A v. B

FCMC 9824 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9824 OF 2015

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J U D G M E N T
(Discovery)

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Introduction

1.  This is a cross application for discovery. The wife seeks fairly significant further discovery from the husband on a “best endeavours” basis. The husband for his part says that he has disclosed all that he can subject to a couple of exceptions, which he is said to be working on. The husband also seeks limited further discovery from the wife, which has now been largely agreed.

2.  Given that this hearing was back in November I am proceeding on the premise that the parties may have now submitted further documents to each other, as indicated by them during the hearing. If not, and given the time lapse, I will now give both sides a fairly short time frame within which to comply. I have also taken the opportunity of reproducing the questions in issue, so that there is an easy point of reference going forward.   

Background

3.  In a short Ruling on education dated the 22 August 2016 I briefly set out the background to the party’s marriage as follows:

4. Both counsel have set out the background to this matter in their respective submissions. Mr Pilbrow S.C. for the mother says as follows:

(i)  Both the Petitioner’s and the Respondent’s families emigrated to Australia in 1984.  As a result, both parties received most of their secondary and the whole of their tertiary education in Australia.  The parties and C carry HKSAR and Australian passports.  Both parties returned to Hong Kong after graduation in 1992.  The parties met in 1996 and married in 1999.

(ii) C was born on XX August 2011 and will thus very shortly be 5 years old.  The Petitioner ceased employment in 2008 and so became C’s primary carer from birth.  The parties separated for 9 months or thereabouts in 2004 but reconciled.  From 2012 onwards, both parties, according to the Social Welfare Officer, accept that their marital relationship deteriorated.  In July 2014, the Respondent moved out of the matrimonial home and in July 2015, the petition herein was issued.

4.  It is the wife’s case that the husband comes from a very wealthy family and there has been references to significant sums of money which she says belong to him and his other siblings beneficially. The husband says that all such monies belong beneficially to his mother. There is also an issue concerning a trust. In addition, there are a number of bank accounts held in the wife’s name that she maintains are held by her for her father, who is the sole beneficial owner.

5.  There are three family companies on the husband’s side that are of particular interest to the wife namely D Limited, E limited and F Limited. It is accepted that the husband has never been a shareholder of any of these companies. However, he was until recently a Director of all three. Mr Todd for the wife sets out her position generally with respect to the husband’s financial position in his opening submission thus:  

12. The Respondent’s financial position

    Before turning to the detail of the questions it might be helpful to understand a little of the background here.  It is fully set out in W’s 7^th Affidavit of 3^rd August 2016.  This is found in Bundle A3 at p 993 to 1006.  We invite it to be read to give the proper context.  It sets out the background of H’s family and information about the family trust, namely The G Trust (“the Trust”).  It emphasises W’s belief that H is concealing his financial assets, particularly the funds from the sale of the shares in J Limited.  As stated in paragraph 16 (A3-997) the HK$400 million proceeds of sale (and 4.8% inter per annum) was distributed to the Respondent and his brother I as beneficiaries of the Trust in equal share by 5 equal instalments on 1 August 2007, 1 January 2008, 1 July 2008, 1 January 2009 and 1 July 2009 (“J Distribution”).

13. H would have been paid over HK$200 million from this distribution.  W believes he used the funds from the J Distribution to pay off the mortgage of the former matrimonial home (although with no apparent reason as he subsequently obtained another mortgage on the property).  He also seems to have purchased properties at Finnie Street and South Horizons without mortgage.  In his Supplemental Answers, the Respondent admitted that he received a sum of HK$9.6 million from his mother after the sale of the J Group shares but said that he did not receive any distribution from his family trust, The G Trust after the sale of the shares in or around 2008.  W does not believe that and suspects money has been “parked”.  She does not accept that H did not receive any distribution from the Trust and believes he received substantially more funds through the J Distribution which was handled by the various companies which were incorporated by the Respondent around 2007 to 2010.

14. Suspicion is yet further heightened by the timing of the Respondent’s removal as a beneficiary of The G Trust and recent removal as a direct of the family companies in May/June 2016.  No good reason has been given.  It was likely orchestrated so that the Respondent can claim that he has no interest and/or involvement in the Trust and/or the companies.  The Respondent also stated that he was removed as a director of K Limited on 29^th June 2016.  That was the company which received the distributions from the Trust before it was transferred to the Respondent’s HSBC account through F Limited.  These events all happened within a matter of weeks of the sagacious Jonathan Mok reminding H that as a director of these companies, he could and should give disclosure - see his letter of the 21 April 2016 (B1-2 and the reference to B v B [1979] 1 All ER 801.

