LQ formerly known as LQ v. SF

FCMC 3640 /2024

[2025] HKFC 123

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3640 OF 2024

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Master’s Appeal
Crossley Application and Filing of Form E

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1.  In this divorce proceeding, I shall refer to the petitioner wife as “W” and the respondent husband as “H”.

2.  This is H’s appeal against a Master’s order made on 10 March 2025 enjoining him to file and serve his Form E (“the Form E Order”). Briefly put, H’s case is that since he has an ongoing application for W to show cause why she should not be bound by a nuptial agreement, being a Separation Agreement, entered into between the parties on 23 June 2023, it was wrong for the Master to have made the Order at this stage. Application of this kind is now customary referred to as “Crossley Application”. I shall adopt this terminology. The Separation Agreement was written in Simplified Chinese and entitled “离婚提案要点”. I shall refer to this Chinese Separation Agreement as “CSA”,

Factual Background

3.  For the purpose of this appeal, I only need to outline the factual background to the dispute.

4.  H and W were married in the Mainland in January 2002. They have a son (now aged 19) and 2 daughters (aged 14 and 12 respectively).

5.  On 12 April 2024, W took out a Petition for divorce on the ground of one-year separation, with the consent of H. She pleaded that the parties had separated from each other since February 2023. The main suit went uneventfully; a decree nisi was duly granted on 17 October 2024. Hence, it was a marriage of about 18 years.

6.  On 21 November 2024, H took out the Crossley Application. He seeks:

(1)  a hearing be fixed and directions be given for the W to show cause why she should not be bound by the terms of the CSA; and

(2)  such other directions as the court may think fit and appropriate, including orders and/or directions to dispense with or limit the scope of H’s financial disclosure.

7.  The 1^st call-over hearing came before the Master on 6 February 2025 who adjourned it for a 2^nd call-over hearing to be heard by HH Judge Kwan on 9 July 2025. At the same time, the Master gave directions on the exchange of affidavits/affirmations. By the time of the appeal before me, H was yet to file and serve his affirmation in reply. I understand the 2^nd callover hearing before Judge Kwan has since been vacated pending this Judgment.

8.  On 10 March 2025, the parties appeared before the same Master for First Appointment. By then, W had already filed her Form E (with supporting documents) on 6 March 2025. W was represented by Mr Eugene Yim of counsel who sought a direction from the court that H should file and serve his Form E pursuant to the First Appointment procedure (“the First Appointment Procedure”) laid down in Practice Direction 15.11 (Financial Dispute Resolution Pilot Scheme) (“PD 15.11”). H, represented by Ms Bonnie Cheng of counsel, resisted the filing of Form E on the ground that since there was already H’s Crossley Application, the First Appointment Procedure was inapplicable. After hearing submissions from both sides, the Master made the Form E Order.

9.  On 24 March 2025, H lodged his Notice of Appeal seeking the reversal of the Form E Order and have it replaced by an order that H shall file and serve his Form E without supporting documents, and not to be followed by any questionnaire from W (“the Limited Form E”).

10.  Subsequently, with the consent of W, the Form E Order, in insofar as it required the filing of annexes and supporting documents, has been stayed pending the final determination of this appeal. Instead, also with the consent of W, H had to file the Limited Form E, which was duly performed on 22 May 2025.

Master’s Appeal

11.  Master’s appeal before a Judge is by way of actual re-hearing, and the Judge treats the matter as though it came before him for the first time: Order 58, rule 1, RHC. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion. The judge, however, is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself; by so doing the judge does not fail to exercise the discretion confederated on him: see Hong Kong Civil Procedure (2025), at para 58/1/2.

The Crossley Application

12.  Mr Yim argues that there is no room for Crossley Application in Hong Kong. He submits that Rule 6 of the Matrimonial Causes Rules (Cap 179A) (“MCR”) that H relies upon cannot be found as the basis of Crossley Application.

