FHK v. YSY

FHK v. YSY

The ex parte application for leave to appeal out of time was set aside because it was not properly filed or served and its continued existence unfairly prevented the decree nisi being made absolute, constituting an abuse of process; accordingly the intended appeal proceedings were dismissed and costs were ordered to be taxed under the Legal Aid Regulations.

Citation
FHK v. YSY
Parties
Petitioner: FHK; Respondent: Respondent
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 May 2007
Case Number
HCMP1325/2006
Procedural Posture
HCMP 1325/2006 Court of Appeal (application for Leave to Appeal Out of Time; Appeal From FCMC No.4228/2003) / Chambers Decision on Summons to Set Aside Ex Parte Application
Outcome
Ex parte application for leave to appeal out of time set aside; proceedings dismissed; costs awarded to petitioner and to be taxed under the Legal Aid Regulations.
Legal Topics
Decree Nisi, Leave to Appeal Out of Time, Service of Process, Abuse of Process, Setting Aside Ex Parte Application, Costs Taxation
Source Language
EN
Family Law Civil Procedure Court of Appeal Legal Aid Decree Nisi Leave to Appeal Out of Time Service of Process Abuse of Process +2 more

Case Brief

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Parties

FHK

Petitioner

Respondent

Respondent

Procedural Posture

HCMP 1325/2006 Court of Appeal (application for Leave to Appeal Out of Time; Appeal From FCMC No.4228/2003) / Chambers Decision on Summons to Set Aside Ex Parte Application

Legal Issues

  1. 1 Whether an ex parte application for leave to appeal out of time should be set aside for failure to file and serve the originating application
  2. 2 Whether the existence of an unserved ex parte application justifies dismissal of the intended appeal proceedings and allowing the decree nisi to be made absolute
  3. 3 Whether leaving proceedings in limbo constitutes abuse of process and warrants relief

Ratio Decidendi

The ex parte application for leave to appeal out of time was set aside because it was not properly filed or served and its continued existence unfairly prevented the decree nisi being made absolute, constituting an abuse of process; accordingly the intended appeal proceedings were dismissed and costs were ordered to be taxed under the Legal Aid Regulations.

Court Disposition

Ex parte application for leave to appeal out of time set aside; proceedings dismissed; costs awarded to petitioner and to be taxed under the Legal Aid Regulations.

Orders

  • Set aside the ex parte application for leave to appeal out of time dated 27 June 2006 in HCMP 1325/2006
  • Dismiss the proceedings