15. At the time of the Respondent’s Form E (2^nd November 2015) the value of his shareholdings was said to be HK$21,826,517.  The reported dividend and interests from the stocks and bonds, HK$1.2 million per annum.  H also earns HK$321,000 per month.  His bonus is usually paid in August of every year.

6.  This description is of course disputed by the husband, but I accept that it is against this background that the wife poses her additional questions prior to FDR.

The law

7.  The law is straightforward and not in dispute.  Order 24 Rule 7 of the Rules of the High Court (“RHC”) is made applicable to Matrimonial Proceedings by Rule 3 of the Matrimonial Causes Rules (“MCR”).

Order 24 r 7(1) RHC states that:

Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

Further Order 24 r.8 RHC says:

On the hearing of an application for an order under rule 3, 7 or 7A the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

8.  The above rules enable the Family Court to order a party to the proceedings to make discovery of specific documents or a class of documents.

9.  In CWK v YCHS, FCMC 6082/2014 dated the 18 November 2015, Deputy Judge George Own, as he then was, helpfully summarized the current law as follows:

21. The settled principles governing specific discovery have been succinctly summarised by Hon Ng J in a recent decision of Jade’s Realm Ltd v. Director of Lands (HCA No. 1509/2012) dated 9 January 2015 as follows :-

“(1) “There is no jurisdiction to make an order for specific discovery under RHC O.24 r.7 unless there is sufficient evidence or prima facie case that: (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party;

(2) Once it is established that those three prerequisites for jurisdiction do exist, the court has discretion whether or not to order discovery.

(3) The Court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

(4) The Peruvian Guano test remains the test of relevance.  A document is relevant if:

(i) it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or

(ii) it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences.

(5) For the purpose of discovery, the pleadings have to be looked at broadly.

(6) The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving the discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(7) Notwithstanding the Peruvian Guano test, ‘fishing’ is not allowed, and discovery should not be oppressive.

(8) The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.”

10.  However in Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co. Ltd, unrep., HCA 677, 678, 2780/2006 and 658/2011, 15 April 2016, Registrar Lung, added at paragraph 20 as follows:

“20. The fact that Ds can simply say that they do not have the documents on affidavit should be final at the interlocutory stage under the above authorities may apply to some circumstances where the answer to the requests is simply no such documents were ever in possession, custody or power and no further explanation may be required. But this is not an absolute answer and the principle should not be applied mechanistically.”

11.  Further it goes without saying that both parties also have an ongoing obligation to make full and frank disclosure of their finances that is quite independent of applications of this type. Both parties to ancillary relief proceedings are under a continuing “duty to the court to make full and frank disclosure of all material facts to the other party and the court”: Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424 at 437H-438C per Lord Brandon of Oakbrook.

12.  As pointed out by Mr Chan for the husband the 18^th edition of Rayden is also of some assistance as to the correct approach to be taken. At paragraph 17:30 and 31 it states as follows:

Discovery of documents: questionnaire

17.30   In ancillary relief proceedings discovery begins with service of the Form E and the documents which are required to be attached to the Form E, and any other documents necessary to explain or clarify any of the information contained in the Form E.  Thereafter discovery is by mutual request by means of a questionnaire served in advance of the first appointment, and by further questionnaire at a later stage of the proceedings with the court’s permission. Questionnaires can, like interrogatories, request information as well as seeking production of documents.  As part of its case management role, the court should regulate the extent of the disclosure of documents so that the exercise is proportionate to the issues in question, and to ensure that the discovery process does not become a fishing expedition approved by the court. An order for discovery can only be made against a party to the application. Discovery encompasses all documents which are or have been in a party’s possession, custody or power relating to matters in question in the application for ancillary relief; it is a two-stage process: where objection is taken to production of a document in the possession or power of a party, the proper course is for the existence of the document to be disclosed and objection then taken to its production.  A party giving discovery is not obliged to disclose any part of a document which is irrelevant to the issues, and it is established practice to redact irrelevant parts of the document provided that the irrelevant part could be covered without destroying the sense of the rest of the document or make it misleading.