13.  For the purpose of this appeal, I only need to set out Rule 6(5) & (7) of the MCR:

(5) At the time of the filing of an originating application or notice of application or the issue of a summons under this rule, there shall be filed an affidavit by the applicant or applicants setting out particulars of the agreement or arrangement in question and the grounds on which the application is made, and every copy of the originating application, notice or summons served on a respondent shall be accompanied by a copy of the affidavit.

(6) ……

(7) On the hearing of an application under this rule the judge may express an opinion, should he think it desirable to do so, as to the reasonableness of the agreement or arrangement and may give such directions, if any, in the matter if he thinks fit. (emphasis added).

14.  The wording of this sub-rule is clear: the judge may express an opinion, should he think it desirable to do so. Nowhere does the provision provides for a party to “show cause”. Unlike, for examples, Orders 49 or 50 of the Rules of the High Court/District Court that provide for a “show cause” mechanism in garnishee proceedings or for obtaining charging orders, Rule 6 does not compel any party to “show cause” in respect of a nuptial agreement. The focus of Rule 6 is on the reasonableness of the agreement or the arrangement, as can be seen in the requirement under sub-rule (5) that the supporting affidavit must set out particulars of the agreement or arrangement in question and the grounds on which the application is made.

15.  Further, sub-rule (5) provides that such an application may be made by “applicants”, indicating this could be an application by both the petitioner and the respondent.

16.  Rule 6 was made pursuant to section 18B(c) of the Matrimonial Causes Ordinance (Cap 179)for the purpose of -

“enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks”. (emphasis added)

17.  Section 18B(c) is based on a similar provision found in section 7 of the English Matrimonial Causes Act 1973 (“MCA 1973”). Notwithstanding the existence of section 7 for decades, no rules have ever been made under the Family Proceedings Rules 1991 (“FPR 1991”) or the current Family Procedure Rules 2010 (“FPR 2010”).

18.  Returning to Hong Kong, in 2012, in the Interim Report and Consultative Paper on the Review of Family Procedure Rules, the Chief Justice’s Working Party on Family Procedure Rules recommended that Rule 6 should not be included in the new Family Procedure Rules for Hong Kong. The recommendation was accepted. Paragraphs 81 to 83 of the Final Report said,

81. As pointed out in the Interim Report, Rule 6 of the MCR was introduced at a time when there was a stigma attached to divorce and parties would want to have an agreement reached before agreeing to a divorce. The rule has rarely been invoked and so it is not necessary to include a corresponding provision in the New Code.

82. As Rule 6 of the MCR was enacted at a time before all these new developments, we consider that the old rule may not be appropriate to be applied in the new circumstance. In any event, a new tailor-made procedural rule may be introduced in the future to cater for the specific need of any new statutory code on marital agreements, Further, question about the effect of such kind of agreements can always be determined in the substantive divorce proceedings, and we have reservation as to necessity of providing a separate procedure for the determination of the effect of such kind of agreements.

83. For the above reasons, we make the recommendation that the New Code should not include any specific provision to enable the parties to a marriage to seek the court’s opinion on an agreement or proposed arrangements before or after the presentation of a petition, except in the context of a FDR or CDR hearing.

19.  As we all know, for the implementation of the recommendations, the Family Procedure Ordinance (Cap 646) has been enacted in 2023 and the Family Procedure Rules are now being drafted.

20.  Therefore, it is clear that Rule 6 does not provide an application for H to ask W to “show cause”. On that view, H’s summons is technically defective; his supporting affirmation does not contain the matters required under sub-rule (5), too: see [52] to [53] below .

21.  Indeed, HH Judge Own has come to the same conclusion in CKP v SYK [2021] HKFC 14, FCMC 2441/2017 where he held Rule 6 does not provide any “show cause” regime.

22.  I now turn to what Crossley Application is. By its name, such application finds it origin in an English Court of Appeal case Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467 when FPR 1991 were in force and not replaced by FPR 2010 yet.

