Llwl v. Mcm
Read the full judgment text of FCMC 2917/2023 on BabelCite. This Family Court judgment was delivered on 7 July 2023 before Deputy District Judge J. Chow.
Family law – divorce – costs – slip rule – leave to appeal – Order 20 rule 11 – District Court Ordinance Cap 336 s.63A(2) – Whether costs order made erroneously – Court admitted error in costs order contrary to Consent Summons – Leave to appeal granted – Costs in cause of appeal
Legal issues: Amendment of costs order under slip rule
Outcome: Leave to appeal granted.
Cites 4 cases
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FCMC 2917 /2023 (FCMC 917 / 2022) [2023] HKFC 130 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER FCMC 2917 OF 2023 ----------------------------
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---------------------------------------- DECISION ---------------------------------------- Introduction 1.The petitioner (“the wife”) filed a summons for leave to appeal on 28 March 2023 against a costs order made pursuant to a consent summons filed on 8 December 2022 (“the Consent Summons”). Background 2.On 31 January 2022, the wife petitioned for divorce on ground of unreasonable behaviour (FCMC 917 of 2022), the parties then agreed to change the ground of divorce to that of one – year consent. What followed as most of the cases did, the parties filed the Consent Summons for directions the file a new petition and in that the parties have specifically agreed on costs of the main suit of FCMC 917 of 2022 be reserved. However, in the consent order granted by me on 7 February 2023, I granted an order that the costs of main suit be that of no order as to costs (“the Main Suit Costs). The order was perfected on 22 February 2023. 3.The wife’s solicitors opposed such costs be ordered in her letter dated 16 February 2023. I reverted to the parties that this matter shall be dealt with in the forthcoming hearing on 9 March 2023. 4.In the hearing of 9 March 2023, the wife had made clear that the Main Suit Costs order was erroneously ordered when parties had an agreement set out in the Consent Summons. In accepting the wife’s submission, I have indicated to the parties at the Main Suit Costs may be corrected by slip rule. 5.Nonetheless, the husband disagreed. He submitted the Main Suit Costs order is a valid order because the Court may order otherwise. If the Court amended the Main Suit Costs to that of costs reserved, there would result a fundamental and radical variation of the costs. Slip rule is inapplicable here. The husband insisted no error of Court has been made and such should be maintained and should not be rectified in any way. 6.Whilst the error of Court can be varied by way of a summons, the wife took out application for leave to appeal soon after the hearing on 9 March 2023. 7.In accordance with the New Arrangement for Application for Leave to Appeal in the Family Court dated 13 August 2018, the wife has filed with Court her affirmation and draft grounds of appeal on 28 March 2023, her written submissions came late and was only lodged on 24 May 2023. The husband, on the other hand, filed his affirmation in opposition on 21 June 2023. The issue 8.The issue here is whether the Main Suit Costs order is made erroneously which can be amended pursuant to Order 20 rule 11. Applicable legal principles Amendment of orders 9.Pursuant to Order 20 rule 11 of the Rules of High Court, clerical mistakes and judgments or order, or errors arising therein from an accidental slip or omission, may at any time be corrected by the court on summons without any appeal. It is general rule that an order or judgment cannot be amended after the same is sealed or perfected, nonetheless, the Court may at any time upon application order that a clerical mistake or that an error arising from the accidental slip or omission in an order be corrected under the slip rule. Sealing of an order is no bar to its application. (see Hong Kong Civil Procedure 2023 at 20/11/1) 10.In Yau Wah Hing & anor v. Yuen Kay Ming (CACV 36 of 2012, 19 March 2013, unreported), Lam JA (as he then was) decided at paragraph 52 that the error, on the other hand, must be an error in express the manifest intention of the Court.
11.In situation of a consent order or judgment, Deputy Judge Au (as he then was) gave a succinct account of how it could be done in Cathay Pacific Airways Flight Attendants Union v Cheung & Choy (a firm) (HCMP 1863/2007, 3 February 2009, unreported:
12.In a Court of Final Appeal case, Man Ping Nam v. Man Fong Hang (No.2) (2007) 10 HKCFR 140 on application of inherent jurisdiction of all level of courts to amend its sealed order:
13.In summary, all levels of Court have power to correct an erroneous Court order at any time, even after it has been perfected. For such amendment, the Court has to satisfy it is the manifest intention of the Court. On granting leave to appeal 14.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336). 15.Reasonable prospect of success connotes the prospect of succeeding in the intended appeal and must be reasonable and more than fanciful, without having to be probable. An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2023, §59/2A/4) Discussion 16.On admission on my part that the Main Suit Costs is ordered by error, I accept such order should be amended to that of parties’ agreement as per the Consent Summons. The reason being the issue on costs agreed in the Consent Summons was never argued between the parties, no submissions were ever made to seek the Court’s determination on costs. The Consent Summons was only submitted for approval, as a result, I fail to see there is other reason, apart from an error, that the Main Suit Costs has been ordered. 17.The husband submitted the costs order agreed in the consent summons is not final and the Court has power to determine. He sees it had turned out to be a costs order in his favour and he insisted such order to be maintained. 18.While the husband has raised rightly that “costs reserved” and “no order as to costs” are radically different costs orders, this might not be a kind of typographical error that the Court could have amended by slip rule. However, as I have indicated above, the Main Suit Costs was made in light of the Consent Summons, I gave no reason for determination on such costs to be otherwise and thus the manifest intention of the Court must not be “no order as to costs”. I am of the view that the Main Suit Order can be rectified by slip rule and the husband’s argument is bound to fail. Conclusion 19.I accept the wife’s appeal has reasonable prospect of success and therefore exercise my discretion to grant the wife leave to appeal. Costs 20.I order costs of the wife’s summons be in the cause of the appeal. 21.I make the following orders:
Messrs Munros for the petitioner The respondent acted in person | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 2917/2023