LLWL v. MCM

FCMC 2917 /2023

(FCMC 917 / 2022)

[2023] HKFC 130

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 2917 OF 2023

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DECISION
(Leave to Appeal)

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Introduction

1.  The petitioner (“the wife”) filed a summons for leave to appeal on 28 March 2023 against a costs order made pursuant to a consent summons filed on 8 December 2022 (“the Consent Summons”).

Background

2.  On 31 January 2022, the wife petitioned for divorce on ground of unreasonable behaviour (FCMC 917 of 2022), the parties then agreed to change the ground of divorce to that of one – year consent. What followed as most of the cases did, the parties filed the Consent Summons for directions the file a new petition and in that the parties have specifically agreed on costs of the main suit of FCMC 917 of 2022 be reserved. However, in the consent order granted by me on 7 February 2023, I granted an order that the costs of main suit be that of no order as to costs (“the Main Suit Costs). The order was perfected on 22 February 2023.

3.  The wife’s solicitors opposed such costs be ordered in her letter dated 16 February 2023. I reverted to the parties that this matter shall be dealt with in the forthcoming hearing on 9 March 2023.

4.  In the hearing of 9 March 2023, the wife had made clear that the Main Suit Costs order was erroneously ordered when parties had an agreement set out in the Consent Summons. In accepting the wife’s submission, I have indicated to the parties at the Main Suit Costs may be corrected by slip rule.

5.  Nonetheless, the husband disagreed. He submitted the Main Suit Costs order is a valid order because the Court may order otherwise. If the Court amended the Main Suit Costs to that of costs reserved, there would result a fundamental and radical variation of the costs. Slip rule is inapplicable here. The husband insisted no error of Court has been made and such should be maintained and should not be rectified in any way.

6.  Whilst the error of Court can be varied by way of a summons, the wife took out application for leave to appeal soon after the hearing on 9 March 2023.

7.  In accordance with the New Arrangement for Application for Leave to Appeal in the Family Court dated 13 August 2018, the wife has filed with Court her affirmation and draft grounds of appeal on 28 March 2023, her written submissions came late and was only lodged on 24 May 2023. The husband, on the other hand, filed his affirmation in opposition on 21 June 2023.

The issue

8.  The issue here is whether the Main Suit Costs order is made erroneously which can be amended pursuant to Order 20 rule 11.

Applicable legal principles

Amendment of orders

9.  Pursuant to Order 20 rule 11 of the Rules of High Court, clerical mistakes and judgments or order, or errors arising therein from an accidental slip or omission, may at any time be corrected by the court on summons without any appeal. It is general rule that an order or judgment cannot be amended after the same is sealed or perfected, nonetheless, the Court may at any time upon application order that a clerical mistake or that an error arising from the accidental slip or omission in an order be corrected under the slip rule. Sealing of an order is no bar to its application. (see Hong Kong Civil Procedure 2023 at 20/11/1)

10.  In Yau Wah Hing & anor v. Yuen Kay Ming (CACV 36 of 2012, 19 March 2013, unreported), Lam JA (as he then was) decided at paragraph 52 that the error, on the other hand, must be an error in express the manifest intention of the Court.

“52. … The jurisdiction under the slip rule and Order 20 Rule 11 should be confined to cases which are truly inadvertent or accidental errors or omissions. As stated at para 20/11/1 of Hong Kong Civil Procedure 2013 the error or omission must be an error in expressing the manifest intention of the court: the court cannot correct a mistake of its own in law or otherwise, even though apparent on the face of the order. Though it may also cover accidental omission on the part of counsel or solicitor (see Man Ping Nam v Man Fong Hang (No 2) [2007] 10 HKCFAR 140 para 20), it cannot be relied upon to claim a relief which had not been canvassed in pleadings or evidence...”

11.  In situation of a consent order or judgment, Deputy Judge Au (as he then was) gave a succinct account of how it could be done in Cathay Pacific Airways Flight Attendants Union v Cheung & Choy (a firm) (HCMP 1863/2007, 3 February 2009, unreported:

“28. It is common ground that the following general principles concerning the Court’s power to vary a consent order apply:

(1) A consent order may evidence a contract between the parties, in which case the court has no power to set it aside or vary its terms unless the usual grounds recognised in law to set aside or interfere a contract, such as fraud, mistake or misrepresentation, are established: Leung Yee v Ng Yiu Ming [2001] 1 HKLRD 309 (CA), 321H-J per Woo JA; Purcell v FC Trigell Ltd (t/a Southern Window & General Cleaning Co) [1971] 1 QB 358, 365F-G per Winn LJ.

(2) However, a consent order may only mean the parties to it not objecting to the order being made, in which case, the court has a discretion to vary its terms according to normal principles: Leung Yee, supra, 321H-J; Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; CY Tsun Investment Co Ltd v The Incorporated Owners of Hoi To Court (unrep., HCSA 16/2003, 2 July 2004, A Cheung J), paras 30-32.

12.  In a Court of Final Appeal case, Man Ping Nam v. Man Fong Hang (No.2) (2007) 10 HKCFR 140 on application of inherent jurisdiction of all level of courts to amend its sealed order:

“10. Even if an Order as drawn up is ambiguous, it is well settled that the court (at all levels) has an inherent or implied discretionary power to clarify the original order if the court’s intention appearing from the body of the judgment is manifest. As Lord Penzance stated in Lawrie v Lees (1881) 7 App Cas 19 at 34-35:

“I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court - to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain. I think that power is inherent in every Court.”

See also the cases cited in Hong Kong Civil Procedure 2007 at 20/11/1.

11. In the absence of any prejudice to the other party (in which event discretionary considerations may come into play), it matters not that an application for such clarification is made after the Court’s order has been sealed since it operates to make plain what the Court has in fact already decided. It does not involve the Court acting when functus officio.”

13.  In summary, all levels of Court have power to correct an erroneous Court order at any time, even after it has been perfected. For such amendment, the Court has to satisfy it is the manifest intention of the Court.

On granting leave to appeal

14.  Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336).

15.  Reasonable prospect of success connotes the prospect of succeeding in the intended appeal and must be reasonable and more than fanciful, without having to be probable. An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2023, §59/2A/4)

Discussion

16.  On admission on my part that the Main Suit Costs is ordered by error, I accept such order should be amended to that of parties’ agreement as per the Consent Summons. The reason being the issue on costs agreed in the Consent Summons was never argued between the parties, no submissions were ever made to seek the Court’s determination on costs. The Consent Summons was only submitted for approval, as a result, I fail to see there is other reason, apart from an error, that the Main Suit Costs has been ordered.

17.  The husband submitted the costs order agreed in the consent summons is not final and the Court has power to determine. He sees it had turned out to be a costs order in his favour and he insisted such order to be maintained.

18.  While the husband has raised rightly that “costs reserved” and “no order as to costs” are radically different costs orders, this might not be a kind of typographical error that the Court could have amended by slip rule. However, as I have indicated above, the Main Suit Costs was made in light of the Consent Summons, I gave no reason for determination on such costs to be otherwise and thus the manifest intention of the Court must not be “no order as to costs”. I am of the view that the Main Suit Order can be rectified by slip rule and the husband’s argument is bound to fail.

Conclusion

19.  I accept the wife’s appeal has reasonable prospect of success and therefore exercise my discretion to grant the wife leave to appeal.

Costs

20.  I order costs of the wife’s summons be in the cause of the appeal.

21.  I make the following orders:

(i)  Leave to appeal against the costs order dated 7 February 2023 be granted to the wife (“the petitioner”).

(ii)  Costs of this summons be in the cause of the appeal.