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[English Translation - 英譯本]
CACV 238/2010
IN THE HIGH COURT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 238 OF 2010
(ON APPEAL FROM MATRIMONIAL CAUSES NO. 12780 OF 2008)
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HSF |
Petitioner |
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CMK |
Respondent |
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Coram: Hon Cheung, JA in Chambers
Date of Hearing: 15 April and 24 May 2011
Date of Decision: 24 May 2011
Date of Reasons for Decision: 10 June 2011
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REASONS FOR DECISION
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1. The petitioner filed a Notice of Appeal to appeal against the decision made on 28 August 2009 by Deputy District Judge C.K. Chan (as he then was). Subsequently, on 28 March 2011, the petitioner and the respondent filed a Request For Dismissal of Appeal By Consent (“the Request”). Both of them signed the Request, which stated:
“We, the above named Appellant and the Respondent, who are sui juris, HEREBY REQUEST the dismissal of the appeal (and the Respondent’s Notice) in the above matter filed on the 3rd day of November, 2010 (and on the 26th day of November, 2010 respectively) with no order as to costs.”
2. Seeing that both parties were unrepresented, after I received the Request, I ordered both of them to appear at a direction hearing to ensure that both of them would understand the legal consequences of their signing the Request.
3. Both parties appeared at the hearing held on 15 April 2011, when I asked them whether they consented to the dismissal of the appeal, the appellant said that he did not consent to the dismissal. He said that after he filed the Notice to Appeal, he also at the same time filed a summons in the District Court to apply for variation of the decision made by Deputy Judge Chan on 28 August 2009. In the hearing held on 22 March 2011, Deputy Judge Chan told the petitioner that his lodging an appeal on the one hand and on the other hand applying for variation of the order was an abuse of the court’s process, and that he could choose only one of these two courses of action. On the following day, i.e. 23 March 2011, the petitioner notified the Deputy Judge that he intended to have the appeal dismissed. Following that, the parties signed the Request for Dismissal on 24 March 2011 and filed it in court on 28 March 2011.
4. I needed to consider whether the petitioner could resile from the Request, so I adjourned the hearing to 24 May 2011. On that day, I ordered that the Request be converted into a court order for the following reasons: Generally speaking, after both parties signed a request for dismissal of appeal by consent, the appeal remains on foot and the court can, under proper circumstances, allow one of the parties to resile from the request, unless and until the court has made an order in terms of the request. However, if the request in question is a binding agreement, then the court has no power to allow any one of the parties to resile from it. Usually, when a party to an action requests to have his appeal dismissed, he is obliged to pay the costs of the opposite party. If the opposite party agrees to waive his right to the costs, that constitutes the consideration for his consent to the dismissal of the appeal and is an indication that the two parties have made a binding agreement: see National Benzole Co. Limited v. Gooch [1961] 1 WLR 1489 and Hong Kong Civil Procedure 2011 para. 59/0/21.
5. In this case, both parties agreed that there should be no order as to costs. This shows that they have made a binding agreement. That being so, I have no power to allow the petitioner to resile from the Request. The only option is to make an order in terms of the agreement.
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(Peter Cheung)
Justice of Appeal
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Petitioner, acting in person, present.
Respondent, acting in person, present.
Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law
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