HUA LING EDINGER v. LYNN WARD EDINGER

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REASONS FOR JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. This is an appeal, pursuant to leave granted by this Court, by Mr. Lynn ward Edinger against the dismissal by Judge Chism on 4th May 1990 of his application under rule 55 of the Matrimonial Causes Rules ("the Rules") to re-hear a cause tried by the judge on 27th April 1990 when a decree nisi of divorce was pronounced on a petition presented by his wife Mrs. Hua Ling Edinger. On 23rd May Judge Chism reviewed his order of 4th May under section 53 of the District Court Ordinance, Cap.336, and declined to alter his decision. On the same day he refused leave to appeal to this Court.

2. After we had heard Mr. Ian Payne for the husband, Mr. Cliff Mok (Who did not appear below) for the wife indicated that he had no submissions to make on the appeal. We thereupon allowed the appeal and set aside the decree nisi, as well as the other orders made by the learned judge on 27th April 1990. We now give our reasons.

3. For convenience we call the parties husband and wife. They were married in Singapore on 26th April 1975. They had a son who was born in 1979. They lived together in the USA for a year or so after their marriage and then for some time in Hong Kong.

4. On 12th January 1990 the wife filed a petition for divorce on the ground that the marriage had broken down irretrievably, the sole fact being relied upon was that her husband had behaved in such a way that she could not reasonably be expected to live with him (sections 11 and 11A (1) (b) of the Matrimonial Causes Ordinance, Cap.179.) There are 20 paragraphs of particulars.

5. The wife, by her petition, asked for custody of the child of the family, maintenance pending suit, secured periodical payments, a lump sum, a transfer of property order and a variation of settlement order. The petition was personally served on the husband on the day upon which it was filed. An acknowledgment of service on the prescribed Form 4, indicating an intention to defend the suit, was filed on his behalf, out of time, on 15th February 1990. It is undated.

6. For reasons which were later sought to be explained, no answer to the petition was filed by the husband in accordance with rule 18 of the Rules. The wife therefore applied, on 15th March 1990, for directions for the trial of the cause under rule 33 (1) (d) of the Rules, and it was fixed for hearing on 27th April. On that day, after a short hearing in the absence of the husband, the wife's petition for a decree nisi was granted. On the same day the judge ordered that all questions of custody and ancillary relief be adjourned for hearing in chambers on 27th June.

7. When the learned judge heard the husband's application under rule 55 of the Rules on 4th May 1990, he had two important affidavits before him. The first, dated 2nd May, was sworn by Mr. Michael Lintern-Smith a partner in the Hong Kong firm of Robertson Double, then acting for the husband. Mr. Lintern-Smith stated that he received a fax of the petition (with accompanying papers) on 19th January 1990 from the husband's American attorneys, True Walsh and Miller, advising that the divorce papers had been served on the husband on 12th January. The husband's American attorneys and he himself had then contacted the wife's solicitors, Haldane Midgley & Booth, and an extension of time to file the Form 4 had been given. On 15th February a Form 4 acknowledging service of the petition had been filed which indicated, inter alia, that the husband intended to defend the case.

8. Mr. Lintern-Smith then said that after perusing the petition it became apparent to him that Further and Better Particulars were required before the husband could file a full and detailed answer and/or cross-petition. After discussing matters with the husband and in an attempt to save costs, no application for Further and Better Particulars had been made. This was because divorce proceedings had been commenced in the Supreme Court of New York, County of Tompkins in or about August of 1989 by the husband himself. It was thought, he said, that the petitioner would not continue with the Hong Kong proceedings for reasons he would later give, and that the earlier, New York, proceedings instituted by the husband could proceed.

9. Mr. Lintern-Smith went on to say that in order to ensure that nothing further was being done in the Hong Kong proceedings he had arranged for a search to be made of the Court Registry file at the beginning of March 1990. It was found that no application for directions for trial had been made by them, but he had subsequently discovered that such an application had been made on 15th March. At that time he had also spoken to "the Petitioner's solicitor" from whom he had understood that no further action was being taken. He had heard nothing further from the Court or from the wife's solicitors.

