affirmed to an occasion in July 2013 when she felt so much financial pressure that she asked the Deceased when he could repay her, and the Deceased said that he could do so within a year. That is what the plaintiff also pleaded in the Statement of Claim. This version of conversation seems to me very inherently probable and would likely be accepted at trial. Thus, there is a very real prospect that at trial the court would find that the plaintiff and the Deceased had thereby agreed that the due date would be July 2014, being one year from the time of the conversation, as an alternative to the position in (c) above.

(e) Competing with these 2 versions, the defendant’s contention based entirely on such part of the said sentence taken out of context from an affirmation filed to apply for a Charging Order, in my clear view, has little prospect of being accepted at trial.

41.  Before I leave this topic, I have to deal with two matters gravely misconceived by the defendant.

42.  The first matter is this. In §1 of Mr Lau’s written submissions dated 31 March 2022 he said that

“1. In the last hearing of 7/2/2022, it was determined that :

1.1 The accrual date of the “debt” is [sic] on 31/12/2013, the latest upon the Plaintiff’s own evidence in an ex parte affirmation of 3/5/2021.

1.2 Unless the Plaintiff can adduce evidence to prove that there is an acknowledgment of “debt”, the accrual date of 31/12/2013 shall stand.

…”

43.  Though challenged and reminded by Mr Kwan, Mr Lau insisted that there was such alleged “determination” by this court, and made a number of aggressive forensic submissions based on the same.

44.  On 7 February 2022, this court heard the defendant’s summons dated 4 February 2022.

45.  What happened was that when the defendant filed his Notice of Appeal on 1 November 2021, he at the same time filed without leave 2 substantial affirmations in support. The Notice of Appeal itself asked that leave be given to file those 2 affirmations in the substantive hearing of the appeal itself. All these were clearly procedurally wrong. The defendant therefore issued the said summons seeking retrospective leave to file and adduce those 2 affirmations as new evidence for the appeal.

46.  At the hearing, I commented that the affirmations filed by the parties hitherto were filed in person without the benefit of the present legal representation and that the defendant’s affirmations apparently merely tried to raise some “doubts” or “reasons” why the claim should go to trial but not really raising any substantive defence. Having heard counsel and in order to give the defendant a full opportunity to present his side, I gave retrospective leave to file NSF-2021Nov01 Aff and ordered that the other affirmation (of the defendant) be expunged from the court file but gave leave to the defendant to file another affirmation afresh; and then gave consequential leave to the plaintiff to file hers in response. Thus and the circumstance, this court has not made any “determination” whatsoever on any substantive matter.

47.  With the greatest respect, Mr Lau has completely mistaken.

48.  The second matter is this. Mr Lau submitted that what the plaintiff deposed in P-2022Mar02 Aff as to her conversation with the Deceased in July 2013 (see paragraph 31 above) was “new evidence” contravening the approach of Ladd v Marshall and was inadmissible, and that such “new evidence” was contradictory to what she had deposed in the plaintiff’s affirmation filed on 3 May 2021, and so on. As said, this court has given leave on 7 February 2022 to parties to file another round of affirmation, therefore Mr Lau’s said submission was completely misconceived, quite apart from, as I find, the fact that there was no such contradiction as he now contends.

c. The court should exercise caution when a claim is made against a deceased person who cannot now give his version of events or to testify against it

49.  I agree with the defendant that the court should approach the plaintiff’s claim with caution and care. It is well settled that “in cases involving claims against an estate of a deceased person who cannot give evidence against the claim, the court is enjoined to approach the claimant’s story with suspicion” (per Fok JA in Re Silver Bell Uniform Ltd [2012] 1 HKLRD 719 at §27) and also “it is common sense that all claims against the estate of a deceased person which had not been put forward whilst they were still living fall to be scrutinized with considerable care, for the obvious reason that the other party to the agreement is in the nature of things unable to give his or her version of events” (per Walton J in Re Gonin (Deceased) [1979] Ch 16 at p 32).

50.  However, it is not a rule of law that there must be corroborating evidence for a claim against an estate of a deceased person (Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 and Re Silver Bell Uniform Ltd). Moreover, there is no rule (and the defendant has not submitted that there is any) that a default judgment cannot be given on such a claim or, if given, would have to be set aside to send the claim to be proved at trial. Rather, the court is to be mindful of the fact that the claim has not been made while the deceased was alive and is now made against the estate of a deceased who is not in a position to testify to his version, to scrutinize the claim with considerable care, and to weigh these matters in together with the other factors when exercising its discretionary power as to whether to set aside a default judgment. This I propose to do.

51.  Having examined the plaintiff’s claim, particularly all her supporting documentary evidence, I turn to examine the defendant’s.

52.  Before filing D-2022Feb21 Aff, the defendant, as he said there, has tried to gather and collate whatever documents or information he could as son and Executor of the Deceased to contest the plaintiff’s present claim. He produced a number of business registration records showing that the Deceased at some point had been the owner of a number of businesses, including an estate agency and an interior design company.