23.  The couple in Crossley v Crossley met when the husband was about 60, and the wife about 48; both had been previously married and divorced. They became engaged a few months later. Each was independently wealthy; the husband was worth about £45m and the wife about £18m. Following negotiations involving experienced lawyers, the couple signed a prenuptial contract, agreeing that in the event of a divorce, neither would be entitled to any financial assistance from the other. Just over a year after getting married the couple separated; within 2 years of the marriage the wife petitioned for divorce. There were no children. The wife resiled from the agreement and sought financial relief from the husband. The husband applied for the wife to show cause why their pre-nuptial agreement should not be binding on her.

24.   When the husband’s summons came before Bennet J, the judge characterized the nuptial agreement in that case could be a “knockout blow”: see [5]. He directed that Form Es be completed without documents or questionnaires, and that the first appointment under the automatic timetable be adjourned to a hearing to address the question why the pre-nuptial agreement should not prevail. Furthermore, in view of the wife’s allegation that there had been non-disclosure on the part of the husband, the wife's solicitors were directed to set out in a detailed letter the wife's case on non-disclosure, to be answered by the husband in his Form E.

25.  Thorpe LJ dismissed the wife’s appeal and confirmed Bennett J’s limited Form E order.

26.  As said above, no rules under section 7 of the MCA 1973 had ever been made. The rules that Bennett J relied upon were the case management power contained in rule 2.51D of the FPR 1991 to disapply the First Appointment procedure as stipulated under rule 2.61B, FPR 1991.

27.  The English First Appointment procedure is very much similar to our First Appointment procedure as set out in PD 15.11, specifically the filing and exchange of Form Es and Questionnaires.

28.  Hong Kong’s equivalents of rule 2.51D of the FPR 1991 (ie case management powers) are Orders 1A and 1B of Rules of the High Court which are applicable to the present matrimonial proceedings pursuant to Rule 3 of the MCR.

29.  By Order 1A, rule 4, courts are enjoined to actively manage cases to further the Underlying Objectives under Order 1A. To achieve this end, courts are given extensive case management powers under Order 1B, but it should be noted that there is no express provision in Orders 1A or 1B allowing a party to ask the other party to show cause.

30.  Hence, in my view, the so-called “Crossley Application” is simply an application to invite the court to give appropriate case management directions as to how an ancillary relief claim is to be dealt with when there is nuptial agreement and one party seeks to resile from it. In this regard, it is trite to say that each case is fact-specific. As such, what case management directions are to be given depend on the particular facts of each case and it is a matter of discretion to be exercised by the court; needless to say, this may, in an appropriate case, include a direction for the other to “show cause”.

31.  It appears since L v F (Crossley Application, Preliminary Issue) [2023] HKFC 108, [2023] 5 HKC 83 there is a tendency on the part of practitioners to take out an application to show cause once the other side evinces an intention to resile from a nuptial agreement, regardless of the factual matrix of their case and the issues in dispute. Indeed, Judge Kwan said in her judgment that it should not be taken that Crossley Application should invariably be heard as preliminary issues: see [72]. I agree.

32.  In affirming Bennett J’s decision, Thorpe LJ highlighted the particular facts of that case - where it was a childless marriage of very short duration, and for a substantial portion of which the parties were living apart. The marriage was between mature adults, both of whom had been previously married and divorced; both parties had and had had prior to the marriage very substantial independent wealth. The prenuptial agreement provided for the retention by each of the parties of their separate properties and division of joint property, if any, and finally that there was no such joint property. The combination of these factors gave rise to a very strong case that a possible result of the section 25 exercise (our equivalent is section 7, Matrimonial Proceedings and Property Ordinance (Cap 192) exercise (“Section 7 Exercise”) will be that the wife receives no further financial award: see [14].

33.  In endorsing Bennett J’s decision, Thorpe LJ, at [15], described that case as exceptional. He said,

[15]  All these cases are fact dependent and this is a quite exceptional case on its facts, but if ever there is to be a paradigm case in which the court will look to the prenuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case…

34.  Furthermore, Thorpe LJ classified the nature of prenuptial agreement in that case as akin to a marital property regime in the civil law jurisdiction: see [17].

