Lui Sik Kuen v. Lee Suk Ling

CACV000023/1992

Family law - ancillary relief following divaorce -.wife seeking to set aside a consent order making financial provision for her on the grounds of material non-disclosure - proper practice and procedure - whether application can be made in the existing proceedings or whether she must take one of the following courses (a) appeal to a higher court or (b) institute a fresh action.

Coram: Fuad, V.-P., Penlignton & Nazareth, JJ.A.

Dates of Hearing: 28th and 29th may 1992

Date Judgment handed down: 19th June 1992

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal by the petitioner from the decision of Judge Gould dated 18th December 1991, pursuant to leave granted by him, whereby he resolved a jurisdictional issue relating to ancillary relief consequent upon a divorce in favour of the respondent.

2. The matter arose in this way. The parties (I will continue, for convenience, to call them "husband" and "wife") were married in 1972. There were three children of the family: one boy and twin girls. On 9th February 1988 the husband presented a petition for divorce. A decree nisi was granted on 19th May 1988, the court (Judge Pang) having found that the marriage had broken down irretrievably, based on the fact that the parties had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, the wife having consented to a degree being granted.

3. On the same day, Judge Pang made an order regarding, inter alia, the arrangements for the custody of the children, access to them, and their maintenance. The part of his order which concerns this appeal was in the following terms:

"AND the Judge further ordered that by consent the Petitioner do pay a lump sum of $100,000.00 to the Respondent maintenance for herself in full and final settlement of the maintenance for herself payable on the date of the decree is made absolute."

4. The decree nisi was made absolute on 4th July 1989.

5. On 24th July 1989 Judge Lee made an order, on the application of the husband, transferring custody of the boy to him, with access to the wife; giving him permission to take the boy permanently out of the jurisdiction and, by consent, increasing the maintenance payments for the girls.

6. The husband married again in November 1989.

7. On 13th September 1991, the wife took out a summons, supported by her affirmation, seeking the following relief:

"1. the order dated 19th May 1988 be set aside in whole or in part as to the lump sum payment by the Petitioner to the Respondent in full and final settlement of maintenance for herself;

2. leave to the Respondent to apply for ancillary relief including periodical payment, secured periodical payment, lump sum or sums, transfer of property order, settlement of property order or such other ancillary relief or financial provisions for herself and the children of the family as may be just or reasonable;

3. such further or other order or directions as may be just or reasonable;

....."

8. On the same day, the wife issued a notice of her application in Form 8 (rule 68 and the Appendix, the Matrimonial Causes Rules). The husband filed his affirmation in opposition on 24th October 1991.

9. When the matter first came before Judge Gould, on 28th September 1991, no submissions were made about procedure or jurisdiction. He adjourned the hearing of the wife's application and ordered the husband to file an affidavit of means. Provision was made for an affidavit by the wife in reply.

10. On 11th November 1991 the solicitors acting for the husband wrote to Judge Gould's clerk in relation to that part of the wife's application which sought to set aside the lump sum order of 19th May 1988 saying that since the adjournment they had consulted counsel who had advised that the summons of 13th September 1991 was not "a valid claim to put before the court." Counsel had suggested that if the wife were seeking to set aside part of the order on the grounds of non-disclosure, she could only do so in one of two ways: she could (1) apply to the Court of Appeal for leave to appeal out of time or (2) bring a separate action in the High Court to set aside that order. The solicitors made reference to de Lasala v. de Lasala [1980] AC 546 and Robinson v. Robinson [1983] 4 FLR 102.

11. The solicitors said that they felt it would be wrong, and a waste of the family assets, to wait to raise the point at the adjourned hearing. They enclosed a draft summons asking the judge to review his decision of 28th October, accompanied by a draft notice of the application. In effect, the husband was indicating that he would be inviting the court to consider striking out that part of the summons dated 13th September 1991 by which the wife was seeking an order to set aside the lump sum award of 19th May 1988.

12. In his judgment, the judge explained that these documents were not "in acceptable form". He then stated the issue before him, and how he intended to deal with it, as follows:

" The Petitioner challenges whether or not the Court has the jurisdiction to set aside the lump sum order. On the other hand, the Petitioner concedes that the Respondent's claims on behalf of her children can stand as set out in the Notice; and that it is permissible for the Petitioner now to make claims for property adjustment orders in her favour.