10. The affidavit continues by saying that on the morning of Saturday, 28th April 1990, he had spoken to the wife's solicitor (Miss Elaine Longmore) who had told him that the Court had granted a decree nisi of divorce on Friday, 27th April. He had expressed surprise and concern about this and had indicated that he had received no notice from her or fromt the Court that directions for trial had even been sought or that a hearing date on the petition for divorce had been fixed. At no time had a notice of directions for trial been served on his firm and at no time had he received notification of the hearing date. He had caused a search to be made of his office to try to find out whether such a notice had been received and incorrectly filed, but to no avail. He added that on other occasions he had discovered that notices of the hearing of a petition had either not been received by his office, or even though such notices had been addressed to his firm, they had been delivered to the wrong address, or had been delivered in error to the other party's solicitors.

11. As an example, he produced a copy letter from Haldane Midgley & Booth enclosing a notice of hearing of a petition in another case (D J Suit No.5641 of 1989) which had been addressed to his firm but which had been sent in error to their own address. He drew the Court's attention to the fact that this error had occurred on the day before the hearing of the petition in the instant case. The solicitors involved were identical and were acting respectively for the petitioner and respondent. That notice had been posted on 25th April 1990, received by Haldane Midgley & Booth on 26th April (as indicated by their own "Received"stamp), and had had to be forwarded to his firm by post a few days later and was received on 30th April.

12. He was, he said, bringing this to the Court's attention to demonstrate that non-delivery of a notice of hearing of a petition had occurred the day before the gearing of this cause between the same solicitors firms. He believed that the notice of hearing of the petition in these proceedings had been delivered to the wrong address. As a result, neither he nor the respondent had known of the hearing on 27th April 1990.

13. Mr. Lintern-Smith went on to depose that at all times it had been the husband's intention to oppose the divorce petition because the allegations made were untrue; and to seek Further and Better Particulars to be followed by an answer. If a notice indicating the hearing date of the petition had been notified to him (the affiant) he would immediately have made an application to the Court for leave to file an answer and for leave to seek Further and Better Particulars of the petition.

14. Mr. Lintern-Smith then said that as a result of conversations with the wife's solicitors, he had been left with the impression that no further step would be taken in the Hong Kong proceedings. At no time had he been disabused of that notion.

15. A further matter which had reinforced his belief was that on 12th April 1990 a judgment from the Supreme Court, Tompkins County, State of New York had been handed down. A copy was annexed to his affidavit. That decision had rejected an argument by the wife that the New York Court had no jurisdiction and the Judge had stated "no jurisdiction has a more compelling connection". Although the Court did not grant Summary Judgment of Divorce, the wife had only until 15th May 1990 to submit papers to show cause why it. should not be granted. Mr. Lintern-Smith said he was not aware whether these facts had been brought to the attention of the Court on 27th April.

16. He went on to depose that immediately he heard that the decree nisi had been granted, he sent a fax to the wife's solicitors requesting further details. He annexed to his affidavit a draft request for Further and Better Particulars of the petition, and a draft answer to the petition which would have been filed had he husband's application been successful.

17. Mr. Lintern-Smith concluded his affidavit by saying that the husband's non-attendance at the hearing was due to a procedural irregularity i.e. the fact that no indication of the hearing date had been given to the husband and to the belief that the wife was taking no steps in the Hong Kong proceedings for the time being. He had spoken to the husband who had told him that he had talked to his wife on various occasions over the past few weeks and on no occasion had she indicated to him that she would be attending Court to give evidence in these proceedings.

18. The second affidavit which was before the judge was one sworn on the day of the Rule 55 hearing by Ms. Elaine Longmore, a consultant in the firm of Haldane Midgley & Booth, acting for the wife. She has the conduct of these proceedings on her behalf. She confirms that she agreed to an extension of time within which the husband could file the Form 4 acknowledgment and indication but points out that she had only agreed to an extension until 1st February 1990, whereas the Form had not been filed until 15th February and she had not been sent a copy by the husband's solicitors. She had received one from the Court only on 22nd February.