35.  S v S (Ancillary Relief) [2008] EWHC 2038 (Fam), [2009] 1 FLR 254 is a case where there had been a round table meeting between a husband and wife who had been married for over 20 years to agree the split of assets following their divorce on 55/45 basis (this was the wife’s stance before and throughout the proceedings), and it was clear that the parties had relied on what had been agreed and had the agreement largely implemented. Eleanor King J (as she then was) unhesitatingly concluded that this case was one of that category of cases identified by Thorpe LJ in Crossley v Crossley where there is a factor of such magnetic importance that it must necessarily dominate the discretionary process. She accordingly directed that the notice to show cause is to be determined: see [88].

36.  The above cases demonstrate that it was against the factual matrix of each case that made the nuptial agreement the “magnetic factor” that dominates the discretionary process of Section 7 Exercise.

37.  It is well established that in matrimonial cases where finances are involved, it is always the statutory duty of the court that it shall look into those factors under section 7 of MPPO. The “show cause” procedure does not replace the Section 7 Exercise; see L v F (Crossley Application, Preliminary Issue) [2023] HKFC 108, [2023] 5 HKC 83, at [61] – [63]. In other words, even where the “show cause” procedure is allowed, the court must still conduct the Section 7 Exercise by reference to all the statutory criteria. This was also the case in Crossley v Crossley and S v S: see Crossley v Crossley at [15] and S v S at [88] & [89].

38.  In FHM v KYM & Ors, FCMC 13457/2013 (unreported, 9 April 2015), HH Judge Grace Chan said even if a nuptial agreement is found valid, it could not oust the jurisdiction and power of the court under section 7, MPPO. Even if a nuptial agreement satisfies the legal principles in relation to a nuptial agreement set out in SPH v SA (2014) HKCFAR 364, [2014] 3 HKLRD 497, an ancillary relief trial is still unavoidable, if a Financial Dispute Resolution was unsuccessful. In that case, the judge held, from a case management angle, costs and time could not be saved by holding a trial on preliminary issue concerning the Deed of Separation. In other words, as I read it, the nuptial agreement in that case did not dominate the discretionary exercise. See also CKK v WMY, FCMC 1089/2007 (unreported, 23 December 2014).

39.  There is no prescribed set of procedure to apply when there is a nuptial agreement; it all depends on the facts of a case. In this regard, Theis J made the following remarks in FN v AC [2019] EWHC 3806 (Fam) at [22],

22 Fourthly, as has been repeated in a number of applications, namely, Thorpe LJ in Crossley and Eleanor King J in S v S, and most recently by Baroness Hale in Radmacher, it is quite clear these cases are fact specific. There is no inflexible rule as to how the proceedings should be conducted. I reject the suggestion by Mr Chandler that the factual situation, whether pre or post-nuptial cases, mean that they should be dealt with in a different way. As Mr Burles points out, the notice to show cause procedure has no specific procedural structure in the rules, or anywhere else. It is a creative and helpful procedure in appropriate cases, dependent on the particular facts. In the case management process applications are considered with a wide discretion, as set out under Part 4 of the Family Procedure Rules 2010 , in particular the discretion set out in Rule 4.1. To suggest, as Mr Chandler submits, that by issuing such an application creates some kind of entitlement that the application will be heard unless doing so would serve no purpose is not supported by authority. Previous cases have repeatedly observed over the years that these applications are fact specific, there is a need to have the flexibility, and, adopting the words of Baroness Hale, "there can be no inflexible rule" in this situation.

40.  In my view, when being faced with a nuptial agreement, in order to properly manage a case to give effect to the Underlying Objectives, before making a “show cause” application, parties must be astute in giving careful consideration on if the specific facts of the case may make the nuptial agreement a magnetic factor. Further, if a nuptial agreement is proposed to be tried as a preliminary issue rather than have it rolled up in the ancillary relief trial, Order 33, rules 3 and 4(2), RHC are engaged and parties should give proper regard to the principles upon which a split trial may be ordered. One has to bear in mind a preliminary issue trial could be very expensive and time-consuming. It is not good enough if just some costs and time could be saved or if it would make parties come to a settlement easier for the reason that every case management step should be conducive to these ends.

