NLT v. LYKJ

FCMC 8680/2012

[2019] HKFC 167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 8680 of 2012

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R U L I N G
(Leave to appeal)

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Introduction

1.  This is the Respondent husband’s application for leave to appeal against what was effectively a case management decision granting the wife leave to be released from her implied undertaking and permitting her to use or disclose information, documents and/or materials from the matrimonial proceedings in three High Court actions.

2.  The matrimonial proceedings have been ongoing for a considerable period of time and have included a trial on the suit and a trial on the children’s arrangements. There have also been issues with respect to interim financial support of the wife and two children of the family by the husband. The issue of final ancillary relief remains outstanding.

3.  On the 13 November 2017, the husband issued a summons asking for the ancillary relief proceedings to be stayed pending the outcome of three High Court actions. The proposed preliminary issues hearing was subsequently adjourned. The wife for her part sought to join a number of companies to the matrimonial proceedings and at first blush it seems that both the High Court actions and the joinder together with the proposed preliminary issues matter in the Family Court, are concerned with the same or similar assets. This court is also very alive to the possible strategic undertones to these applications.

4.  The husband’s application to stay the proceedings and the wife’s application for joinder were both adjourned pending the outcome of a summary judgment summons in the High Court on the 7 January 2019. I am told that the wife was given unconditional leave to defend all three actions. It is in those circumstances that the wife’s application for leave was filed. Originally the parties asked to set the matter down for a two-hour hearing and this was agreed to by consent. I took the view that this was not necessary. In particular, it is trite but worth reiterating in the circumstances that a party cannot allege one thing in one set of proceedings and another in a different set of proceedings. To that end it must be right that in order to prepare her defence fully the wife should be permitted, in the first instance to refer to the information, documents and/or other materials relied upon by the husband in the matrimonial proceedings, including any correspondence exchanged between solicitors.

The law

5.  The law is as set out in section 63A of the District Court Ordinance and this states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

6.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

7.  In the husband’s Draft Notice of Appeal, he says that the court failed to conduct a fair hearing and that that there was a possibility that there might be a misapplication or misunderstanding of the evidence. Neither point is accepted. The master had already directed that the wife could not refer to the matrimonial proceedings unless leave had first been obtained from this court. There is no requirement that a matter of this nature be set down for a two-hour hearing. It was a straight forward case management decision and it was dealt with accordingly. In making that decision I had had an opportunity to read the wife’s 21^st affirmation dated the 15 February 2019 and the husband’s 19^th affidavit in reply dated the 10 May 2019, both of which were on point. The husband had already indicated the discrepancies in his evidence and he will need to deal with these discrepancies again in the High Court proceedings, when the Judge will ultimately have the benefit of hearing oral evidence from both sides.

Decision

8.  In such circumstances it seems to me that there is no reasonable prospect of this case succeeding on appeal, nor is there any other reason, in the interests of justice why this appeal should be heard. Consequently, the husband’s application for leave to appeal is denied.

Costs

9.  The wife has asked that costs should follow the event in the normal way and that they should also be summarily assessed and paid forthwith. I agree. I will allow HK$37,500 and deem that that is the appropriate amount in the circumstances – such sum to be paid within the next 14 days.

Further directions  

10.  At the hearing on the 13 June 2019 it was agreed that I would give further directions on the husband’s application to stay and the wife’s application for joinder. On reflection I have decided to simply adjourn both matters for a further call over in the first instance. Thus both matters shall be adjourned to the 11 October 2019 at 9:30 a.m. Both parties shall personally attend that hearing. I will expect to be updated on the progress of the High Court actions at that hearing.