Although the nature and purpose of this hearing were different from the expected nature and purpose, I have deemed the Petitioner to have made an interlocutory application for a ruling that the Court has no jurisdiction to hear the application to set aside. I heard the Petitioner's application and indicated that I would rule upon its merits."

13. In examining the court's jurisdiction to entertain the application to set aside, the judge gave his reasons for reaching the conclusion that a resort to rule 55 of the Matrimonial Causes Rules (which makes provision for re-hearings) was not the appropriate way to deal with the matter. I say nothing more about this part of the learned judge's decision. Neither party has submitted that those provisions could be prayed in aid and we have heard no argument on the proper scope of rule 55.

14. The judge then gave his reasons for concluding (contrary to contentions advanced on behalf of the wife) that the principles in the de Lasala and Robinson cases did apply, adding:

"I find therefore that the Respondent must either apply for leave to appeal to the Court of Appeal out of time (which the Respondent appears reluctant to do on the grounds of expense), or bring a fresh action to set aside."

15. The judge went on to consider whether the expression "fresh action" was or was not synonymous with the expression "separate action", and, if I understand him correctly, he considered that there was, indeed, a difference in meaning between the two expressions. Be that as it may, this is how the judge explains his decision of with complaint is made by this appeal:

" I am aware that the term 'fresh action' was used in de Lasala, which arose in a matrimonial context, and specifically was concerned with the Hong Kong matrimonial law of the day. The Court did not expand upon the meaning of the term. However, it was speaking in the context of a setting aside application based upon fraud (i.e., fraudulent misrepresentation) and mistake; whereas in the instant case, the Respondent alleges neither fraud by the Petitioner nor mistake in herself. Although Ormrod LJ in Robinson cites the passage from de Lasala which includes reference to 'fresh action', he goes on to speak of the relevance of material non-disclosure as a further ground for setting aside. His requirements for an action for setting aside are less rigid.

If the term 'fresh action' were taken at face value, the Respondent would (if she chose the 'court of first instance') be obliged to commence fresh proceedings in the 'Family' Court. She might choose to bring those proceedings in the District Court, which is in reality the same thing. Originating documents would be filed. They would be similar to the documents which have already been filed in these proceedings and are now before me, but would have to go into more detail in order to bring the new proceedings up-to-date with everything which is readily apparent from the present proceedings. Eventually, after the same pre-trial procedures which are available to the parties and the Court in the present proceedings, the matter would come on for hearing, and a judge would make a ruling. If he dismissed the Respondent's action for setting aside, that would be the end of the matter. If, on the other hand, he granted the Respondent's application, it could be expected that he would proceed in one of two ways.

First, he could (if the fresh action had been brought in the District Court) refer the substantive issues to a Family Court Judge, or (if brought in the Family Court) to a different Family Court Judge, for a new matrimonial order on the merits. Much of the same argument and evidence, both written and oral, would have to be repeated before the new Judge. This duplication would be a waste of time, costs and Court resources.

Alternatively, he could (especially if the fresh action had been brought in the Family Court, but even if brought in the District Court) declare that he would proceed himself to consider a new matrimonial order. This would effectively be a consolidation of all proceedings. What would have been achieved? At the best, nothing; at the worst, extra work. Another file would have been opened with another number, and there would have been some duplication of paperwork. If the 'fresh action' is supposed to provide safeguards of some sort, those safeguards would have been illusory.

What really matters, and this is the heart of the matter, is that it should not be possible for the aggrieved party (in this case, the Respondent) to come to Court and immediately begin arguing the desirability or merits of a new matrimonial order. The essential requirement is that there must be a distinct and preliminary hearing of the question of whether the previous order should be set aside. That hearing should be conducted with strict attention to the grounds on which setting aside is claimed to be justified, e.g., fraud, mistake, material non-disclosure. That hearing should not be contaminated by extraneous questions which would be relevant only if the Court was being asked for the first time to make an appropriate matrimonial order on the current facts; although it will be necessary to consider whether the alleged non-disclosure was material. Only when that examination has been completed and a ruling made can the Court have any jurisdiction to make a fresh order. Such a preliminary hearing is clearly not a 'rehearing' of the original application.