41.  Therefore, for the reasons I have said above, I do not agree that there is no room for Crossley Application in Hong Kong, although such application should not be lightly invoked.

Parties’ Grounds

42.  Before I turn to the parties’ more substantive grounds, there a minor ground advanced by Mr Man SC, appearing for H, that can be disposed of quickly. Mr Man argues that PD 15.11, at para 1, expressly provides that in “cases where the parties have reached agreement on ancillary relief… this Practice Direction shall not apply.” By the reason that there was already the CSA signed by the parties, the First Appointment procedure does not apply.

43.  It is unnecessary to dwell into the semantics of what “reached agreement” means. For all practical purposes, there is clearly no agreement between the parties, otherwise there was no need for H to have taken out the Crossley Application.

44.  Mr Man puts forward two substantive grounds.

45.  Mr Man submits the Form E Order is wrong in principle and practice. The Form E Order defies the express terms and purpose of the CSA, it runs against the law on the “magnetic importance” of a settlement agreement and defeats the whole point of the Crossley Application procedure. This is his first ground.

46.  By the time of the appeal, W had filed her affirmation in opposition. In response, Mr Yim submits that, as affirmed by W, the CSA was signed under grossly unfair circumstances in which there was no financial disclosure from H prior to its signing.

47.  Mr. Man’s second ground is that the Form E Order made by the Master amounts to an outright dismissal of paragraph 2 of H’s Crossley Application before Judge Kwan even has an opportunity to hear it. That cannot be right. It would pre-empt Judge Kwan’s consideration of the Crossley Application.

48.  On the other hand, Mr Yim argues that in light of the grounds raised by W as to the unfairness of the CSA, the Crossley Application could not be properly determined by Judge Kwan without a full Form E being filed by H. It is also pointed out by him that there is no truncated Form E provided in PD 15.11.

Discussion

First Ground – the Form E Order is Wrong in Principle and Practice

49.  H’s supporting affirmation dated 20 November 2024 emphasized how the CSA was negotiated, processed and signed. H said both parties were determined to arrive at a mutually agreeable settlement without initiating legal proceedings, and both parties continued discussions on settlement both directly and through H’s solicitor.

50.  H said W had made an appointment with her solicitor to review the final CSA before attending the office of H’s solicitors for signing. As such, W had sought independent legal advice. However, it is significant to note that Recital (2) of the CSA mentioned Freda Lim & Co had drafted the CSA for H’s as his solicitors only, there was no mention whatsoever of any of W’s solicitor. On the face of the CSA, W was not legally represented.

51.  H also affirmed that he had duly performed various obligations under the CSA.

52.  At the hearing, Mr Man focuses on the terms of the CSA. H emphasizes that under Recital (4) of the CSA, the parties mutually acknowledged having sufficient information about the other’s financial status and would not seek further financial disclosure from the other party whether by way of Form E or other means. Further, the CSA provides that it is for full and final settlement of the financial matters between the parties.

53.  However, I note from H’s supporting affirmation that even after the CSA had been signed there were negotiations between the parties in around April and May 2024 on the modifications of some of its terms. H explained it was initiated by W. He was willing to consider any reasonable request(s) for the sake of maintaining harmony, saving costs and settling the matter once and for all. In about July and August 2024, at the request of W’s solicitors, H, through his solicitors, even provided further documents, including the Trust Deed referred to in Clause 2 of the CSA, the relating Deed of Appointment and Restatement to the Trust Deed, the structure chart and a summary of all the major assets of the Trust. I do not know how significant this Trust is in terms of its value or in the context of W’s ancillary relief claims. Seemingly it cannot be disputed that these documents had not been disclosed prior to the signing of the CSA. This somewhat supports W’s assertion that the signing of the CSA was a pre-condition for financial disclosure.

