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HCMP 765/2008
in the high court of the
hong kong special administrative region
court of appeal
MISCELLANEOUS PROCEEDINGS no. 765 of 2008
(on AN INTENDED appeal from HCA NOS. 1255 and 1309 of 2007)
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HCA 1255/2007
BETWEEN
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YAU TAK |
Plaintiff |
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and |
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YAU NGAI |
1st Defendant |
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YAU SIU CHAN |
2nd Defendant |
________________________
HCA 1309/2007
BETWEEN
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YAU NGAI (游毅)
(also known as YAU SIU YING JOHN) |
1st Plaintiff |
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YAU SIU CHAN (游紹燦)
(also known as WILLIAM YAU) |
2nd Plaintiff |
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ITALINA (HK) IMITATION
JEWELLERY MFG. LTD.
(意大利(香港)首飾廠有限公司) |
3rd Plaintiff |
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and |
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YAU TAK (游德)
(also known as PETER YAU) |
1st Defendant |
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IAO SIO FAI (游紹輝) |
2nd Defendant |
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IAO SIO FAN (游少芬) |
3rd Defendant |
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IAO SIO MENG (游紹明) |
4th Defendant |
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YOU SHAO MIN (游紹民) |
5th Defendant |
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ITALENA JEWELLERY (HOLDING) LIMITED
(伊泰蓮娜首飾(集團)有限公司) |
6th Defendant |
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ORIENTAL INTERNATIONAL
JEWELLERY (HOLDING) LIMITED
(東方國際首飾(集團)有限公司) |
7th Defendant |
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WONG PUI WAH (王蓓華) |
8th Defendant |
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DENG JUEI CHUN (鄧瑞春)
trading as
BESTR TRADING CO. (一紅企業香港公司)
(formerly known as
OPTIMA TRADING CO. (一紅企業香港公司)) |
9th Defendant |
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Before: Hon Rogers VP in Chambers
Date of Hearing: 28 April 2008
Date of Decision: 28 April 2008
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D E C I S I O N
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1. This is an application for leave to appeal an order made by Deputy High Court Judge L. Chan, which was given on 14 March of this year. The application for leave to appeal out of time was made some fortnight or so after the time it should have been made.
2. The order made by the judge was an order for variation of a consent order. For my part, I take a very strong view about consent orders. I consider that they should not be varied, except under very exceptional circumstances. These orders that were made in the two actions were clearly carefully drawn up and I look on any variation of a consent order with a considerable degree of circumspection.
3. However, in this case, I am not satisfied that there has been any prejudice to the Applicants for leave to appeal out of time by reason of the making of the variation because the variation consisted of inserting into the provisions of the order what the parties seeking the variation said was a subsidiary company of a company that was already included. As part of the variation, is the inclusion under paragraph 14 of the undertakings given by the applicants for variation that the assets of that company will not be disposed of.
4. On that basis, I refuse it. But I do see that one thing may have gone wrong in the court below. My view is that anybody who comes for a variation of a consent order has to pay for it. He is asking for a considerable discretion of the court. It is not an ordinary exercise of discretion; it is an exceptional matter. The order for costs in the court below was no order as to costs for the hearing. I doubt that I would have made that myself. But as far as this case is concerned, I would not give leave to appeal in respect of that, because it is a matter of costs. The costs generated by any appeal would far exceed any relevant order and all an appeal would do would be to generate satellite litigation. Therefore, I refuse this application for leave to appeal.
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(Anthony Rogers)
Vice-President |
Mr John Hui, instructed by Messrs Oldham, Li & Nie, for the Plaintiff (in HCA 1255/2007) and the 1st to 9th Defendants (in HCA 1309/2007) /Applicants
Mr John M Y Yan SC and Ms Sara Tong, instructed by Messrs Jimmie K.S. Wong & Partners, for the 1st & 2nd Defendants (in HCA 1255/2007) and the 1st to 3rd Plaintiffs (in HCA 1309/2007)/Respondents
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