53.  The defendant also contacted the banks and obtained bank statements from them. He found out that the Deceased held 3 bank accounts and exhibited copies of their bank statements or bank passbooks. Two of them were savings accounts that did not have any transaction in the period relevant to this action. Indeed, there were only negligible amounts remained in these two accounts. The third was Deceased’s CHB Account, which was a current account.

54.  The defendant produced the monthly statements of Deceased’s CHB Account as to the months of May, July and August 2013, September 2014 and February to April 2015 (“the Bank Statements”). To the extent of the relevant monthly periods covered by the Bank Statements, it is shown that the loan amounts alleged in the plaintiff’s claim were indeed transferred or deposited into that account as the plaintiff said and as her documents show.

55.  While the defendant expressed doubt that the amounts so deposited or transferred by the plaintiff might well be for purposes such as sale and purchase, investment, carrying out transactions on behalf of others (“買賣、投資、或托人處理交易等等”), other than that of loans, as alleged by the plaintiff[11], the defendant did not say what the other purposes relating to these 10 deposits by the plaintiff in such short span of time were. Indeed, the Bank Statements all showed that substantial cash withdrawals, usually in amounts roughly corresponding to the amounts deposited by the plaintiff, were made immediately or shortly after the deposits or transfers in were effected. Indeed, on the face of the Bank Statements, one simply cannot find any entries that indicate that there were any business activities going on, whether related to these deposits made by the plaintiff, or related to the agency business in Korea claimed by the Deceased, or otherwise.

56.  Moreover, the defendant was unable to produce even one page of documentary evidence suggesting or showing any “買賣、投資、或托人處理交易等等” or other business transactions undertaken by the Deceased around the time of the plaintiff’s said 10 deposits. It seems to me most extraordinary if any business transactions were in fact made relating to these deposits that the Deceased would have left no trail of documentary evidence whatsoever.

57.  Also importantly, the Bank Statements did not show any entries by way of deposits which showed that the Deceased was earning any income through any employment or by operating any businesses. Equally, in all the affirmations filed by the defendant, there was no evidence that the Deceased was gainfully employed or engaged and as to what amounts he had been earning. There was simply no documentary evidence proffered by the defendant relating to any gainful economic activities undertaken by the Deceased at the material times. There was also no evidence that showed, nor is it the defendant’s case, that the Deceased had any substantial savings. The picture thus presented by the totality of the evidence now before me points to the fact that the Deceased had been living on the amounts provided by the plaintiff.

58.  Viewing the matter and all available evidence before me even with such due caution and care, I cannot find anything of substance that justify setting aside the Default Judgment and sending the claim to trial.

d. Other miscellaneous “doubt” and matters

59.  The defendant also questioned whether the payments made by the plaintiff to the Deceased were gifts, or whether the terms of the loans were so uncertain as to be unenforceable in law, or whether there were considerations in support of the loans, or whether there were intentions to create legal relationship in relation to these loans. These only need to be stated to be dismissed. It is clear that there is nothing to stop a husband and wife, or those in a romantic relationship, from entering into an agreement or a transaction with an intention to create a legal relationship (Granatino v Radmacher [2011] 1 AC 534 at §142). The amounts lent were clearly considerations in support of the loans which would not be enforceable simply because a due date had not been expressed. There was no evidence nor any material to even suggest that these payments were gifts. There is ample evidence to support the plaintiff’s case that she herself took out a number of loans in order to obtain funds to lend to the Deceased.

60.  In any case, under settled law, the clear onus to set aside a regularly entered default judgment is on the defendant to raise a defence that has a real prospect of success. Merely raising a cloud of “doubts”, as the defendant is doing here, falls far short of meeting that onus.

61.  Mr Lau also said, without citing any authority, that the Writ herein issued as against the Deceased was a nullity. With respect, that was clearly wrong in view of O 15 r 6A(3) which provides that “An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement, and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1) as the case may be, whether or not a grant of probate or administration was made before its commencement”.

62.  In Mr Lau’s written submissions, there were also a number of criticisms made against the application and validity of the Charging Order Nisi and Absolute obtained herein by the plaintiff. They are simply irrelevant for the purpose of this appeal. There were also a lot of criticisms here and there made by the defendant himself and Mr Lau against the plaintiff’s conducts in this action. I do not find any of them easy to understand, or of any substance, or relevant for the present purpose.

63.  The defendant has explained in some detail the steps he had taken after receiving notice of this action, including seeking legal advice and such. As I conclude that there is no meritorious defence shown, I do not find it necessary to discuss or evaluate the defendant’s conducts.

Disposal

64.  In the premises, I find that it has not been shown by the defendant that there is any defence that has a real prospect of success, or that there are other reasons or considerations for this court to exercise its discretion to set aside the Default Judgment. Accordingly, I dismiss the defendant’s appeal with costs to the plaintiff with certificate for counsel, to be taxed if not agreed. This costs order is an order nisi which shall become absolute within 14 days from today unless any party applies to vary within that time.

65.  For the avoidance of doubt, I also hereby lift the interim stay I previously imposed pending the outcome of this appeal on the Charging Order Absolute herein dated 9 November 2021.

66.  Lastly, I thank counsel for their assistance.