54.  It is also significant to note that the final draft Consent Summons prepared by H’s solicitors itself deviated from the CSA by incorporating modifications requested by W. H explained he did it without prejudice his rights under the CSA.

55.  At the hearing, Mr Man maintains that all the terms of the CSA are to be made orders of the court. However, it is doubtful if this could be the case. The obligations under the CSA were termed by way of some general financial undertakings mainly to be performed by H without the details and timeframe being set out. Some of these undertakings simply could not be made an order of the court nor would they be accepted by the court. By way of examples, clause 1(a) provides the H would not be marrying with a lady “L”; and clause 1(b) provides that neither party could refuse to divorce on the basis of one year separation.

56.  Mr Man acknowledges this case is a big money case. However, the CSA contains 2 ½ pages only, and it was signed by H and W alone, without the same being attested by their respective solicitors (if any). It is therefore no surprise that the CSA is entitled “Main Points on the Proposal for Divorce” (“离婚提案要点”).

57.  All these have to be considered in light of W’s case as ventilated in her affirmation in opposition. Mr Yim submits that, as affirmed by W, the CSA was signed under grossly unfair circumstances in which there was no financial disclosure from H and hence, W never had a full picture of H’s assets and financial arrangements. W was induced by H’s solicitor to compromise during the negotiations saying that W’s agreement would be the precondition for H to provide financial disclosure. Although W had presented the draft CSA to her solicitor hoping to receive advice, her solicitor was unable to do so when H had refused to provide any financial disclosure. At the end, W had no choice but to sign it.

58.  Mr Man argues that once an agreement has been properly and fairly arrived at with competent legal advice, the Court will not permit either party to renege unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement: Jackson’s Matrimonial Finance (10^th ed., 2019) at [12.68].

59.  Mr Man further argues the mere fact that one party might achieve a better result by going to Court is not of itself generally a ground for permitting that party to resile from what was agreed: Rayden & Jackson on Relationship Breakdown, Finances and Children (19^th ed., Issue 27) at [12.186].

60.  Relying on what Stock JA (as he then was) said in L v C [2007] 3 HKLRD 819 at [42], Mr Man submits that a settlement agreement should be treated on the basis that it is “presumptively dispositive”, the burden being on the party seeking to achieve a different disposition to show good and substantial cause.

61.  Mr Man also relies on the English Supreme Court case in Grantino v Radmacher (formely Granatino) [2011] 1 AC 534 where it was held, inter alia, that agreements providing for the future separation of the parties to a marriage was contrary to public policy was obsolete and that, in appropriate circumstances, the court could hold the parties to the agreement even when the result would be different from that which the court would otherwise have ordered.

62.  I acknowledge these are well established principles; as a matter of fact, I am bound by the Court of Appeal decision in L v C. However, it should be noted that none of these cases were on Crossley Application. Both L v C and Grantino v Radmacher (formely Granatino) were on ancillary relief claims where the court had to consider the factors under section 7 of the MPPO (or section 25 of the MCA 1973) in the exercise of its discretion. It is clear from the judgment in L v C that there were financial disclosures by both parties for the ancillary relief trial.

63.  It is apparent that Mr Man relies upon the CSA itself as a magnetic factor. I have endeavoured to emphasize that whether a nuptial agreement is of “magnetic importance” must depend on the facts of the case. It is not in every case that a nuptial agreement could be a magnetic factor in the Section 7 Exercise. In this regard, my attention has not been drawn to how the specific facts of this case warrants a Crossley procedure. I am conscious that when this appeal was heard, H was yet to file his affirmation in reply on the Crossley Application. I remind myself that I am not the one to decide if there should be a “show cause” procedure, and if the answer is yes, how this is to be conducted. This has to be determined by Judge Kwan. All I can say is it is yet to be seen if this case is one where the Crossley procedure should be adopted.