That, I consider, is the true interpretation of the requirement to have a fresh action. If those objectives can be achieved by having the distinct and preliminary issue argued in the Family Court while the original Petition is pending, there can be no objection. In my opinion, those objectives can be achieved in that way. I am satisfied therefore that the Family Court does have jurisdiction to hear the Respondent's summons for setting aside."

16. So far as the Hong Kong courts are concerned, the leading authority is the de Lasala case. The facts of that case are very well-known. It is only necessary for me to cite the following passage from the judgment of the Privy Council given by Lord Diplock [1980] AC, at pp. 560-1:

" Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order; and the method of enforcing such of their provisions as continue to be executory (in the instant case the provisions of trust deeds A and B) is not by action but by summons under the court order pursuant to the liberty to apply, reserved in the instant case by paragraph 8 of the consent order of May 23, 1970. In their Lordships' view there is no relevant maintenance agreement now subsisting which is capable of attracting the jurisdiction of the court under section 15 of the Ordinance [Cap. 192].

Finally it was suggested that there was evidence before the Hong Kong court that the wife had been induced to agree to the consent order of May 23, 1970 (a) by misrepresentations by the husband as to his financial position at the time and (b) by the bad advice she had received from her then legal advisers as to what her tax position would be. On either or both of these grounds, it was submitted, the wife was entitled by an application made in the present proceedings to have the consent order set aside. The Court of Appeal had decided against the wife on this submission, so that strictly speaking it should have been the subject of a cross-appeal. However, their Lordships heard argument upon it and can dispose of it shortly. Where a party to an action seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside. The test whether a judgment or order finally disposes of the issues raised between the parties is not determined by inquiring whether for the purposes of rules of court relating to time or leave to appeal it attracts the label 'final' or 'interlocutory'. The test is: has the court that made the order a continuing power to vary its terms, as distinct from making orders in aid of enforcing those terms under a liberty to apply? Since their Lordships have already held that Huggins J. in the exercise of the divorce jurisdiction of the Supreme Court of Hong Kong (not its appellate jurisdiction), had no power to vary the consent order made by Briggs J. on May 23, 1970, the only means now open to the wife to set it aside on grounds of fraud or mistake would be by bringing a fresh action for this purpose. It is, however, only fair to the husband to say that her allegations of fraud are couched in terms that suggest that she is willing to wound and yet afraid to strike. 'I now dispute.' she says in her affidavit, 'the veracity of the representations made to me by [the husband] in 1969 and 1970, and to my then legal advisers through his solicitors, concerning his financial position at the time.' Reports of inquiry agents made in 1973 and 1974, to which she refers as supporting this half-hearted charge go nowhere near doing so and would be insufficient to justify English counsel in putting his name to a statement of claim in an action claiming to set aside the consent order of May 23, 1970, on the ground that it was obtained by fraud."

17. It is well settled that in matrimonial proceedings there is a duty upon the parties to make full and frank disclosure of their property and financial resources and that the court has power to set aside an order in appropriate circumstances (where it can be shown that the order would not have been made if the true facts had been known) just as it has power to set aside an order where fraud or mistake is successfully relied upon; and this is so whether or not the impugned order is made in contested proceedings after full evidence has been heard, or by. consent, after negotiations and an exchange of information between the parties, and without further inquiry by the court: see for example, Jenkins v. Livesey [1985] AC 424; and Robinson v. Robinson (Disclosure) (1983) 4 FLR 102. In the latter case, on the proper procedure, Ormrod, L.J. had this to say, at pp. 113-4:

" There is no doubt that both the Court of Appeal and the judge at first instance have jurisdiction in the situation with which we are faced in this case; where the application is to set aside a final order. Lord Diplock said so in de Lasala v. de Lasala [1980] AC 546 at p.561:

'Where a party to an action who seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside.'

There are many references in the books to separate actions to set aside a judgment on the ground of fraud. In the Family Division, as has been said many times, this power to set aside final orders is not limited to cases where fraud or mistake can be alleged. It extends, and has always extended, to cases of material non-disclosure. If one looks for a basis for that one can find it in r.73(2) of the Matrimonial Causes Rules 1977. There are many authorities to the same effect.

A distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied, and the power to set aside an order which has been obtained by fraud or mistake, or by material non-disclosure. The essence of the distinction is that the power to vary usually reflects changes of circumstances subsequent to the date of the order whereas the power to set aside arises when there has been fraud, mistakes, or material non-disclosure as to the facts at the time the order was made. From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised. These can be determined more easily, as a rule, by a judge at first instance. Moreover, he can go on to make the appropriate order which we cannot do in this court. I think that these proceedings should normally be started before a judge at first instance, although there may be special circumstances which make it better to proceed by way of appeal."

18. With very great respect, it is not entirely clear to me what form of further proceedings the learned Lord Justice had in mind. Did he mean a fresh application in the same matrimonial suit or did he mean a new action commenced by writ in the High Court? On the one hand he cites Lord Diplock's use of the words "by bringing a fresh action to set it aside" but on the other hand he mentions the advantage that a first instance court would have by being able "to make the appropriate order which we cannot do in this court." Would a first instance court entertaining a fresh action to set aside have this power?

19. I have found the whole judgment of Ward, J. in B-T v. B-T [1990] 2 FLR 1 of great assistance. He addresses the difficulty I have ventured to raise at p.12. After citing part of the passage I have set out above from Ormrod L.J.'s judgment in Robinson, Ward, J. had this to say:

" I respectfully agree with that sentiment but, if I am being pedantic, I am a little troubled about the procedure. The only way of starting proceedings before the judge at first instance is by action. I assume that the limitation on fresh actions on the ground of fresh evidence expressed by the Court of Appeal in Re Barrell Enterprises (above) can be overcome by pleading material non-disclosure as akin to misrepresentation, or fraud, indeed as a breach of the duty of frankness owed to the court. My difficulty is that the only relief sought by the claim in the fresh action could in effect be a declaration that the order be set aside. A new trial of the matters in dispute in the ancillary relief application would have to follow. I am not sure how, short of transferring the action to the Family Division and listing the ancillary ruling application to follow the action, the judge can proceed instantly to make the appropriate financial order. Even that pragmatic course presents technical obstacles: until the order is set aside there are no ancillary relief proceedings pending and consequently no jurisdiction for the registrar to give directions to enable the matter to be brought before the judge: cf. H v. B (Formerly H) [1987] 1 FLR 405. It is different if the registrar's order is under attack for then an appeal truly proceeds by way of rehearing, the new material is admitted without leave and the judge decides de novo: G v. P [1977] 1 WLR 1376."

20. It certainly does riot appear that Ormrod, L.J. was seeking to detract from anything Lord Diplock had said in de Lasala in the passage he had cited. It may be that he was at pains to stress the disadvantages of the appellate route. Whatever he may have meant, it seems to me that although Lord Diplock's dictum is not to be treated as if it were a statute, nevertheless if it is to be applied without doing unacceptable violence to his language, the expression "fresh action" simply cannot embrace an application in proceedings already instituted.

21. I mention here that Mr. Gilbert Rodway, Q.C. (who did not appear for the wife below) although supporting the judge's decision, did not seek to rely upon any distinction in meaning between the epithets: "fresh action" and "separate action".

Mr. Rodway submitted that the judge had taken a sensible, fair, practical and convenient course which was permitted by the authorities. Judge Gould's court was, he said, the obvious one in which to start proceedings to set aside the order now impugned. He suggested that we should not be awestruck by the use by Lord Diplock of the words "fresh action". A new action in the real sense of the word would be inconvenient and expensive. Here there were no allegations of fraud proper. No statutory provision prohibited the course suggested by the judge. The rules of practice were not so rigid as to require a separate action.

