LSL v. WYF

FCMC 3527 / 2019

[2026] HKFC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3527 OF 2019

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REASONS FOR DECISION

( Master’s appeal in respect of an order to amend an order
given in an ancillary relief judgment )

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The appeal application

1.  The respondent wife (“wife”)  of this case filed a summons on 20 February 2026 to appeal an order made by a master of the family court (as the practice master)  on 17 April 2024 (“Master’s Order”). The Master’s Order, made upon an ex-parte application by the petitioner husband (“husband”), essentially provides that:

(1)  Leave shall be granted for the husband to amend an order made by me on 28 April 2023;

(2)  There be no order as to costs of and occasioned by the amendment.

2.  Upon hearing from the parties in the hearing of 27 April 2026, I dismissed the wife’s appeal application, with reasons for decision to be handed down. Further, I reserved the question of costs to be determined in this decision. The following are my decisions with reasons.

3.  This decision is written in English, though the written submissions are in Chinese. Both parties should have a good grasp of English, because they had studied and obtained university degrees in the UK when they were young. However, the wife, now a litigant in person, may approach the family court for arrangement of the interpretation service of this decision from English into Cantonese, if necessary.

Some background facts

4.  For the purpose of this decision, there is no need for me to repeat the background of the parties and the case history. These may be gleaned from the final ancillary relief judgment handed down by me on 28 April 2023 (“AR Judgment”)[1], in particularly at para 10 to para 26.

5.  At the time of the ancillary relief trial, both parties were legally represented. The wife was on legal aid.

6.  Subsequent to the handing down of the AR Judgment, the husband’s solicitors drew up and filed the orders given in the AR Judgment (“AR Order”).

7.  For easy reference, I set out the costs order made by me in the AR Judgment[2]:

“There be a nisi order that there be no order as to costs of the ancillary relief matters between the parties including all costs previously reserved, save that the wife [ie the Respondent] shall bear the costs of this ancillary relief trial, with certificate for counsel. This nisi order shall be made absolute within 14 days of the date of the judgment.”

8.  There is no appeal in respect of the AR Judgment, or the aforesaid costs order.

9.  However, when the AR Order was drawn up, sealed and filed by the husband’s solicitors, the costs order therein was wrongly stated as follows:

“There be a nisi order that there be no order as to costs of the ancillary relief matters between the parties including all costs previously reserved, save that the Petitioner [ie the husband] shall bear the costs of this ancillary relief trial, with certificate for counsel. This nisi order shall be made absolute within 14 days of the date hereof.”

10.  Eight months later, by their ex-parte letters dated 12 January 2024 and 14 March 2024 to the family court, the husband’s solicitors applied to amend the costs order in the AR Order. The application was placed before the practice master who approved of the application on 17 April 2024, and made the Master’s Order set out at [1] above.

11.  The AR Order (as amended)  was re-filed on 29 April 2024.

12.  By her summons filed on 20 February 2026, the wife seeks to appeal the Master’s Order. Her grounds as revealed in her summons, and written and oral submission made in this hearing, are:

(1)  The husband failed to take out a summons to amend the AR Order, in breach of Order 20 rule 11 of the Rules of the District Court, Cap 336H;

(2)  The husband’s solicitors failed to serve the Master’s Order, and give a notice of motion to the wife before they applied to amend the AR Order, in breach of Order 8 rule 2 of the Rules of the District Court;

(3)  The husband failed to take any steps to deal with the non-compliance with the rules, despite the wife’s reminder(s)  made in her documents filed with the court on 10 October 2025.

Discussion

13.  It is trite law to say that an appeal of an order made by a master before a judge is dealt with by way of a re-hearing as if the matter came before the judge for the first time. And the judge is not bound by the decision of the master in any respects (See: Hong Kong Civil Procedure (2026)  at para 58/1/2).

14.  It also needs to be pointed out that by virtue of rule 3 of the Matrimonial Causes Rules, Cap 179A, the Rules of the High Court, Cap 4A (RHC), not the Rules of the District Court, should be applicable to matrimonial proceedings including this case.

Delay

15.  Order 58 rule 1 (3)  of the RHC states that an appeal from an order of the master to a judge must be issued within 14 days after the order.

16.  The Master’s Order was made on 17 April 2024. The wife did not take out her summons to appeal the Master’s Order until 20 February 2026. There is thus no question that her appeal application was made out of time for about 22 months.

