Chor Ki Kwong David v. Lorea Solabarrieta Cheung

HCMP 443/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 443 OF 2013

____________

____________

_____________

D E C I S I O N

_____________

1.The Respondent in this case, who acts in person, seeks leave to appeal against my Order 17 June 2014. That Order was made on a consent summons signed by the Respondent and the solicitors for the Applicant, which was faxed to the court at 9:02 pm on 16 June 2014 (“Consent Summons”). The Consent Summons sought an order for the hearing of the Originating Summons issued by the Applicant, on 18 June 2014, to be vacated, and for the hearing to be adjourned to a date to be fixed, with no order as to costs. The Consent Summons refers to the Applicant and the Respondent engaging in settlement discussions, as the basis for the order sought, and made.

2.In support of her application, the Respondent affirmed the contents of her letter of 7 July 2014 to the court, that the Order was based on a Consent Summons that she did not agree to, which was not presented to her to sign, and which she did not sign.  It is claimed that the document presented by the Applicant’s solicitors to the court “is a fake”. 

3.Under s14AA of the High Court Ordinance, leave shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal shall be heard.  If the court is not convinced that there is a reasonable prospect of success, no leave can be granted.  The converse, however, is not true, as held by Cheung J (as he then was) in Ho Yuen Ki Winnie v Ho Hung Sun Stanley HCA 391/2006, unreported, 25 May 2009, and affirmed by the Court of Appeal in HCMP 1009/2009 [2009] HKEC 1798.  Even if the court takes the view that there is a reasonable prospect of success, it retains the discretion whether to grant leave.

4.Having reviewed the Respondent’s affirmations of 16 June 2014 and 17 June 2014, and the documents she exhibited, including her letters to the court of 9 June, 16 June, and 17 June 2014, and her email to the Applicant’s solicitors of 16 June 2014, it is clear that the Respondent had agreed to vacating the hearing on 18 June 2014 and adjourning it to another date.  This is also supported by the transcript of the voicemail left by the Respondent with the Applicant’s solicitors on 16 June 2014 at 1:40 pm.

5.In gist, it is the Respondent’s case that the Applicant’s solicitors had also offered, on 9 June 2014, to withdraw this action with no order as to costs, and that they had produced a Consent Summons for that purpose (“the Withdrawal Consent Summons”).

6.The confusion and dispute arose when, after the parties had reached agreement for adjourning the 18 June 2014 hearing, and arrangements were made for the paperwork to be delivered to the Respondent to sign in court in the afternoon of 16 June 2014, the solicitors’ clerk made a mistake, allegedly, and produced the Withdrawal Consent Summons to the Respondent for signing and for filing with the court.  The time for acceptance of the terms set out in the Withdrawal Consent Summons had lapsed on 11 June 2014 and, on the Respondent’s evidence, when she proposed further terms for withdrawal of other legal proceedings involving the same parties.  The Respondent signed the Withdrawal Consent Summons produced by the solicitors’ clerk after 3:00 pm on 16 June 2014.

7.When the Applicant’s solicitors learned that the wrong summons had been signed and filed, they took steps apparently to retrieve the Withdrawal Consent Summons from the Court Registry, and faxed to the court in the evening of 16 June 2014 the Consent Summons which the Respondent had signed and faxed to the Applicant’s solicitors, some time before 16 June 2014.

8.On the documents produced to the court and on the parties’ evidence on affidavit, there is a dispute as to whether the parties had concluded an agreement for withdrawal of this action on the terms of the Withdrawal Consent Summons.  The Applicant claims that the offer contained therein, made on 9 June 2014, had lapsed on 11 June 2014.  On the Respondent’s case, it is arguable that by the clerk’s production of the signed Withdrawal Consent Summons to her in the afternoon of 16 June 2014, it constituted an offer (or revived offer) which she accepted by signing the Withdrawal Consent Summons.  The Respondent claims that she first acquired knowledge of the terms of the Withdrawal Consent Summons when it was produced to her in court by the solicitors’ clerk on 16 June 2014.   In any event, these are all disputed by the parties, and remain to be resolved.

9.Whether or not there is a concluded agreement for the withdrawal of this action, as stated in the Withdrawal Consent Summons, when the offer had lapsed as the Applicant claims, or had been vitiated by the mistake made by the solicitors’ clerk, there is no doubt and the Respondent does not dispute that she had agreed and accepted the terms set out in the Consent Summons, for vacating the hearing date of 18 June 2014 and for adjourning the hearing of the Originating Summons.  Even in her affirmation made on 16 June 2014, when she had signed the Withdrawal Consent Summons, the Respondent maintained that she had intended to sign the Consent Summons, which deals with vacating the hearing on 18 June 2014.  Her affirmation made on 17 June 2014 was only filed after the Court had made the Order on the Consent Summons.  It was only in her affirmation made on 17 June 2014, that the Respondent claims clearly that the Withdrawal Consent Summons “overrode" other agreements.

10.The correspondence and the Respondent’s own affirmations of 16 June and 17 June 2014 contradict the assertions made in her letter of 7 July 2014 used to support the application for leave to appeal: that the Consent Summons was not presented to her to sign, that she did not sign it, and that the Consent Summons is “a fake”.

11.I am not satisfied that there is any real prospect of success in an appeal against the Order, to set aside the Order, on the basis that the Consent Summons did not represent or reflect the parties’ agreement.

12.Even if there were reasonable prospects of success, I am not satisfied that leave should be granted to the Respondent to appeal against the Order.  When the circumstances are that the Respondent actually agreed, on 16 June 2014, to vacate the hearing date on 18 June 2014 and to adjourn the hearing, upon her own request not to have the hearing take place for the reasons set out in her letter to the court of 9 June 2014, I see no point in granting her leave to appeal against the Order and to set it aside.  The only real effect of the Order is to adjourn and vacate the hearing of 18 June 2014.  The Respondent had obtained what she had been asking for since 9 June 2014, and it would be unjust to permit her now to take advantage of the mistake made by the Applicant’s solicitors. 

13.The hearing of the Originating Summons for the Respondent’s committal for contempt of court has been adjourned on 2 earlier occasions, as a result of the Respondent’s assertions of her unavailability in Hong Kong.  On 29 April 2014, the court in granting an adjournment of the hearing made the express order that the matter may proceed in the Respondent’s absence.  But for the Consent Summons, this court would have proceeded with the hearing on 18 June 2014 despite the Respondent’s unwillingness to attend court.  Due administration of justice cannot be furthered by allowing any party to waste costs and further procrastinate and delay the hearing and adjudication of this matter, which delay would be inevitable if leave to appeal should be granted as sought.

14.The application for leave to appeal is accordingly dismissed, with costs.

Postscript

15.I would make it clear, however, that I do not approve of the action of the Applicant’s solicitors in sending to the court the Consent Summons late in the day of 16 June 2014, with knowledge that what the Respondent had signed in court earlier on in the afternoon was the wrong Withdrawal Consent Summons, but without explaining the mistake and the circumstances of the signing of the 2 Summonses to the court.  Solicitors have the duty to be forthright to the court to the fullest extent, especially when the other party acts in person.

Mr Christopher Chain, instructed by Maurice WM Lee Solicitors, for the applicant

The respondent appeared in person