MEG v. DCBS

HCMP 929/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 929 OF 2000

(ON AN INTENDED APPEAL FROM FCMC 6831/1991)

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J U D G M E N T

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Hon Rogers JA :

1. This is an application for leave to appeal from an order of Deputy Judge Geiser given on 4 January this year. This application is being renewed having been refused by a single judge.

2. It is only in exceptional circumstances that agreements of the type which are sought to be enforced in this case, namely the order of Deputy Judge Gill in 1993 might be set aside either on the grounds of duress or a material change of circumstances. This is particularly so where the agreements are said to have been made freely and with legal advice at the time. The change of circumstances must be one which rendered the agreement unjust to be enforced. It has to be emphasised that when such an appeal comes to be heard, there is an extremely heavy burden on the appellant to discharge if he is to be successful on the appeal.

3. In the circumstances of this case, I consider it is arguable that there has been a material change in circumstances. I would also add that I am concerned that all the evidence that was not admitted in the court below before Deputy Judge Geiser was necessarily inadmissible. Finally, questions arise as to whether the making of a committal order at this stage and whether the form of it was appropriate.

4. For those reasons, I am minded to give leave to appeal but with the caveat that it is an extremely heavy burden which the appellant would have to discharge.

Hon Ribeiro JA :

5. I agree and have nothing to add.