17.  The wife responded in her written submission that time extension to appeal could be given to her pursuant to Order 58 rule 2(10).

18.  The legal principles on whether an extension of time for appeal should be granted are well settled, which are summarized as follows:

(1)  The Court has discretion to grant or refuse an extension of time for appealing;

(2)  The factors to be taken in account are :

(a)  the length of the delay;

(b)  the reasons for the delay;

(c)  the chances of success of the intended appeal; and

(d)  the prejudice to the other party if time is extended;

(3)  Where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success.

(See:  The Hongkong and Shanghai Banking Corporation Ltd v Sy Shun Wu & Ors [2018] HKCA 736; Secretary for Justice v The Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125).

19.  The wife did not provide any reasons for delay until she submitted her written submission during the hearing. The husband’s solicitors did not take issue with this late filing of her written submission. The relevant reasons for delay given by the wife are:

(1)  The husband failed to give her a notice of motion pursuant to Order 8 rule 2 of the Rules of the District Court;

(2)  The husband has never served the Master’s Order on her. She got hold of it for the first time when the husband’s solicitors served the hearing bundle on her on 24 April 2026. As a result of the husband’s failure to serve the Master’s Order on her, her application for extending the legal aid certificate to cover this appeal was hindered, and thus caused this delay.

20.  Upon due consideration, I do not accept the wife’s reason for delay by relying on Order 8 rule 2, as I do not see the relevancy and logic therein. 

21.  It is the mere say-so of the wife that the Master’s Order was not served on her. However, she was legally represented when the Master’s Order was made, drew up and filed, and the same should and would be served on her solicitors, but not directly on her. It is telling that there is no evidence that the wife’s former solicitors had ever complained to the husband’s solicitors about the lack of service of the Master’s Order.

22.  Further, even if (just assuming)  the Master’s Order was not formally served on the wife’s former solicitors, it is indisputable that the AR Order (as amended)  was duly served, because her former solicitors sent a copy of it to her by email of 6 May 2024.[3] At the left upper corner of the AR Order (as amended), it is clearly stated that the amendment was made pursuant to the Master’s Order made on 17 April 2024.  There is thus nothing to prevent the wife (and her former solicitors), upon being served with the AR Order (as amended), to forthwith demand the husband’s solicitors to serve the Master’s Order on her (in order to report to the Director of Legal Aid for the purpose of applying to extend her legal aid certificate to cover the appeal), and then take out the appeal summons. Alternatively, her former solicitors could have conducted a search into the court files and obtained a photocopy of it.

23.  I therefore conclude that the delay on the part of the wife to issue her appeal summons is inordinate and serious. She is unable to provide any valid explanation for the delay.

Merits

24.  I shall deal with her grounds of appeal in the sequence set out at [12] above.

25.  In relation to ground (1), Order 20 rule 11 of the RHC provides that clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission may be corrected by the court “on summons” without an appeal.

26.  In this case, the blatant mistake was made on the part of the husband’s solicitors, in that they accidentally and/or incorrectly stated in the AR Order that the “husband” (but in fact it should be the “wife”)  should bear the costs of the ancillary relief trial. It is crystal clear that the costs order that was wrongly drawn up and sealed is clearly not the intention of this court in the AR Judgment. It is thus very clear and necessary that the costs order in the AR Order has to be amended to reflect the true intention of this court.

27.  On the mode of application, I have the following to say.

28.  First, Order 20 rule 11 of the RHC only says that the application “may” (not the obligatory word of “shall”)  be made “on summons”.

29.  Second, para 20/11/3 of the Hong Kong Civil Procedure 2026 explains that “notwithstanding the wording of this rule, in certain cases application is (made)  ex parte to a master”.  I am of the view that the mistake made by the husband’s solicitors in drawing up the AR Order in the circumstances of this case is so clear and obvious that an application by way of an ex-parte letter with explanation is sufficient.

30.  It is, however, not satisfactory that the said ex-parte letters of the husband’s solicitors were not copied to the wife at the same time.

31.  On the other hand, the wife argued that she had suffered prejudice as a result of the husband’s ex-parte application to amend the AR Order. She claimed that had the husband taken out a formal summons to amend the AR Order, she would have the chance to make submission and there was a likelihood that she would be able to successfully object to the amendment.

32.  It is revealed by the wife in this hearing that the husband’s claimed costs of the ancillary relief trial are as high as $800,000. Obviously, if the wife was really able to successfully object to the amendment of the costs order in the AR Order, she would not need to pay the husband’s costs.

