LCM v. LYY

LCM v. LYY

Where a decree absolute was procured by a false affirmation supporting substituted service and the absent spouse had in fact no time or opportunity to appeal the decree nisi, the Court of Appeal will allow an appeal and set aside the decree nisi and decree absolute; s.14(3)(d) HCO does not bar the appeal in those...

Source-derived case information.

Citation
LCM v. LYY
Parties
Petitioner: LCM; Respondent: LYY
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
3 June 2003
Case Number
CACV445/2002
Procedural Posture
Divorce Appeal / Appeal to Court of Appeal (judgment) From FCMC 6496 of 2000
Outcome
Appeal allowed; decree absolute and decree nisi set aside.
Legal Topics
Service of Process, Substituted Service, Decree Nisi and Decree Absolute, Setting Aside Judgment Obtained by Fraud, Leave to Appeal, Statutory Construction of Appeal Restrictions
Source Language
en
Family Law Civil Procedure Fraud (civil) Service of Process Substituted Service Decree Nisi and Decree Absolute Setting Aside Judgment Obtained by Fraud Leave to Appeal +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

LCM

Petitioner

LYY

Respondent

Procedural Posture

Divorce Appeal / Appeal to Court of Appeal (judgment) From FCMC 6496 of 2000

Legal Issues

  1. 1 Whether substituted service obtained by a false affirmation invalidates the decree nisi and decree absolute
  2. 2 Whether a decree absolute obtained by fraud can be set aside by appeal to the Court of Appeal
  3. 3 Application and scope of s.14(3)(d) High Court Ordinance to appeals from decree absolute including District Court orders

Ratio Decidendi

Where a decree absolute was procured by a false affirmation supporting substituted service and the absent spouse had in fact no time or opportunity to appeal the decree nisi, the Court of Appeal will allow an appeal and set aside the decree nisi and decree absolute; s.14(3)(d) HCO does not bar the appeal in those circumstances and the proper remedy in this case was an appeal to the Court of Appeal rather than re‑hearing or fresh action because of s.18 MCO.

Court Disposition

Appeal allowed; decree absolute and decree nisi set aside.

Orders

  • Decree absolute set aside
  • Decree nisi set aside