19. Ms. Longmore said that she could not of course comment as to the discussions between the husband and his solicitors, but on the day that the papers had been served upon him he had telephoned her and they had discussed certain matters about the case. In particular, she recalled that the husband had mentioned that he had commenced proceedings in the United States and, that in his opinion the Court there had jurisdiction. She had advised him that the Hong Kong Courts also had jurisdiction to entertain proceedings for divorce and they were therefore in a situation of competing jurisdictions. Neither she nor her client, the wife, accepted the allegation that Further and Better Particulars of the petition are/were required until an answer and/or cross-petition could be filed. Borh the husband and his solicitors were aware of the strict time limits in divorce actions. Notwithstanding any of the husband's allegations, the fact remained that the husband and/or his solicitors had not at any time filed an answer and/or cross-petition, sought an extension of time in which to file an answer or cross petition and/or to make the alleged request for Further and Better Particulars. Furthermore, at no time had the husband, through his solicitors, made a request either orally or in writing that the wife desist from taking any further steps in the Hong Kong proceedings. At no time had any indication been given to the husband's solicitors by herself that the Hong Kong proceedings would not be proceeded with.

20. We think it is desirable to quote verbatim from part of paragraph 5 of Ms. Longmore's affidavit:

21. Ms. Longmore goes on to point out that it is not the practice, nor a requirement, that one party informs the other that they have applied for directions for trial, nor to serve a copy of the notice. As to the occasion when the Notice of Hearing of another petition addressed to Me. Lintern-Smith's firm had inadvertently been sent to her firm, this was the only instance of which she was aware where this had happened either with that or any other firm.

22. In his reasons for his decision on 4th May 1990, the learned judge said that no adequate explanation had been given by the husband for his failure to file an answer or make an application for a stay within the prescribed time. The Court did not accept that the Notice of Hearing was not received by him. A very large number of Form 4s indicated an intention to defend but the actual number of actions that did proceed as defended petitions was less than 1 per cent and the wife had no reason at all to believe that the husband was serious in the absence of any further steps being taken by him.

23. The judge went on to say that both parties were seeking a dissolution, albeit in different jurisdictions, so that it was clear that the marriage had broken down irretrievably. Both parties were represented and, the Court believed, knew that custody and ancillary relief was dealt with independently of the dissolution itself and that the husband would not be prejudiced in any way in Hong Kong in presenting his case on these issues by the fact that a decree had been granted to the wife. He felt that to allow what the husband sought would produce no real benefit to the husband, who could argue on the issues not yet heard, but it would add unnecessarily to the costs.

24. In asking the Court to exercise its discretion in his favour, the husband had attempted to blame the wife for his own or his solicitors' negligence in failing to take proper steps.

25. In the judge's view the application was about money; not a genuine wish to defend a petition for the dissolution of a marriage. It might be that the husband had hoped that by delaying the return of Form 4, and then by masterly inactivity, he would be able to get his decree in New York and gain an advantage. If that was the case the gamble had failed.

26. The approved note of the judge's judgment concludes:

27. On the application of the wife, the same judge, on 11th May 1990, made an order transferring the action to the High Court under rule 32(1) of the Rules. On 14th May the wife took out a summons for an order that the husband take all possible steps to adjourn and or postpone the granting of a decree or judgment of divorce by the Supreme Court of New York, Tompkins County ("the New York proceedings") until the husband's application for leave to appeal against the judge's order of 4th May could be determined, or until further order. It was mainly to be able to make that application that the wife obtained the order to transfer the matter to the High Court. On 14th May, Hooper, J. rejected her application.

28. In his reasons for not altering his original decision after the review hearing on 23rd May 1990, Judge Chism said that having seen copies of the letters dated 1st February and 30th March from his then solicitors annexed to an affidavit sworn by the husband, he was more firmly convinced than before that the husband had deliberately taken the gamble he had suspected and had mentioned to in the judgment he had delivered on 4th May. The husband had not been full and frank in his disclosures to the Hong Kong or to the New York Court, e.g. as to his change of employment and subsequent residence. More importantly he was equally convinced that the husband would not be prejudiced in the ancillary matters. The cases cited by counsel on behalf of the husband on the review were all prior to the latest developments in matrimonial law but he would adopt the words of Sir Jocelyn Simon P. in Jakeman v. Jakeman and Turner [1964] P 420, at P.427: "I can see no purpose in ordering the decree to be set aside."

