Zebra Industries (Orogenesis Nova) Ltd - (Zion) v. Wah Tong Paper Products Group Ltd

HCCT 46/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

ACTION NO 46 OF 2011

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R U L I N G

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1.This is an application by the plaintiff by way of summons seeking to set aside a consent order made by this court on 11 December 2012.  For the present purpose I do not need to go into the details of that consent order.  Suffice to say that the plaintiff sought to set aside the consent order by various reasons, saying that he was forced into entering into that consent order by way of economic duress and also there was a breach of the settlement agreement.

2.The court today is not to deal with the underlying substantive merits of that application as the defendant takes the position that the application cannot be entertained because of a procedural irregularity.

3.I agree with the defendant’s submissions that once the consent order has been made by this court, the court is functus officio (see the decision of Andayani v Chan Oi Ling [2000] 4 HKC 233 per Keith JA at p 237 C-G), and also Moores v Grant Thornton (unreported HCA 1126 & 735 & 87/2010, HCMP 1284/2011, Deputy High Court Judge Lok, 8 June 2012) at paragraph 28.

4.I also accept the submission by the defendant that in relation to setting aside a consent order the proper procedure is by the plaintiff to take out a fresh action (see the commentary made in Hong Kong Civil Procedure 2013, Vol 1, p 471, paragraph 20/11/7 and Ng Shui Hing v Lai Hang [1983] 1 HKC 158 (CA) at p 162 B-C). 

5.On that basis, I accept that this application is wrongly taken out and I will dismiss it.

6.For this reason I also order costs to be paid to the defendant, to be taxed if not agreed.

Plaintiff, in person, represented by its director, Mr Elijah Saatori

Mr Josiah Chan Chung Ming, instructed by W K To & Co, for the defendant