Chevalier Property Management Ltd v. The Incorporated Owners of Glorious Garden and Another

HCMP 739/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 739 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 2570 OF 2013)

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BETWEEN

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Hon Cheung JA (giving Decision of the Court) :

1.The parties signed a consent summons before Deputy Judge Burrell whereby, upon the 1^st defendant’s undertaking that it will abide by the Extended Management Agreement entered into between the plaintiff and the 1^st defendant dated 30 October 2009, the plaintiff’s action be discontinued, the injunction obtained by the plaintiff against the defendants be dismissed and the costs of the action be paid by the 2^nd defendant who was the chairman of the management committee of the 1^st defendant. The Judge made an order in terms of the consent summons (‘the consent order’).

2.The 2^nd defendant sought leave to appeal from the Judge against the consent order.  He wished to set aside the consent order.  The ground for the application was that the injunction that was granted and continued should not have been made in the first place.  The Judge refused the application.

3.The 2^nd defendant renews the application before us on paper which we now refuse.  The 2^nd defendant simply fails to show that he has any reasonable prospect of success in his intended appeal against the consent order.   Grounds for setting aside a consent order are well known and are restrictive, such as the consent order was obtained by fraud, mutual mistake etc.  None of these is relied upon in this case.  The transcript of the hearing before the Judge clearly shows that the 2^nd defendant knew that he was agreeing to the terms of the consent summons before he appended his signature to it.  Whether the injunction was properly obtained in the first place or not was irrelevant and was not a ground for setting aside the consent order.

4.The application is accordingly refused and the 2^nd defendant is required to pay costs to the plaintiff and the 1^st defendant which we now summarily assess as follows :

5.We are of the view that the application is totally without merits.  We will, pursuant to Order 59 Rule 2A(8), further order that the 2^nd defendant is not allowed to apply for a hearing to reconsider his application.