Meaning of: documents in the possession, custody, or power

17.31   In the context of discovery, ‘documents’ are given a wide interpretation and cover all mediums used for storing information, e.g. tape recordings and material stored on disk and computer.  Documents that are or have been in a party’s (or his agent’s) possession or custody are self explanatory; documents that are or have been in a party’s power include documents which, though they are not in his possession or custody, he has a right to obtain them from the person who has them.  ‘Power’ in this context means the enforceable right to inspect or obtain possession or control of the document.  If, however, a party is unable to produce documents because his solicitors are exercising a lien over them pending payment of fees on account, a subpoena duces tecum may be served compelling the solicitors to produce the documents notwithstanding the existence of the lien.

13.  In addition Mr Todd for the wife made a number of references to the well known case of B v B [1979] 1 ALL ER 801. This held as follows:

Held - (i)  Under RSC Ord 24, r 7(1)a the court had a discretion to order disclosure of particular documents specified or described in the application of the party seeking discovery which were in the possession, custody or power of the other party to the suit.  Accordingly, company documents which were relevant to the matters in issue in the litigation, although in the legal possession of the company, might be required to be disclosed by a director of the company who was a party to the suit if they were or had been in his actual physical possession, even though he held them merely as servant or agent of the company, since in that circumstance they were or had been in his custody.

Furthermore, even where the relevant company documents had never been in his custody, he might be required to disclose them because they were within his power, in the sense that he had an enforceable right to inspect them or to obtain possession or control of them.  Whether company documents were within a director’s power was a question of fact depending on his shareholding, whether the minority shareholders were adverse to him, the constitution of the board of directors and whether they objected to disclosure of the documents.  Documents would not be within his power merely because he had a right under s 12b of the Companies Act 1976 to inspect them; but where the company was the director’s alter ego, so that he had unfettered control of its affairs, company documents would be within his power (see p 806 d e, p807 a b and d to h, p 809 a b and e and p 811 c to e, post); Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1973] 2 All ER 1169 applied.

(ii) Where disclosure was ordered of relevant company documents in the custody or power of a husband who was a director of the company, the court’s discretion under RSC Ord 24 whether to order production of them should be exercised by balancing the relevance and importance of the documents and the hardship likely to be caused to the wife by their non-production against any prejudice likely to be caused to the husband or to third parties, such as other directors and shareholders, if an order for production was made.  However, it was not the court’s practice to order production of company documents where the board of directors of the company objected on affidavit to production, provided that the objection was not contrived to frustrate the court’s powers (see p 810 h j and p 811 e f, post).

(iii) Although, in an application by a wife for financial provision, disclosure of the audited accounts of a company of which the husband was shareholder would in most cases be sufficient disclosure, together with full disclosure of the husband’s financial records, there were cases where the court would go behind the company accounts and order discovery of specific company documents.  The documents relating to the husband’s entertainment and travel expenses and his expenditure on his family were relevant to the applications which were before the court, and since those documents had been in the husband’s custody, they should be disclosed and, subject to any objection to their production, produced for inspection.  However, the documents specified in cl 17 of the order did not appear to be relevant to the matters in issue, nor could it be said that the company was the husband’s alter ego so as to confer power on him to produce those documents.  Accordingly cl 17, save for certain provisions, would be deleted from the order (see p 810 c d, p 812 b to f and h and p 813 a, post).

With respect I agree.

Discussion

14.  I shall now turn to each party’s summonses and to the requests that remain outstanding for further discovery, which I will deal with in turn.

Wife’s outstanding Requests

Request 1

Notwithstanding the objection of the company, the Respondent do within 14 days answer the following questions in relation to (i) D Limited; (ii) E Limited; (iii) F Limited and (iv) save as already disclosed, other similar company(ies) comprising his family members as directors:-

(1) Please state the purpose of incorporation and the details of the directors and shareholders of this company.  Please also provide a copy of the certificate of incorporation, Register of Members and Register of Directors.

(2) Please provide a copy of the company’s audited financial statements since incorporation.  If the same is not available, please explain the reasons and provide the management account in support instead.

(3) Please confirm whether this company owns any real properties in Hong Kong or elsewhere in the world. If yes, please identify these real properties and provide details of their purchase (i.e. date of purchase, consideration and source of funding) and their present values and provide documentary evidence in support.

(4) Please confirm whether this company has any subsidiaries.  If yes, please identify the subsidiaries and provide copy of bank statements and audited financial statements since its date of incorporation.

15.  Mr Todd said that the husband’s initial response namely that a) he was no longer a director of the companies, b) that in any event he has never held a beneficial interest in them and c) that he has filed an affidavit to that effect, was insufficient. He argued that the wife was entitled to the information that had been in the husband’s custody, possession or power, during the period of time that he was a director, when he should still have had access to the information in question in any event.