33.  In the hearing, I asked the wife to explain how she would successfully object to the amendment. As far as I can gather it from her, she suggested that the AR Judgment provided that the costs order would become absolute within 14 days of the date of the judgment. Hence, the time for the husband to amend the costs order within the time limit of 14 days had lapsed.

34.  I reject this line of argument of the wife. The AR Judgment does not set any time limit for the parties to make an application for amending an obvious and accidental mistake in the AR Order to reflect the true intention of this court in the AR Judgment. I really cannot see how the wife could successfully object to the amendment if the amendment application was made on summons.

35.  Further, I must point out that the wife was fully aware of the mistake in the AR Order drawn up by the husband’s solicitors. Her solicitors had pointed out the mistake to the husband’s solicitors in their letters dated 11 January 2024 and 23 January 2024. The letter of 23 January 2024 was enclosed in a cover letter sent by the wife herself to the court on 26 January 2024.  In such circumstances, it must be within the understanding of the wife (and her former solicitors)  that the AR Order had to be amended to reflect the true intention of the court. I am thus of the view that there was no serious prejudice caused to the wife even if the application to amend the AR Order was made by way of an ex-parte letter.

36.  During the hearing, the wife also orally mentioned that had the husband taken out the amendment application by summons, she would have the chance to seek costs from the husband, as her former solicitors had sent chaser letters to the husband’s solicitors, reminding them of the mistake made in the AR Order. I shall deal with this point when I consider the costs of this appeal summons.

37.  As to ground (2)  of the wife’s objections, I only need to say that I fail to see how Order 8 rule 2 is relevant and applicable to this appeal application. I reiterate my observation in the preceding paragraph that the wife was all along aware of the mistake of the husband’s solicitors made in the AR Order.

38.  Her ground (3)  is actually a complaint of delay on the part of the husband to amend the costs order. I accept that there was delay, but such delay would not constitute a successful ground to object to the amendment.

Conclusion

39.  For the inexcusable delay of the wife in issuing this appeal summons and for all reasons set out above, the ex-parte application by the husband to amend the AR Order, in order to reflect the true intention of the court in the AR Judgment, is allowed. In other words, I fail to see how the master was wrong in granting the ex-parte amendment application.

40.  The wife’s appeal summons was thus dismissed by me in the hearing.

Costs

41.  The husband originally asked for costs on an indemnity basis in his favour, arguing that the wife’s appeal summons is frivolous and without merits. However, his solicitors conceded at the beginning of the hearing that costs should be assessed on a party-and-party basis.

42.  The wife, on the other hand, says that indemnity costs should be granted in her favour. In particularly, she seeks her costs of these chaser letters written by her former solicitors reminding the husband’s solicitors to amend the AR Order which was wrongly drawn up.

43.  It is well settled law that costs are within the discretion of the court which shall have full powers to determine by whom and to what extent the costs are to be paid (See: Order 62 rule 3 of the RHC). It is further said that the court’s discretion on costs in family cases is very wide (See: HK v BD, CACV 252 of 2009, date of judgment 15/10/2010, per Hartmann JA (as he then was); Gojkovic v Gojkovic [1992] Fam 40).

44.  On the issue of costs in this case, I take into account the following matters:

(1)  the fundamental and plain mistake in drawing up the AR Order was definitely made by the husband’s solicitors;

(2)  the costs order in the Master’s Order was made by the master on his own motion, without hearing from either party;

(3)  despite (2)  above, there was a serious and unacceptable delay on the part of the wife in applying to appeal the Master’s Order, in particularly the costs order made by the master;

(4)  despite (2)  above, the likely costs involved for a simple amendment summons (which would have been fixed for merely 10 minutes in the family court)  would be minimal;

(5)  there is no merit in the wife’s appeal of the amendment of the AR Order.  

45.  Upon considering the above matters in the round and the overall circumstances of the case, I am of the view that there should be no order as to costs of the wife’s appeal application, including all costs reserved, if any.

46.  Lastly, I would take this opportunity to remind family law practitioners that in a similar ex-parte application of this nature, it is a good practice that their solo letter(s)  to the family court should also be copied to the other side at the same time for reference.

47.  This court order shall be drawn up by the husband forthwith.

[1]  [2023] HKFC 76.

[2]  Para 106(8) of the AR Judgment.

[3]  Para 14 ii of the wife’s written submission dated 27/4/2026.