Tomas Dee and Another v. Sze Lee Metal Scrap Dealers

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 995 OF 1972

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Huggins, J. in Chambers

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J U D G M E N T

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1. These two summonses have been heard together and the circumstances are identical, save that in one of the two cases a Defence was filed on behalf of the Defendant.  They are two actions for possession of land, injunctions and damages for trespass.  There were negotiations and a compromise was reached in each case.  Some point was made that the negotiations took place between a company which was not party to the action and the Defendants.  The concessions that have been made in my view make this of no relevance in the present appeal.

2. What happened was that the agreement required an application to the Court for an order.  An application was made to the Court and, although it is apparent that at the time of the original agreement the parties were ad idem as to the terms of the order to be made, when counsel appeared at the hearing before the learned Registrar he indicated that the Defendants no longer would consent.  I emphasise that it was not apparently suggested at that time that there never had been any consent but rather that the consent given had been withdrawn.  This, I think, is important.  The learned Registrar decided that he had jurisdiction and should exercise that jurisdiction to enter judgment by consent.

3. What is contended again before me, as before the learned Registrar, is that it was wrong to enter that judgment – that, indeed, there was no jurisdiction to do so because there was no consent.  This argument had been advanced most attractively by Mr. Martin Lee on behalf of the Appellants, but , in my view, the learned Registrar was right.  I have had cited to me the two cases of Green v. Rozen [1] and McCallum   v. Country Residences Ltd.[2].  Neither of these cases is directly in point, but I think it is of interest that in the former case Slade J. out of his long experience set out the five methods which he himself had come across used for the compromise of proceedings.  Two of them are important.  One method is the method which was used in the present case- that the parties apply to the court for the terms of the compromise (or, in this case, some of the terms of the compromise) to be included in an order of the court.  The third case which he referred to was the Tomlin form of order, which is well enough known not to require further description.  In McCallum v. Country Residences Ltd. it was  not the former method but the Tomlin form which had been used and that is, in my view, a sufficient distinction of the present case from McCallum.  In that particular case it is quite clear that all three judges considered that there was no merit whatsoever in the appeal and equally I am well satisfied in the present case that there is no merit whatsoever in this appeal.  Mr Lee has not suggested that there is.  In McCallum’s Case two of their Lordships came to the conclusion with great reluctance that the appeal had to be allowed because there was no consent.  What happened was that the parties agreed that there should be an application for a Tomlin order and when they went before the Official Referee the parties were represented by solicitor’s clerks, one of whom questioned the form of the order, but he did not consent and he did not object.  The majority of the court, with reluctance as I say, came to the conclusion that there had to be express consent to the order.  Now, there being only an agreement for a Tomlin order there was never an order for the parties to do anything.  In the present case the other method having been agreed upon, there was something which the parties were to be ordered to do, and there was an agreement between the parties that an order of that kind should be made.  At the hearing it was sought, as I say, not to say that there had been no agreement, but to withdraw the consent which, it is agreed, had previously been given.

4. As a general rule I would say that the material time for the consent to a consent order is the time of the making of the order, and it may well be (though I do not have to decide this) that the fact that counsel has said he consents and, upon receiving a tug upon his gown and whispered instructions, thereupon withdraws that before it is recorded the judge would be entitled to say that there was no consent.  But in the present case it seems to me that there was very clearly a consent and that it was not necessary that the parties should continue to consent right up to the end. They had agreed that they would go before the court and consent:  the Defendants had endorsed upon the summons their consent and, in my view, neither equity nor law requires me to hold that it was open to them to go back on a consent clearly given and acted upon.

5. I therefore take the view that the learned Registrar came to the correct conclusion and the appeal is dismissed with costs and a certificate for counsel.

6^th October, 1972.

Mills-Owens (J.S.M.) for Plaintiff

M. Lee (C.P. Tsang & Co.) for Defendant

[1]  1955 1 W.L.R. 741

[2]  1965 1 W.L.R. 657