22. One of the cases Mr. Rodway relied upon was Allsop v. Allsop (1981) Fam. Law 18. He suggested that the facts here allowed Judge Gould and this court to adopt the approach of the English Court of Appeal in that case. There, in answer to his wife's application for a consent order relating to ancillary relief to be set aside and her affidavit in support, the husband swore an affidavit in which he accepted that in his earlier affidavit he had made statements which were false and in a highly material particular (about his assets). He indicated that he would not oppose his wife's application. All I would respectfully say about that case is that I agree with Ward, J.'s analysis in B-T v. B-T, at pp. 14-15, which I will not set out. Again, with great respect, I would adopt Ward, J.'s conclusion as to the effect of that case (at p.15):

"I would confine the ratio of Allsop to the proposition that the court has power to set aside its own order when the parties consent to its doing so or where the facts are not in dispute and the misrepresentation is plain beyond all argument. I intend no disrespect at all to their Lordships when I do not find this case as authority for Mr Tatham's proposition that orders for mixed ancillary relief, being orders for periodical payments and lump sum and/or property adjustment orders are interlocutory orders which the same court has jurisdiction to set aside even in circumstances where the allegations of a mistake, or fraud, or material non-disclosure remain heavily in dispute."

23. I have to say here that I cannot accept Mr. Rodway's submission, that since the husband did not provide an affidavit of means and there was no evidence that information regarding the husband's means was made available, on the material before us we are in a position to say that it is quite plain that there has been material non-disclosure. The facts are very much in dispute (see the husband's affidavit of 24th October 1991).

24. I next turn to consider whether the consent order sought to be set aside is "final" or "interlocutory" for the purposes of the principles set out in the passage I have cited from de Lasala. For convenience, I set out the material part of the order again:

"AND the Judge further ordered that by consent the Petitioner do pay a lump sum o?$100,000.00 to the Respondent maintenance for herself in full and final settlement of the maintenance for herself payable on the date of the decree is made absolute."

25. In my judgment, this was clearly a "final" order in so far as financial provision for the wife under s.4 of the Matrimonial Proceedings and Property Ordinance was concerned. In my view the part of the order with which we are concerned does not cease to be a "final" order because in other parts of the same order provision is made for such matters as the maintenance and custody of the children. To apply Lord Diplock's test - the court which made the order does not have a continuing power to vary its terms. I mention here that in so far as orders for lump sums are concerned, they are expressly excluded from the power to vary, given by s. 11 of the Matrimonial Proceedings and Property Ordinance, Cap. 192.

26. As regards the contention which was advanced in the court below and re-asserted before us, that de Lasala could be distinguished on the ground that there was nothing in the order which said that the wife's claims to ancillary relief for herself had been dismissed, I respectfully agree with Judge Gould's conclusions on the point (and I would remark that there is no cross-appeal on the issue):

"To require a Court to use a magic form of words in dismissing a claim would be a retrograde step into the legal technicality which reigned last century. It is of course incumbent upon a Court to express its intentions clearly, and that duty may indeed best be served by using the word 'dismissed'; but it cannot be compulsory terminology. It has been said that there are four ways of responding to an application for ancillary relief. Two of the four, adjournment and making a nominal order, are not relevant here. That leaves making a substantive order granting relief, and dismissing the claim. There is no practical difference between on the one hand dismissing by consent an application upon terms as to payment of a lump sum, and on the other hand making an order which expresses the parties' agreement and stating that the order is in full and final satisfaction of the affected claims. The former mode of expression may be preferable, but to say that the latter did not have the same effect would be to place no meaning whatsoever on the words 'full and final settlement'."

27. Nor do I think that Mr. Rodway can gain any support for the wife's case from Brown v. Kirrage (1981) 11 Fam Law 141. There the Court of Appeal upheld the judge's decision to reject a husband's plea of res judicata in holding that the wife was entitled to make and prosecute her application for a lump sum. The husband had contended that since an application for a lump sum order had been made by her and since the record of the proceedings before the registrar made it clear that he had not thought it right to make such an order, it must be inferred that he had dismissed the wife's claim. Brandon, L.J. (as he then was) is reported to have said, at p.142:

"Dismissal of a wife's claim for a lump sum is a serious matter, for it means that, whatever events, either unforeseen or not catered for, may subsequently occur, she can never re-open the matter. That being so, it seems to me that a court should be extremely cautious about implying such a dismissal when none is expressed. Applying that principle of caution to the present case, I am not satisfied that it would be right, in all the circumstances of this case, to infer that the registrar dismissed the wife's claim. It is possible that he intended to do so, in which case his order did not give effect to his intention. It is also possible that he intended to do no more than make no order on the application in the sense of adjourning it generally. The burden of establishing that there was a final and unequivocal dismissal of the claim is on the husband. In my view, the material which he relies on in this case is insufficient to enable him to discharge that burden."

