HONG KONG KAM LAN KOON LTD v. REALRAY INVESTMENTS LTD

cacv 146/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 146 of 2005

(on appeal from HCA NO. 15824 of 1999)

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R U L I N G

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1.  I am dealing now with a procedural summons and that summons, in effect, asked the question as to whether a single judge of the Court of Appeal can make an order in terms of a consent order which allows an appeal.  In my view, there is no difficulty in a single judge making an order in terms of a consent order provided that there is true consent between the parties and provided it is a proper order to make.

2.  Whenever a single judge, or any judge, endorses a consent order whatever its nature, it is up to the court to decide whether it is a proper order to make and, in some cases, consent orders are submitted which are not proper orders for a court to make or which the court does not agree to make and I do not propose to expound on the reasons.  All I would say is that one is more cautious when an appeal is allowed because one of the things that a judge would look out for is as to whether third party rights might be affected and, if third party rights were affected by such an order, then of course the court would query the matter.

3.  There are reasons why the court might seek to have further information provided but, as a matter of principle, there is no objection that I can see to a court making an order in terms of a consent order which allows an appeal any more than there could be an objection to a court making a consent order dismissing an appeal.  I have to say, that is almost an everyday occurrence and I have already made such an order this morning before coming into court.

4.  I will therefore rule accordingly and, in so far as any costs have been incurred in that determination, I will hear the parties as to those costs.

Submissions on Costs

5.  So far as costs are concerned, I think that my role is very limited.  What I have determined today is that a single judge can sign a consent order.  In so far as the costs have been incurred in respect of that, I think that the defendant by the original action, the plaintiff by the counterclaim, is entitled to that because they have succeeded on that.  Over and above that, I do not think it is my province to deal with the costs.  It is not my province to deal with costs that have arisen by reason of arguments between the parties as to the exact wording of the consent order which they coming to.  That is finally taken care of in the consent order and it is either agreed or it is not agreed.  But as far as the costs have been incurred in obtaining the ruling, up to my ruling, then I am afraid it seems clear to me that the party that won is entitled to that and I so order that the costs of this determination be to defendant by original action.