Wg v. Gg

HCMP 246/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 246 OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO 293 of 2015)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.In this application, the Intervener sought leave to appeal against the decision of Deputy District Judge A Tse Ching in FCMC 293 of 2015 on 8 December 2015 dismissing the summons of the Intervener of 30 April 2015. Leave to appeal was refused by the judge on 18 January 2016.

2.The judge helpfully set out the background of the summons at paras 2 to 9 of the judgment of 8 December 2015.  The summons asked for an order from the court that “the normal and usual cross-undertaking as to loss and damage suffered by third parties shall apply”. 

3.As the judge correctly stated in the judgment of 8 December 2015, the courts have no power to impose an undertaking on the petitioner.  Thus, there is no doubt that the relief sought in the summons is not something which the court can grant.  What the court can do is to refuse to grant an injunction or to discharge the same if an undertaking which the court considers the petitioner should give is not forthcoming. 

4.As the judge noted, there was no application before her for the discharge of the injunction. 

5.Though it is within the court’s discretion to entertain arguments on discharge without a formal summons for that purpose, it is equally within the court’s discretion to insist a proper application for discharge be made.  It is a matter of case management discretion.  In the present case, the judge decided at paragraph 24 of the judgment of 8 December 2015 that a proper application should be made if that was the relief sought by the Intervener.

6.Having read the papers, we do not find any reasonably arguable case for saying that the judge erred in principle or was plainly wrong in the exercise of her case management discretion.  Counsel for the Intervener, Mr Chan, did not suggest so in his written submissions.

7.In the written submissions, counsel only invited us to consider granting leave in the interests of justice as there is a paucity of appellate authority on whether a cross-undertaking should be required.  With respect, as explained by the judge in her judgments, much depends on the circumstances of the case.  In Hong Kong, Will v Will [1993] 2 HKLR 398 provided some guidance.  In her careful judgment of 8 December 2015, the judge referred to the relevant considerations and adopted an approach well-supported by authorities, including those cited by her at paragraphs 16 to 23 of the judgment. 

8.Further, as we have seen, ultimately, it is a matter of case management discretion.  As there is no proper basis for this court to intervene with the judge’s decision that she should not entertain any application for discharge absent a proper application being filed, there is simply no basis for granting leave in the present case.

9.For these reasons, we refuse to grant leave.

10.As the intended appeal has no reasonable prospect of success and we do not see any reason that leave should be granted in the interest of justice, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

11.The petitioner did not file any response to the application.  We therefore make no order as to costs. 

No written submission from the petitioner acting in person

Written submissions by Mr Jeremy SK Chan, instructed by Tanner De Witt, for the intervener