The position in our case is very different. There is a reference to a lump sum in the order and it is expressed to be in full and final settlement of maintenance for the wife. I may mention that in my view the order as it stands, unless and until it is set aside, is indeed an impediment to the financial provision claims she makes in paragraph 2 of her summons of 13th September 1991. The order is poorly drafted but everyone concerned with the case until the appeal came before us seems to have taken the same view. It may be that when the order was made a true clean break was intended (of course, only in respect of the spouses) but, as the husband has conceded, the order cannot be read so as to preclude the wife from now advancing a property adjustment claim under s.6 of the Matrimonial Proceedings and Property Ordinance.

28. The learned judge dealt with the issues before him with painstaking care. He was anxious to save the parties time and expense and, as he saw the matter, obviate the necessity of multiple proceedings. However, I do not find it possible to distinguish de Lasala, by which authority, of course, we are bound.

29. I would therefore allow the appeal and dismiss paragraph 1 of the wife's summons.

Penlington, J.A.:

30. I have had the advantage of reading the judgment of the Vice-President in draft and I agree with the conclusion he comes to that this appeal must be allowed. I do so with some reluctance and also agree with Nazareth, J.A., that the question raised here should be the subject of remedial legislation. I am however in no doubt that the dicta of Lord Diplock in de Lasala, which is binding on us, cannot be distinguished. Here the wife seeks to challenge the order, as I understand it, on the ground that it was obtained by mistake. She was not aware of her husband's substantial assets. I also have no doubt, for the reasons cogently stated by Judge Gould in his careful judgment, that it was an order which finally disposed of the issue now raised, that of maintenance for the wife. That brings it firmly within the dicta at p. 561 of de Lasala and the clear statement that the only way the order of Judge Pang can be set aside is by way of an appeal out of time or by a "fresh action". Much of the argument in de Lasala was as to whether the courts in Hong Kong should follow the English Court of Appeal decision in L v. L [1961] 3 WLR 1182, and it was argued strongly for the wife that, for a variety of reasons, they should not. However, when de Lasala finally reached the Privy Council L v. L had been approved by a full Court of Appeal in Minton v. Minton [1979] 2 WLR 31.

31. Mr. Rodway has argued strongly that the approach taken by Judge Gould to this matter is correct. This is a family matter and should be decided in the Family Division of the District Court by the procedures used there such as the filing of comprehensive affidavits. There is clearly much to be said for that view especially as it is not disputed that the wife could still apply for transfer of property - presumably the flat owned by the husband which she occupies. There is support for that in Robinson per Ormrod , L.J., at 114, though it is not easy to see what form of "proceedings at first instance" he contemplated.

32. The reasoning of Judge Gould and the arguments advanced here in support of the proposition that the summons which has been issued should be regarded as a "fresh action" have much to commend them on the basis of convenience and speed but I am satisfied that, on the authorities, particularly of de Lasala, but also Minton and Robinson, it cannot be so described for he reasons stated by the Vice-President.

Nazareth, J.A.:

33. I also agree with my Lord the Vice-President. I would only add with reference to two of the authorities to which he has referred that Lord Diplock's dictum in de Lasala, that the only way open to challenge a final order on the grounds mentioned is by appeal or fresh action is so categoric that I find myself unable to contemplate that, have adopted it at page 113F of Robinson, Ormrod L.J. immediately, proceeded to disregard it. It seems to me rather, that Ormrod L.J., while accepting the law as stated, was recounting the considerable advantage of a further procedural option enabling a judge at first instance not merely to set aside the order improperly obtained, but to go on to make the appropriate order in lieu. Those advantages in the present case were convincingly identified by Judge Gould. Nevertheless the procedural option envisaged is not available under the law in its present state and while the advantages it would provide do not change that, they seem to me to call for the introduction of such an option which, I dare say, could conveniently be made by statutory provision.

Fuad, V.-P.:

34. In handing down these judgments allowing the appeal, we make an order nisi that the respondent pay the costs here and below.

Representation:

Mr. Ian Payne (Y.L. Yeung & Co.) for the Appellant/Petitioner

Mr. Gilbert Rodway, Q.C. and Ms. M. Chew (Stevenson Wong & Co.) for the Respondent