29. In his view, the judge said in conclusion, a re-hearing would add to the costs to no purpose. As we have seen, it was on this occasion that the learned judge refused leave to appeal to this Court.

30. On the review/application for leave to appeal hearing which took place on 23rd May 1990, Judge Chism had before him an affidavit sworn by the husband and dated 21st May. In it he said that after he had received the Hong Kong petition he had gone to see Mr. Lintern-Smith on 31st January with a view to defending the proceedings. With no knowledge of the law in Hong Kong, he was entirely dependent on him for advice. He was anxious that the New York proceedings (under which he had already paid very substantial sums of money to his wife) should continue to a decree. At the same time he was determined that no findings of the kind alleged against him in the petition should be made and that those proceedings should be defended if they. were pursued. He had made this clear to Mr. Lintern-Smith who had taken a full statement from him. On the following day Mr. Lintern-Smith wrote a letter to him and sent a copy of the statement. These are annexed to the affidavit. What Mr. Lintern-Smith had failed to tell him was that an answer should have been filed within 21 days of giving notice of intention to defend and the effect of rule 33(1)(d) of the Rules.

31. The statement runs to nearly 8 pages, closely typed. In it he told the full story of the matrimonial problems from his side and how, over a long period of time and with professional counselling he had decided that the marriage was beyond rescue. He explained how the separation agreement came about under which his wife would have US$20,000 per annum with "many other benefits." He said. that he had done more than simply comply with the terms of the separation agreement. He estimated that she had taken over almost two-thirds of the total family assets. He was also paying US$11,000 for their son's education. He felt that his wife simply wanted personal revenge; she had told him that she had been advised. that she would get sole custody of the child in Hong Kong and that he would have to pay all the legal costs of the divorce. His statement concludes thus:

32. The husband's affidavit goes on to say that a few days after he had seen Mr. Lintern-Smith, a telephone conversation between them had left him assured that everything to contest the divorce would be done when necessary. In other conversations with Mr. Lintern-Smith he had been told that there was no danger of anything going ahead in Hong Kong without notice so that there would be ample time for counter-measures. From what he said,Mr. Lintern-Smith had seemed convinced that Miss Longmore would simply let the action rest and he confirmed this in his letter to him dated 30th March 1990 (annexed).

33. The husband said that when on, 12th April 1990, in the New York Court Justice Ellison had ruled that "New York has a substantial nexus" with his action and no jurisdiction had a more compelling connection, he was in China but when he heard the news he returned to Hong Kong and on about the 17th April he telephoned Mr. Lintern-Smith and said "isn't time we put the Hong Kong proceedings to rest?" by applying for a stay. (He had been told of this procedure by Mr. Lintern-Smith.) He replied "She [Elaine Longmore] is not doing anything in this case. I Know her very well. She is doing nothing at all at the moment. We shall only stir things up." Mr. Lintern-Smith congratulated him on the result in New York and said "everything seems to be going your way". As a result he had not applied for a stay.

34. The husband then states that on about 1st May 1990 Mr. Lintern-Smith had telephoned him with the "bad news" that he had been told by Miss Longmore that his wife had been granted a decree nisi on the 27th April. Until that time and as a result of Mr. Lintern-Smith's advice he had not the remotest idea that he would have to appear' in Court in Hong Kong. Mr. Lintern-Smith told him that he, too, was shocked and appalled.

35. The husband said that he strongly denied his wife's allegations set out in the petition. He had since been advised that it was not necessary to file a detailed answer to the petition; that it would have been sufficient to file an answer merely denying the charges made against him or to have sought an order for particulars before pleading to it. In any event Mr. Lintern-Smith had failed to do anything.

36. We now review rather more fully the New York proceedings. We have previously mentioned the separation agreement dated 12th August 1988 entered into between the husband and the wife. This was drawn up and executed in New York State, both parties being advised by lawyers, and makes elaborate and detailed arrangements to "fairly and fully settle their matrimonial, family, financial and property rights and obligations." The agreement also deals with the custody of the child of the family and his maintenance. One clause says: "Each party understands that they are not obliged to sign this Agreement." And later: "The parties represent to each other that each has had the opportunity to be advised by an independent attorney." The agreement was executed before a Notary Public.