16.  Mr Chan for his part pointed out that a great deal of information had been provided already and that the husband had given everything that he has on affidavit. He queries what else can be done is the circumstances and what in reality is still outstanding.

17.  I accept that the husband has largely dealt with sub paragraphs 1 and 2. In so far as sub paragraphs 3) and 4) are concerned he shall use his best endeavours to provide the information sought and to put his answers in affidavit form both as a former Director of the companies and generally. He is to provide whatever additional documents he can. For the avoidance of doubt he is not required to reproduce those documents that are already on the court record. He must also show what further attempts he has made in that respect. An affidavit in this regard shall be filed at court within the next 14 days.

Request 3

The Respondent do within 14 days gives full particulars of the purpose and sources/destination of the deposits/withdrawal in his HSBC Premier Hong Kong Savings and Foreign Currency Savings accounts (607-0XXXXX-888) including identifying the accounts and producing copies of banks statements as well as copies of the cheque deposits/withdrawals in respect of the following accounts where the deposits/withdrawals came from/to in which the Respondent has interest:-

(1) 2XX-2XXXXX-8XX

(2) 8XX-7XXXXX-0XX

(3) 4XX-1XXXXX-0XX

(4) 5XX-4XXXXX-8XX

The Respondent do within 14 days answer the following requests with supporting documentary evidence in respect of the sale of J Group shares in 2008 from the documents that are or will be in his possession:-

(i) Of the Respondent’s statement that the shares in J Group which were sold in or around 2008, the Respondent to confirm the number of shares sold, the amount of sale proceeds received and identify the recipient of the sale proceeds together with supporting evidence.

(ii) Of the statement that “the Respondent does not have a beneficial interest in the shares nor the sale proceeds arising therefrom as the same belongs to his mother entirely”, the Respondent to confirm whether he has ever received any amount or interest of and in the sale proceeds from the sale of the J Group shares, or any part thereof, whether directly or indirectly, with others in joint names with persons or bodies other than the Respondent, in the name of bodies corporate, pseudonym or numbers.  If so, the Respondent to produce details of the amount received together with supporting documentary evidence.

18.  The first part of this request is more problematic. The wife is asking the husband to produce further information in relation to accounts which are not held in his name. Further she has not identified the particular deposits or withdrawals going either into or out of the husband’s accounts that she has a difficulty with. The wife suspects that money is going in and out of other family held accounts and that the husband has a beneficial interest in those accounts. But as Mr Chan points out how can the husband be asked to disclose information about accounts that he does not legally hold? Unfortunately, this request seems very close to a fishing expedition and as such cannot be allowed. In any event I question the need for this level of disclosure prior to the Financial Dispute Resolution hearing. I accept that the wife may wish to revisit this line of enquiry if agreement is not reached and this matter proceeds to trial. In that event she will need to further particularize her request with reference to monies going in and out of the husband’s account.

19.  In so far as the second part of the question is concerned in sub paragraphs (i) and (ii), the husband has agreed to trace the records of distribution and thereafter their usage, so as to demonstrate that his mother is the sole beneficial owner of the G trust. When I asked during the hearing how quickly this and other tables could be produced I was told, when pushed, that he could do so within the next 42 days. That time has now elapsed. Consequently, this and other such tables shall now be produced, in the event that they have not been produced already, within the next 14 days.

Request 5

The Respondent do within 14 days answer the following questions with supporting documentary evidence in respect of G Trust from the documents that are or will be in his possession:-

(i) The Respondent to produce copies of all Letters of Wishes or Memorandum of Trust of The G Trust or their equivalent copy by the Settlor and/or Protector of the Trust to the Trustees of The G Trust.

(ii) The Respondent to produce copies of the Annual Accounts of The G Trust since 1 January 2010 to date.

(iii) The Respondent to give particulars of all advances, distributions and/or other amounts paid to or on behalf of all or any of the beneficiaries of The G Trust by the Trustee of The G Trust since 1 January 2010 to date.

(iv) In respect of all amounts under Request 80 above which were paid to the Respondent directly or indirectly:

(a) Please state into which bank account(s) the same were paid, identifying the date and amount of each payment; and

(b) Please identify all such amounts in the bank statements produced or to be produced.

20.  As indicated above the concern here is that the husband appears to no longer be a beneficiary of the trust. According to Mr Todd they now know that the husband was a beneficiary on the 8 April 2016 but that by the 25 May 2016 he had ceased to be a beneficiary. Further details have not been forthcoming. Mr Todd asks that the husband provide all the necessary information until such time as he was excluded as a beneficiary, on a best endeavours basis. The husband for his part says that he has provided what he can and that in any event as a beneficiary of a trust is not entitled to sight of the relevant Letters of Wishes. Mr Chan adds that his client does not have this document in any event. There is therefore no basis upon which he can comply with the request that has been made. I accept what he says in that respect.