Second Ground: Form E Order amounts to an outright dismissal of paragraph 2 of H’s Crossley Application

64.  PD 15.11 stipulates the steps that parties are required to comply with prior to First Appointment, notably the filing and exchange of their Form Es: see para 3, PD 15.11. The filing and exchange of Form Es, together with other steps prescribed under the Practice Direction, are to assist the court in making appropriate case management directions. In the present case, the failure on the part of H to have filed and served his Form E before the First Appointment was already a breach of the Practice Direction. Mr Man submits there was already a Crossley Application and one of the orders H sought was for the court to make such directions or orders as appropriate to dispense with or limit the scope of H’s financial disclosure. While the First Appointment procedure is not a straitjacket, I do not think the First Appointment procedure could be put to a “halt” lightly simply by such an application for directions. The First Appointment procedure must be followed unless there are good reasons justifying its departure and allowed by the court.

65.  I agree with Mr Yim that a Form E Order is a matter of case management on which the court has a wide discretion.

66.  It is to be remembered that the Master who made the Form E Order was the same Master who heard the 1^st call-over hearing of H’s Crossley Application earlier on 6 February 2025. When the case came before him on 10 March 2025 for First Appointment, he had the benefit of H’s supporting Affirmation for the Crossley Application, it was under this circumstance that he made Form E Order.

67.  It should not be forgotten that the Master, whether he was case managing the Crossley Application or the First Appointment, was no different from a Judge in terms of his duties and powers. In appropriate case, he may defer making a decision to the judge but it does not mean he may abdicate his duties.

68.  By the time of this appeal, apart from H’s supporting affirmation, I also have W’s affirmation in opposition before me. Taking the two affirmations together, it is clear there is a dispute on the circumstances under which the CSA was signed and apparently, there had not been financial disclosure by the parties prior to its signing.

69.  I am now in the shoes of the Master. I consider that I should, on the one hand, give due regard to the procedure laid down in PD 15.11, and on the other, I have to give due consideration to what Judge Kwan would need to have before her so that she may properly case manage the Crossley Application and to decide if a “show cause” procedure is to take place. This, I emphasize, is entirely within the judge’s domain.

70.  As referred to above, Mr Man acknowledges that this is a big money case. He also acknowledges that the marriage was 18 years long with 3 children, and that the enormous wealth of the family was accumulated within the duration of the marriage; however, Mr Man has not been able to inform the court on the ratio of division of assets as between H and W provided in the CSA. I consider these are material factors.

71.  Mr Man reminds me that H’s proposal to limit his disclosure to a limited Form E was taken from Crossley v Crossley itself where it was so ordered at the first instance by Bennett J and upheld by the English Court of Appeal. However, one should not lose sight of the fact that the limited Form E was not the only direction the judge had made. The other direction he made was to direct the wife’s solicitors in that case to set out in a detailed letter the wife’s case on non-disclosure of the husband’s financial situation, to be answered by the husband in his Form E. That was made in light of the particular circumstances of that case and was a “creative” procedure, to employed the term used by Theis J in FN v AC, see [39] above.

72.  The present case is one where W alleges, and supported by some evidence that, there was simply no financial disclosure. At the very least, that was the situation when the case came before me. Considering all the factors in the round, in particular, as of now, it has not been shown how, given the circumstances of this case, the CSA is of “magnetic importance”, I consider the Judge would need to have a good understanding of the size and nature of the family assets and how they are currently being held in order to make an informed decision on the Crossley Application. I conclude that H should comply with the Form E Order. I would allow 21 days for H to file and serve the Form E, with supporting documents.

Costs

73.  H fails in his appeal. There is no reason why costs should not follow the event. I order that H do pay W’s costs of this appeal, to be summarily assessed. I make the following directions:

(1)  W is to lodge and serve a Statement of Costs (in the format in Appendix A of PD 14.3) on or before 29 July 2025;

(2)  H is to lodge and serve his List of Objections on or before 12 August 2025; and

(3)  The summary assessment is to be dealt with by way of paper disposal.