LEUNG KIT PING AND ANOTHER v. LEUNG SAU CHING and KWOK LAI YING,the executors of the estate of the deceased AND OTHERS

HCMP 1878/2020

[2021] HKCFI 3004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1878 OF 2020

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D E C I S I O N

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1.  This is an application by the 1^st, 2^nd, 4^th and 5^th defendants to set aside the consent order (“Consent Order”), which was made by this court earlier today after the court had obtained the express agreement of counsel for the defendants to the terms to be incorporated in the consent order.

2.  The application for setting aside was made orally by Mr Lai, counsel for the said defendants.

3.  The application was made on the basis that the 1^st defendant had misunderstood the effect of the Consent Order, in particular, paragraph 7 thereof, which provides that the 1^st defendant shall pay their own costs in the proceedings personally, whereas the 1^st defendant had thought that the basis of the settlement was that their costs would come out of the estate.

4.  The short point is that the 1^st defendant’s assertion of the alleged misunderstanding is wholly unsupported by evidence.  This is particularly troubling as the terms of the Consent Order are clear, and the court had taken the trouble of seeking confirmation from the defendants’ counsel, who had ostensible authority to settle the proceedings on behalf of the defendants, that the defendants agreed to the terms of the Consent Order.

5.  It is trite that an order made by consent is more than merely an order made by the court.  A consent order is generally considered to be contractual in nature and will only be set aside in exceptional circumstances (see Practice Note 42/5A/4, Hong Kong Civil Procedure 2021, at p 987).

6.  Apart from the question as to whether a misunderstanding on the part of a party, even if established, would amount to exceptional circumstances justifying the setting aside of the Consent Order, the application by the 1^st, 2^nd, 4^th and 5^th defendants is wholly unsupported by evidence.  In this regard, I am not prepared to accept evidence given by Mr Lai from the bar table as to the alleged understanding on the part of the 1^st defendant.

7.  For the reasons stated above, the application is refused.

8.  It is a matter for the 1^st, 2^nd, 4^th and 5^th defendants to decide if they would like to take the matter further and if so, how.

(Discussion re costs)

9.  I see no reason why costs should not follow the event.

10.  I order that the costs of the plaintiff and the 3^rd defendant of the application be paid by the 1^st, 2^nd, 4^th and 5^th defendants, such costs are to be taxed on a party-and-party basis if not agreed.

11.  I further order that the costs of the 1^st defendant of the application be borne by the 1^st defendant personally and not out of the estate.