Ng Shui Hing v. Lai Hang
Read the full judgment text of CACV 165/1982 on BabelCite. This Court of Appeal judgment was delivered on 8 February 1983 before Leonard VP, Cons JA, Fuad JA.
Civil procedure – striking out – O.18 r.19 – whether particulars of claim disclose cause of action – consent judgment – setting aside on ground of mutual mistake of fact – setting aside on ground of solicitors' want of authority – Landlord and Tenant (Consolidation) Ordinance (Cap. 7) – flat in Bute Street, Kowloon – consent order for possession with mesne profits, stay of execution, and undertakings by landlord to pay ex-gratia sum, refund deposit and waive mesne profits if tenant delivers vacant possession by 22 June 1982 – whether consent order accurately embodied the compromise – whether proper remedy is fresh action rather than appeal – Wilding v. Sanderson [1897] 2 Ch. 534 – Ainsworth v. Wilding [1896] 1 Ch. 673 – de Lasala v. de Lasala [1980] A.C. 546 – Welsh v. Roe (1918) 87 L.J.K.B. 520 – first issue: whether particulars disclosed cause of action to set aside consent judgment on ground of mutual mistake of fact – held no, no material facts pleaded identifying the precise mistake – second issue: whether solicitors' want of authority could ground setting aside as against the other party – held no as pleaded, no allegation that any limitation on the solicitors' implied authority was communicated to the opposite side – appeal allowed and particulars of claim ordered to be struck out – court declined to comment further on possible claim by tenant against her own solicitors.
Legal issues: Whether particulars disclose cause of action to set aside consent judgment on ground of mutual mistake of fact · Whether particulars disclose cause of action based on solicitors' want of authority to settle
Outcome: Appeal allowed; the District Judge's refusal to strike out the particulars of claim was set aside and the application to strike out should have succeeded.
Cited by 12 cases
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CACV000165/1982
BETWEEN
___________ Coram: Hon. Leonard, V.-P,, Cons and Fuad, JJ. A Date: 8 February 1983 ____________ JUDGMENT ___________ Fuad, J. A.: 1. This is an appeal from an Order of a District Judge made on the 4th November 1982 by which he dismissed an application to strike out the Particulars of Claim in an action under 0.18 r.19. He gave leave to appeal on the 10th December. At the conclusion of the hearing we allowed the appeal and now "hand down" our reasons under U,42 r. 5A. This is the history of the matter. Madam Lai Hang, the Respondent to this appeal, was the Defendant in K. C. J. Action 11479 of 1980. In that action Madam Pig Shui Hing (the present Appellant) sued for possession of her flat in Bute Street, Kowloon under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) on the ground that she reasonably required the flat as a residence for herself and her family. Both parties were represented by Solicitors and on the hearing date a compromise was reached which resulted in the following consent Order being made by the Judge -
2. On the 14th October 1982 the Respondent, Madam Lai, brought the present action in the District Court against the Appellant, Madam Ng, and the Particulars of Claim averred the following -
3. We would also mention that at the hearing the Judge granted Madam Iai application for an interlocutory injunction that Madam Ng be restrained, whether by herself or her servants or agents or otherwise, from enforcing the judgment entered against [Madam Lai] in K. C. J. Action No. 11479 of 1980 until the trial of this action....". In his Judgment, the learned Judge said that he did not think that the argument urged upon. him on behalf of Madam Ng was "quite right" - this was that the proper course for Madam lai was either to appeal against the Order or to sue her Solicitors. If the court which made the Order had no power to set it aside, he doubted very much if the Court of Appeal would set aside an Order entered by consent in-.all the circumstances. The issue was dealt with extensively in para. 2010 of Volume 2 of. the Supreme Court Practice. The authorities seemed to him to suggest that the only means open to a party to set aside a consent judgment or order on the ground. of fraud or mistake was to bring a fresh action for that purpose, and he cited de Iasala v. de Lasala [1980] A. C. 546. This was precisely what Madam Iai was doing in this case. The crux of the matter, as he saw it, was whether there were issues which ought to go to trial with some chance of success. The allegations of mistake and lack of authority were certainly such issues, and before they were decided by the trial Judge no one could say there was absolutely no chance of success. Having satisfied himself that there were triable issues, with some chance of success, he had. then to consider the damage likely to be suffered by the parties as a result of his Order. The trial of the present action would take place within a matter of months, and any damages suffered by Madam Ng could be fully compensated by the payment of rent or mesne profits assessed at the current market value. On the other hand, if Madam Lai and her sub-tenants were now evicted, and Madam Lai subsequently succeeded, it would not be possible to restore them to their original positions. Thus the damages to be suffered by the tenant and her sub-tenants were far greater than those of the landlord. 4. The learned Judge added that in retrospect (for he had reduced his oral reasons into writing for the purpose of this appeal) he felt that in fairness to Madam Ng he ought to have ordered an early trial But he felt that such an Order had little meaning as it was always subject to the state of the lists In regard to the contention that Madam Lai should have sued her own Solicitors rather than Madam Ng, while this was certainly an alternative open to her, it was for her to decide which course she should pursue. 5. It is well settled that a judgment or order made by consent can be set aside on any of the grounds upon which an agreement can be set aside (Wilding v. Sanderson [1897] 2 Ch.534) but that the only means open to a party to set aside such a judgment or order once it is passed and entered is to bring a fresh action for that purpose (Ainsworth v. Wilding [1896] 1 Ch. 673 and de Lasala v. de Lasala [1980] A.C. 546). So far, then, the judge below was right. But the matter did not end there for on the application under 0.18 r.19 it was incumbent on the Judge to consider, inter alia, whether the Particulars of Claim disclosed a cause of action against Madam Ng. It does not seem to us that material facts were pleaded that would found a claim to set aside the consent judgment on the ground of mutual mistake of fact (as happened in Wilding v. Sanderson)As regards her Solicitors' want of authority, if this could be relied upon by Madam lai, she would have to plead and show that despite their implied authority to compromise the action, there was a limitation on such implied authority which had been brought to the attention of Madam Ng - Welsh v Roe (1918), 87 L. J. K. B. 520, a case which does. not appear to have been referred to the Judge. As formulated, therefore, the action was bound to fail and we had no doubt that Madam Ng's application to strike out the Particulars of Claim should have succeeded 6. It may well be that Madam Lai has a viable cause of action against her Solicitors. We do not think it would be right to say any more on this subject since the matter night come before the courts.
Representation: Mr. Anthony Ismail (Hampton, Winter & Glynn) for the Appellant Respondent in person. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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