37. It was sometime in August/September 1989 (the date does not appear) that the husband instituted proceedings for divorce in the Supreme Court of New York, Tompkins County. His cause of action was based on the separation agreement. As we understand it, under the law of New York, what is called a "conversion" divorce will be granted where there is a separation agreement, the parties have lived apart for a period of one year and the plaintiff has substantially complied with the terms of the separation agreement. These proceedings were thus instituted in the USA about 4 1/2 months before the wife filed her petition in Hong Kong.

38. The husband/plaintiff moved for summary judgment. The wife/defendant "cross-moved" for an order granting her summary judgment dismissing her husband's complaint on the grounds that her husband had not been a resident of New York State for a continuous period of not less than 2 years immediately preceding the commencement of the action, or alternatively that the action should be heard in Hong Kong. She claimed that the separation agreement was obtained by fraud and/or duress and that it had been breached by her husband.

39. The New York Court (Justice Ellison) held, in a judgment dated 12th April 1990, that the husband was and had been a domiciliary of the State of New York and had fulfilled the residency requirements of the law. On the wife's cross-motion, the judge, inter alia, said: "New York has a 'substantial nexus' with this action, and no jurisdiction has a more compelling jurisdiction. In balancing the competing factors, the Court finds that defendant has failed to demonstrate that New York is an inappropriate forum ...." The judge granted the wife until 15th May to file further affidavit evidence and a memorandum of law regarding the issues arising out of her allegations concerning the separation agreement.

40. We will interpolate here what the wife said about the separation agreement in her Hong Kong petition. She averred that at the end of May 1988, her husband had told her that he wanted her to sign a separation agreement; if she did not sign, he would move out of the matrimonial home. She refused. In June 1988, her husband moved out but he frequently telephoned her, often late at night, using obscene and abusive language and put pressure on her to sign the agreement. He also returned occasionally to the home, and on each occasion was bad tempered, violent and abusive. Her husband's actions terrified and frightened her.

41. She went on to say that although she wanted to save the marriage, she began to realise that there was now little hope. Her husband continued to pressurise her and she finally agreed to move to the United States, with the child, arriving there early August 1988. However, after only one month, she decided she would return to Hong Kong. Her husband was furious and accused her of wasting his money, saying that she simply wanted revenge. He also assaulted her following a furious and bitter argument, and told her that she must first sign the agreement before returning to Hong Kong. And so, worn out, mentally exhausted and under severe pressure, she had finally and reluctantly agreed to sign the agreement.

42. The wife added that a few days before she was to sign the agreement her husband's lawyer had given her a list of female lawyers and she was told to select one to represent her. She had a brief consultation with the lawyer she selected for about 20 minutes. She was advised that the agreement was "very fair" on the face of it., However, on the following day her husband had told her that his lawyer had advised him not to sign the agreement as it was "too generous". After further discussion between the lawyers she was again told to sign the agreement, failing which her husband would divorce her and she would receive a much less favourable settlement from the Court. "Accordingly, under considerable stress, tension, pressure and duress, the petitioner signed the agreement."

43. The New York proceedings were later resumed before Justice Ellison. By his judgment dated 7th June 1990 (which was not, of course, before Judge Chism when the matter was before him) he held that the separation agreement was neither unfair nor unconscionable. Under it, the fudge noted, the wife retained and controlled property valued at about US$l37,442 as against the value of the property retained by the husband (US$84,222). Moreover the wife was entitled to a pro rata share of her husband's pension for certain years. She was receiving "spousal support" of US$20,000 per annum, plus child support. The husband was obliged to pay the costs of educating their son (university education, tuition, board and related expenses). The judge noted that the wife had accepted these benefits under the agreement without complaint.

44. The judge was not satisfied that misrepresentation or duress had been established. He drew particular attention to one of the drafts of the agreement (the June draft) which showed numerous additions and changes in the wife's own hand writing, concerning substantial issues and assets of the marriage. The husband's motion for summary judgment was granted.

