CML v. LMH

[English Translation – 英譯本]
HCMP 1743/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Miscellaneous Proceedings NO. 1743 OF 2008

(ON INTENDED APPEAL FROM FCMC NO. 655 OF 2004)

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

Application for leave to appeal

1. The petitioner applied for leave to appeal out of time against an order made by Deputy District Judge Kot on 7 August 2007.  The order was sealed on 15 August 2007, but the petitioner did not make the said application until 22 May 2008.

2. The application was dismissed by Judge Kot.  The petitioner then made the same application to a single Judge of the Court of Appeal, but the application was dismissed by Yeung JA.  The petitioner now renews her application before this Court.

Nature of the “consent order”

3. The order of Judge Kot dated 7 August 2007, which deals with the petitioner’s application for ancillary relief, is a “consent order” made pursuant to an agreement between the parties to the proceedings.

4. A “consent order”, which is made pursuant to an agreement between the parties, is an agreement or a contract binding on the parties.  The present application stems from the District Court, and the law requires the petitioner to obtain leave from the court before lodging an appeal.  Even in the case of an appeal as of right (e.g. an appeal from the Court of First Instance), there is an exception that an appeal against a “consent order” can be lodged only with leave of the court.  This highlights the peculiar nature of a “consent order”.

5. A party to a “consent order” must establish the existence of exceptional circumstances which justify rescission of the underlying agreement.  Exceptional circumstances include: the applicant erroneously consented to the agreement, he was misled by the misrepresentation of the other party into giving his consent to the agreement, or the court considers it grossly inequitable to require the parties to abide by the agreement.

Lack of sufficient grounds of appeal

6. Judge Kot did not accept the petitioner’s explanation that the delay in lodging the appeal was caused by her application for legal aid.  We respectfully concur with the Judge’s decision.  Even if we do accept the petitioner’s explanation of the delay in lodging the appeal, we do not think that she has put forward any sufficient ground of appeal so that we must grant leave to her and allow her to pursue the appeal.

7. The petitioner was legally represented when she appeared before Judge Kot.  According to the transcript of the audio recording of the hearing, both parties first indicated to the Judge that they had reached an agreement and signed a “consent order”, but as they had to discuss further the terms of the agreement, they repeatedly urged the judge to adjourn the case to enable them to hold further discussions.  They also sought directions from the Judge on certain issues in respect of the agreement.  Eventually, the Judge approved the “consent order” on the basis of the terms of agreement reached between the parties after further discussions.  The sealed order of the Judge contains all the terms of the agreement between the parties.  This being the case, the petitioner could not possibly have misunderstood any term of the agreement or mistakenly given her consent to those terms.

8. The petitioner submits that on the day of the hearing, her lawyer was given a letter by the defendant’s lawyer, which stated that the respondent had lost his job.  The petitioner contends that the statement was untrue and that the respondent had failed to fully disclose his financial status.  As a matter of fact, in her judgment refusing to grant leave to appeal out of time, Judge Kot has already dealt with these two contentions.  The Judge pointed out that the petitioner had confirmed to the court that the respondent had told her he only had his income reduced and he had not lost his job.  Furthermore, it was not only after the conclusion of the hearing that the petitioner became aware of the respondent’s failure to fully disclose his financial status.  In these circumstances, it cannot be said that the petitioner was misled by a misrepresentation of the respondent into reaching an agreement with him.

9. The petitioner also accused her lawyer of dereliction of duty, but,  having considered the written explanation submitted by the lawyer in response thereto, the Judge rejected the petitioner’s accusation.  In the circumstances, there is simply no question of gross inequity in the present case.

Conclusion

10. As the petitioner has failed to put forward any sufficient ground of appeal, her application falls to be dismissed.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.