The Defendant Skipped the Hearing. You Still Have to Prove the Debt

First: is the defendant absent, or simply unserved?

The Tribunal does not treat these as the same thing, and neither should you. When you file, the Registrar fixes a hearing date not later than 60 days after filing, and the Bailiff Section sends your Form 1 (Title to Claim), Form 2 (Form of Claim) and Form 3 (Notice of Place and Day Fixed for Hearing) to each defendant by ordinary post.

Section 14(2) lists the ways service may be effected: delivering the documents to the defendant personally, leaving them with someone at the defendant's last known place of residence or business, posting them to that address, or any other manner the Registrar directs. The address you give must be a Hong Kong address — the Judiciary's guidance is explicit that a P.O. Box or a care-of address is not acceptable.

If the claim cannot be served, you will be asked at call-over to supply the defendant's correct address and, if necessary, to verify it. The Tribunal may allow other means of service. If in the end the claim still cannot be served, the Tribunal cannot deal with the claim. An empty chair on a bad address is not a default; it is a case that has not started.

The call-over: where the case is classified

The first hearing is the call-over. A Tribunal Officer interviews the parties, classifies the case as defended or undefended, and tries to bring about a settlement. If the defendant has not appeared, the Judiciary's pamphlet on what a defendant may do says the claimant may apply for judgment against the defendant provided he can satisfy the Tribunal of the claim and that the notice of hearing has been served.

Two things follow. The application is yours to make — the Tribunal will not enter judgment unasked. And satisfy the Tribunal of the claim means the hearing does not shrink to a formality because nobody is arguing back. Whether the adjudicator deals with it there and then, or adjourns so you can prove the claim properly, is for the adjudicator; the Judiciary's guidance notes a hearing may be adjourned where further evidence is needed.

Section 17: what 'judgment in default' actually requires

The statutory wording is short enough to quote in full. If a defendant fails to appear at the hearing, the claimant may apply for judgment. The application may be supported by an affidavit verifying facts relied on. The Tribunal shall, if it is satisfied that the claimant is entitled to judgment, order judgment to be entered. And judgment shall not be entered unless the Tribunal is satisfied that the written claim and notice of hearing were served under section 14(2).

So there are two gates, and you carry both: service, a fact about where the papers went; and entitlement, a fact about the debt. The Tribunal is not a passive referee. Section 16(3) requires it to inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party. The absent defendant's best points can still be put to you, by the adjudicator.

What the adjudicator will ask an unopposed claimant

Section 23(2) frees the Tribunal from the rules of evidence — it may receive any evidence which it considers relevant — but the Judiciary's guidance is equally clear that the burden of proof is on the party who makes the allegation. Nobody is contradicting you, so the questions come from the bench.

One provision is written for this exact situation. Section 33(2)(c) confirms the Tribunal may award pre-judgment interest where an award is made against the defendant in his absence, and section 33(3) says the award itself carries interest from the date of the award until it is satisfied, at the rate applicable to judgment debts in the District Court. Ask for interest; the absent defendant has not waived it for you.

After the award: the written order and the 7-day window

An adjudicator who gives an award orally must reduce it to writing not later than 14 days after the date of the award, and the Registrar serves the written award on the parties. For the defendant, that document is the first thing many of them read.

Then section 32A applies. Any award or order of the tribunal obtained where one party did not appear at the hearing may be set aside by the tribunal, on the application of that party, on such terms as it thinks just. The application shall be made within 7 days after the hearing or such further period as the tribunal may allow.

The Ordinance does not set out a fixed test. The Judiciary's pamphlet on setting aside says the absent party files Form 8D, Application to Set Aside an Award/Order, and must set out the reasons for absence with supporting proof. A hearing is fixed. The adjudicator may allow the application unconditionally, allow it on condition — the pamphlet's own example is payment of the claimed sum into court — or dismiss it. Practice on how much weight the defendant's proposed defence carries is for the adjudicator on the day; what the published guidance asks for, in terms, is the reason for the absence and the proof of it.

One line in that pamphlet is worth knowing before you spend a morning on the set-aside hearing: whether the Adjudicator allows the application to set aside or not, the defaulting party will usually be ordered to pay costs of that hearing to the non-defaulting party.

Set aside, review, appeal: three different doors

A defendant who wakes up to a default judgment has three routes, and they are not interchangeable. The table is the Ordinance's own time limits.

For the claimant, the practical meaning is that the award is exposed for about a week and then hardens. Set-aside is the door designed for absence; review is for a party who was there and disagrees; appeal is narrow, expensive, and closed to arguments about the facts.

Enforcement is a separate application, and you start it

Section 32 says an award of the Tribunal may be enforced in the District Court in the same manner as a judgment of that court. The Judiciary's pamphlet on enforcement is blunter: the Tribunal will not chase the losing party to pay the judgment sum to the winning party.

The usual route for a money award is a Writ of Fieri Facias. You obtain the praecipe and writ form from the Registry, fill in the judgment debtor's details and the sum, pay the filing fee — the Judiciary's fee table lists filing a writ of execution at HK$55 — and collect the sealed writ. You then deliver it to a Bailiff Office with a deposit covering the Bailiff's expenses. The Bailiff seizes goods and chattels to the value of the judgment plus expenses; the existing practice is to give the judgment debtor 5 working days to settle before the goods go to public auction.

The pamphlet's warnings apply with extra force to a defendant who never showed up: no one can guarantee enforcement will succeed; costs of a failed attempt come out of the deposit; and the Bailiff has no power to break into domestic premises. If you know they have nothing to seize, the Judiciary's own advice is that there is little point in pursuing the matter.

If you are the one who did not appear

The mirror image is harsher. If neither the claimant nor an authorised representative appears, the claimant's claim may be dismissed by the Adjudicator. The same section 32A route applies: Form 8D, within 7 days, reasons for absence with proof, and the usual costs order against you whichever way it goes. Business commitments and holidays are, in the Judiciary's words, usually not accepted as good reasons for an adjournment. If you cannot attend, apply to adjourn in writing as soon as you know, with the claim number, the hearing date and documentary support.

Common questions

The defendant did not come to the call-over. Have I won? No. You may apply for judgment, and the adjudicator may enter it if satisfied of service and of the claim. Until the award is made, and until the 7-day set-aside window under section 32A has run, you have an application, not a judgment.

Can I bring a lawyer to the hearing in absence? No. Section 19 gives no right of audience to a barrister or solicitor unless acting on their own behalf. You can take advice beforehand; you present the case yourself.

The defendant applied to set aside on day 6. Do I have to attend? Yes. The Tribunal fixes a hearing, and that is where the adjudicator allows, allows on terms, or dismisses. The absent party usually bears the costs of that hearing either way — but only if you are there to ask for them.

How long does the whole thing take? The Ordinance fixes two points: the first hearing within 60 days of filing, and the written award within 14 days of an oral one. Everything else depends on the Tribunal's list and the defendant's conduct.