PDSL10.3 Guidance on Setting Aside a Consent Order on Ancillary Relief

PRACTICE DIRECTION – SL10.3

Guidance on Setting Aside a
Consent Order on Ancillary Relief

Purpose

1.  In this Guidance, “a consent order on ancillary relief” means any order made by the court upon the consent of the parties to matrimonial proceedings under sections 4, 5, 6, 6A or 29AG of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“the Ordinance”) and includes part of such an order.

2.  This Guidance deals with the relevant practice and procedure for setting aside a consent order on ancillary relief where no error of the court is alleged.  If an error of the court is alleged, an application for leave to appeal against the order under section 14(3)(e) of the High Court Ordinance (Cap 4) or section 63(1) of the District Court Ordinance (Cap 336) should be considered.

3.  Application by way of a summons for setting aside a consent order in existing proceedings is normally not permissible.  This procedural route is available only if the case falls within a very limited scope, for instance the application is uncontested or the mistakes relied upon for setting aside the consent order are not in dispute.^[1] Therefore, unless the very limited scope exists in which case application by way of a summons to the court making the original order is permissible, otherwise the following procedure shall apply.

A.      Commencement of Proceedings

4.  Application for setting aside a consent order on ancillary relief shall be made -

(1)  by way of a fresh action in the Court of First Instance or, where the District Court has the jurisdiction under Part IV ofthe District Court Ordinance (Cap 336), in the District Court; and

(2)  (i)      where there is substantial dispute as to facts, by way of Writ of Summons;
        or
        (ii)     where appropriate, by way of Originating Summons.

5.  The proceedings would usually be open to the public.  Practice Direction – 25.1 (Chambers Hearings in Civil Proceedings in the High Court, the District Court and the Lands Tribunal) applies to proceedings governed by this Guidance.

B.       Transfer of Proceedings

6.  Where an action is commenced in the Court of First Instance, the court may, pursuant to sections 43 or 44 of the District Court Ordinance (Cap 336), transfer the action to the District Court (including the Family Court which is a division of the District Court assigned by the Chief Justice to deal with Matrimonial Proceedings and / or Family Proceedings) so that the action can be tried in the District Court or by the original family judge whose order the plaintiff is seeking to set aside.

C.      Case Management

7.  Since an action to set aside a consent order to which this Guidance applies is an ordinary civil action, Practice Direction 5.2 (Case Management) applies to such proceedings.

8.  Where an action is commenced in the District Court, the judge or master, in the exercise of its case management powers, may on his own motion or upon application, set the case down for trial by the original family judge whose order the plaintiff is seeking to set aside.

9.  The court has a full range of case management powers and considerable discretion as to how to determine an action to set aside a consent order on ancillary relief, including where appropriate the power to strike out or summarily dispose of an application to set aside.  If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so, especially if there are third party claims to the parties’ assets.  Ordinarily, once the court has decided to set aside an order, the court would give directions for a full rehearing to re-determine the original ancillary relief proceedings or make such other orders as may be appropriate to dispose of the proceedings.

Commencement

10.  This Guidance shall come into effect on 11 February 2019.

Dated this 18th day of January 2019