21.  In addition, in so far as sub paragraphs (iii) and (iv) are concerned the husband has again offered to put “…together a table, setting out the various distributions of G Trust to the best of [his] knowledge and information which [he] handled for [his] mother, to prove all such distributions were expended for [his] mother’s benefit and that [he] had and [has] no beneficial interest in these funds at all. Again in the event that this information is still outstanding I will make an order that the husband produce the same within the next 14 days. I do not intend to make any other orders with respect to Request 5 save that the husband is to use his best endeavours to comply with sub paragraph (ii) to the extent that he has not already done so. Again for the avoidance of doubt such information shall be provided in the same affidavit which is to be filed and served within the next 14 days.  

Husband’s outstanding request

22.  The husband has a number of requests which relate to the provision of outstanding documents under question 1, question 2.1, question 3.1(a) and question 3.1(c) of his third questionnaire dated the 6 June 2016 as follows:

Part 2- Assets

1.   In respect of the matrimonial home at XXA, Tower X, X Towers, Tin Hau, Hong Kong, please provide documentary evidence in support of the Petitioner’s claim that she made a total of HK$5.8million as contribution to the downpayment (around HK$4million) and renovation expenses (around HK$1.8millin) in relation to this property as per the Petitioner’s Answer dated 30^th December 2015.

Part 2.3 - Bank Accounts

2.1   Please state the source, including but not limited to the identity of the recipient(s)/payer(s), and purpose of the following deposits or withdrawals in the following account(s) and provide documentary evidence to support the answer:

for CheckLink Savings 11XXXXXX HKD

Date	Description	Deposit (HKD)	Withdrawal (HKD)
07/04/2014	Transfer		21,302.18
10/04/2014	Cash Withdrawal		20,000

3.1   Please state the source, including but not limited to the identity of the recipient(s)/payer(s), and purpose of the following deposits or withdrawals in the following account(s) and provide documentary evidence to support the answer:

Date	Description	Deposit (HKD)	Withdrawal (HKD)
19/06/2014	GOLD/ EXCHANGE CREDIT	58,057.60

Date	Description	Deposit	Withdrawal
13/09/2013	DEPOSIT	AUD18,900
24/10/2013	WITHDRAWAL		AUD17,500
06/12/2013	DEPOSIT	AUD106,000
10/12/2013	WITHDRAWAL		AUD105,968.78
13/03/2014	DEPOSIT	AUD18,900

23.  The wife has answered either that she has not been able to find the relevant documentary evidence yet and that she needs more time or that she is checking with the bank or that she could not recall. Initially the husband asked the wife to produce these outstanding documents within the next 28 days. Infact given the length of time since the hearing the wife has also had longer than that to produce these documents in any event. Mr Todd also accepts that she should now be ordered to produce them. Consequently, the wife shall now produce these outstanding documents within the next 14 days, to the extent that they have not been produced already.

Question 5 and 11

5.  From the bank statements or other records provided or to be provided of the following accounts:

(a) Citibank

(i) Savings (and Investment) Account no. 1XXXXXXX;

(ii) Checking Account no. 1XXXXXXX;

(iii) Call Deposit Account no. 8XXXXXXX;

(b) HSBC China Savings Account no. CN-HSBC-1XX-1XXXXX; and

(c) Westpac Bank Savings Account no. 6X-1XXX.

Please identify:

(a) all incoming deposits into the accounts coming from the Petitioner or any funds or accounts held in her name (identifying the source account and records);

(b) all incoming deposits into the accounts that the Petitioner alleges comes from her father, together with documentary support evidencing that such funds come from the Petitioner’s father;

(c) all incoming deposits into the accounts that the Petitioner alleges comes from person(s) other than the Petitioner or her father, together with documentary support evidencing the origins of such funds;

(d) all outgoings or withdrawals from the accounts that the Petitioner directly or indirectly went to or through the hands of the Petitioner or any account held in her name (identifying such account and records);

(e) all outgoings or withdrawals from the accounts that the Petitioner alleges went to her father, together with documentary support evidencing that such funds did in fact go to the Petitioner’s father;

(f) all outgoings or withdrawals from the accounts that the Petitioner alleges went to person(s) other than the Petitioner and her father, together with documentary support evidencing the destination o f such funds; and

(g) all funds or monies originating from the accounts that the Petitioner alleges went to pay for or discharge her father’s expenses, together with documentary support evidencing that the money has in fact been so used.

