SLWE AND OTHERS v. CTT AND ANOTHER

SLWE AND OTHERS v. CTT AND ANOTHER

Section 8 does not place the High Court in the position of an appellate court to set aside a Family Court guardianship order obtained through an allegedly irregular ex parte application; the correct remedy is to apply to the Family Court to set aside the 17 December 2009 order for material irregularity. Given...

Source-derived case information.

Citation
SLWE AND OTHERS v. CTT AND ANOTHER
Parties
1st Applicant: SLWE; 2nd Applicant: YSP; 3rd Applicant: LWLA; 1st Respondent: CTT; 2nd Respondent: KYK
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 July 2010
Case Number
HCMP1237/2010
Procedural Posture
Application Under Guardianship of Minors Ordinance (cap.13) Section 8 to Remove Guardians / Oral Judgment in Chambers Following Hearing on Originating Summons
Outcome
Originating summons not granted; parties to apply to the Family Court to set aside the Family Court guardianship order of 17 December 2009 by consent; limited costs order granted in favour of Applicants
Legal Topics
Removal of Guardian, Ex Parte Proceedings, Material Irregularity, Costs
Source Language
en
Family Law Guardianship Child Welfare Civil Procedure Removal of Guardian Ex Parte Proceedings Material Irregularity Costs

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Parties

SLWE

1st Applicant

YSP

2nd Applicant

LWLA

3rd Applicant

CTT

1st Respondent

KYK

2nd Respondent

Procedural Posture

Application Under Guardianship of Minors Ordinance (cap.13) Section 8 to Remove Guardians / Oral Judgment in Chambers Following Hearing on Originating Summons

Legal Issues

  1. 1 Whether the High Court should exercise s.8 to remove a guardian where the Family Court granted guardianship following an ex parte application alleged to be materially irregular
  2. 2 Whether s.8 of the Guardianship of Minors Ordinance functions as an appellate substitute for setting aside a Family Court guardianship order
  3. 3 Whether the solicitors for the respondents breached their duty of full and frank disclosure in ex parte proceedings and the appropriate sanction/remedy

Ratio Decidendi

Section 8 does not place the High Court in the position of an appellate court to set aside a Family Court guardianship order obtained through an allegedly irregular ex parte application; the correct remedy is to apply to the Family Court to set aside the 17 December 2009 order for material irregularity. Given respondents' undertaking to consent to setting aside and return the matter to the Family Court, the High Court will not make substantive orders on the originating summons but will determine costs for the High Court hearing.

Court Disposition

Originating summons not granted; parties to apply to the Family Court to set aside the Family Court guardianship order of 17 December 2009 by consent; limited costs order granted in favour of Applicants

Orders

  • Respondents' solicitors to pay Applicants a gross sum of HK$35,000 for the High Court hearing, payable forthwith
  • No other order as to costs