Yau Tak v. Yau Ngai and Another

HCMP 765/2008

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 765 of 2008

(on AN INTENDED appeal from HCA NOS. 1255 and 1309 of 2007)

________________________

HCA 1255/2007

BETWEEN

________________________

HCA 1309/2007

BETWEEN

________________________

Before: Hon Rogers VP in Chambers

Date of Hearing: 28 April 2008

Date of Decision: 28 April 2008

________________________

D E C I S I O N

________________________

1.This is an application for leave to appeal an order made by Deputy High Court Judge L. Chan, which was given on 14 March of this year.  The application for leave to appeal out of time was made some fortnight or so after the time it should have been made.

2.The order made by the judge was an order for variation of a consent order.  For my part, I take a very strong view about consent orders.  I consider that they should not be varied, except under very exceptional circumstances.  These orders that were made in the two actions were clearly carefully drawn up and I look on any variation of a consent order with a considerable degree of circumspection.

3.However, in this case, I am not satisfied that there has been any prejudice to the Applicants for leave to appeal out of time by reason of the making of the variation because the variation consisted of inserting into the provisions of the order what the parties seeking the variation said was a subsidiary company of a company that was already included.  As part of the variation, is the inclusion under paragraph 14 of the undertakings given by the applicants for variation that the assets of that company will not be disposed of.

4.On that basis, I refuse it.  But I do see that one thing may have gone wrong in the court below.  My view is that anybody who comes for a variation of a consent order has to pay for it.  He is asking for a considerable discretion of the court.  It is not an ordinary exercise of discretion; it is an exceptional matter.  The order for costs in the court below was no order as to costs for the hearing.  I doubt that I would have made that myself.  But as far as this case is concerned, I would not give leave to appeal in respect of that, because it is a matter of costs.  The costs generated by any appeal would far exceed any relevant order and all an appeal would do would be to generate satellite litigation.  Therefore, I refuse this application for leave to appeal.

Mr John Hui, instructed by Messrs Oldham, Li & Nie, for the Plaintiff (in HCA 1255/2007) and the 1st to 9th Defendants (in HCA 1309/2007) /Applicants

Mr John M Y Yan SC and Ms Sara Tong, instructed by Messrs Jimmie K.S. Wong & Partners, for the 1st & 2nd Defendants (in HCA 1255/2007) and the 1st to 3rd Plaintiffs (in HCA 1309/2007)/Respondents