45. The formal judgment of divorce made by Justice Ellison is dated 18th June 1990. After the recitals it is ordered and decreed that both parties are "absolutely divorced" and the importance of the separation agreement is shown by what the formal judgment says about it:

46. The wife filed a Notice of Intention to Appeal in the New York proceedings on 16th July 1990 but has made no application for a stay of Justice Ellison's judgment. The rules gave her 60 days thereafter within which to "perfect" her appeal by filing all the required documents with the Appellate Division of the Supreme Court Third Division, in Albany. No extension of time has been applied for.

47. We mention here that we considered that the interests of justice demanded that we accede to the husband's application to admit "fresh evidence" so that we could be informed about developments in the New York proceedings, without objection from Mr. Mok.

48. It is clear that in exercising his discretion under rule 55 of the Rules, the judge was influenced by his finding: "The Court does not accept that Notice of Hearing was not received by the Respondent." With very great respect, we do not know how the judge felt able to reach this conclusion in the light of the contents of paragraph 6 of the affidavit sworn by Mr. Lintern-Smith on 2nd May 1990. This solicitor and officer of the Court was not cross-examined on what he had deposed to on oath.

49. It will be recalled that in reaching his decision the learned judge observed that the husband would not be prejudiced in any way in presenting his case in Hong Kong in relation to custody and ancillary relief and no real benefit would accrue to him if he were allowed to defend the proceedings (since it was clear that the marriage had broken down irretrievably). It is not necessary to summarise all the complaints made by the wife against the husband in her petition, except to say that she accused him, inter alia, of being domineering, chauvinistic, racially prejudiced, selfish, unsympathetic, unloving, constantly critical, sometimes violent and furious etc. and then there are the allegations about pressurising her to sign the separation agreement which have been mentioned above. These are serious allegations and extremely wounding if unjustified.

50. It may be that the learned judge overlooked the provisions of section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192 which places a duty on a Court, when deciding whether to exercise its powers under sections 4 or 6 of the Ordinance (financial provision or transfer of property orders) "to have regard to the conduct of the parties and all the circumstances of the case including the following matters ......."

51. We do not find it necessary to discuss the authorities upon the difficult question of the extent to which conduct should influence the Court in deciding ancillary relief. We note that the legislature here has perhaps elevated the importance of the conduct consideration when compared with the corresponding provision in England (section 2(2)(g) of the Domestic Proceedings and Magistrates' Courts Act, 1978). There, conduct is to be taken into account only "if that conduct is such as it would be in the opinion of the Court inequitable to disregard it." If the decree nisi granted by the judge stands, in the present circumstances the husband would not be able to challenge the implicit findings upon which the marriage has been found irretrievably to have broken down, when the financial relief is being adjudicated upon. It might well be suggested that the alleged misconduct, unchallenged, is almost of a gross and obvious character. Moreover, the conduct of a father could be relevant when deciding what custody order to make in the best interests of his son. This was not a case where the practice mentioned in note 10, page 910 of Rayden and Jackson on Divorce, Vol.1 (15th Edition) was adopted:

52. We do not wish to be understood by anything that we have said to have concluded that the husband was badly advised, or that his affairs were negligently handled, by his former solicitors for we find it unnecessary to go into such questions. It is perfectly clear from the evidence that the husband always wished to defend the Hong Kong petition for a number of reasons, if it became necessary to do so.

53. We were of the opinion that on either of the grounds we have mentioned, the exercise by the learned judge of his discretion was vitiated and resulted in a miscarriage of justice.

54. We also note that in paragraph 6 of the wife's petition she averred that "[the New York proceedings] are defended by the petitioner on the grounds of want of jurisdiction." This was a correct statement when the petition was filed (12th January 1990) but it was hardly a "full and frank" account of the position when the judge heard the undefended petition on 27th April 1990 in the light of Justice Ellison's decision of 12th April on the jurisdiction and forum non-conveniens issues. Judge Chism should have been fully apprised of this development on 27th April and should, we think, have taken this lack of candour into account when exercising his discretion under rule 55 of the Rules.

55. We exercised our own discretion and, having regard to all the material before us, concluded that the application for a re-hearing should have succeeded so that the husband could be afforded the opportunity of defending the petition (the public interest was also involved). It was for these reasons that we allowed the appeal. On announcing our decision, the parties very sensibly came to terms about the final outcome of these proceedings.