11.   From the bank statements or other records provided or to be provided of the following accounts:

(a) Citibank Bonds Brokerage Service Account no. 2XXXXXXX;

(b) HSBC Premier

(i) Investments Account no. 0XX-0XXXXX-8XX;

(ii) Foreign Currency Savings Account no. 0XX-0XXXXX-8XX;

(c) ANZ Bank

(i) Term Deposit Account no. 9XXX-5XXXX;

(ii) Term Deposit Account no. 9XXXX-2XXXX; and

(iii) Term Deposit Account no. 9XXX-6XXXX;

, please identify:

(d) all incoming deposits into the accounts coming from the Petitioner or any funds or accounts held in her name (identifying the source account and records);

(e) all incoming deposits into the accounts that the Petitioner alleges comes from her father/aunt (as the case may be), together with documentary support evidencing that such funds come from the Petitioner’s father/aunt;

(f) all incoming deposits into the accounts that the Petitioner alleges comes from person(s) other than the Petitioner or her father/aunt (as the case may be), together with documentary support evidencing the origins of such funds;

(g) all outgoing or withdrawals from the accounts that directly or indirectly went to or through the hands of the Petitioner or any account held in her name (identifying such account and records);

(h) all outgoings or withdrawals from the accounts that the Petitioner alleges went to her father/aunt (as the case may be), together with documentary support evidencing that such funds did in fact go to the Petitioner’s father/aunt;

(i)  all outgoings or withdrawals from the accounts that the Petitioner alleges went to person(s) other than the Petitioner and her father/aunt, together with documentary support evidencing the destination of such funds;

(j)  all funds or monies originating from the accounts that the Petitioner alleges went to pay for or discharge her father/aunt’s expenses (as the case may be), together with documentary support evidencing that the money has in fact been so used.

24.  It is the wife’s case that she will need to instruct an accountant to trace the movement of the funds in question and that she needs further litigation funding in order to do so. Consequently, it has been agreed that both of these questions shall be adjourned to the maintenance pending suit hearing which has now been listed for the 19 April 2017 at 10:30 am.

Question 6 and 12

6. Please provide the account opening documents of the following banks:

(a) Citibank

(i) Savings (and Investment) Account no. 1XXXXXXX;

(ii) Checking Account no. 1XXXXXXX;

(iii) Call Deposit Account no. 8XXXXXXX;

(b) HSBC China Savings Account no. CN-HSBC-1XX-1XXXXX; and

(c) Westpac Bank Savings Account no. 6X-1XXX.

12. Please provide the account opening documents of the following accounts:

(a) Citibank Bonds Brokerage Service Account no. 2XXXXXXX;

(b) HSBC Premier

(i) Investments Account no. 0XX-0XXXXX-8XX;

(ii) Foreign Currency Savings Account no. 0XX-0XXXXX-8XX;

(c) ANZ Bank

(i) Term Deposit Account no. 9XXX-5XXXX;

(ii) Term Deposit Account no. 9XXX-2XXXX; and

(iii) Term Deposit Account no. 9XXX-6XXXX.

25.  I accept that as the legal owner of the accounts in question that the wife is entitled to ask for these documents. In the same way as the husband, it seems to me that the wife needs to use her best endeavours to obtain such documents and to file an affidavit exhibiting the same within the next 14 days.

Question 7

7.  Please provide all documentary evidence showing the source of the initial funds deposited/transferred into the following accounts, if the Petitioner’s allegation is that those funds came from person(s) other than herself:

(a) Citibank

(i) Savings (and Investment) Account no. 1XXXXXXX;

(ii) Checking Account no. 1XXXXXXX;

(iii) Call Deposit Account no. 8XXXXXXX;

(b) HSBC China Savings Account no. CN-HSBC-1XX-1XXXX;

(c) Westpac Bank Savings Account no. 6X-1XXX.

26.  Likewise, I also accept that this is a relevant question and one that needs to be answered on the same premise. In particular, the wife has said that she will reactivate her HSBC China savings Account in order to obtain the necessary documentary evidence to supplement her answer. This now needs to be done and I therefore make an order that the wife provide the information in paragraph 7 on the same basis as above.

Costs

27.  Costs shall be reserved in the first instance to the maintenance pending suit hearing for further direction.

Further directions

28.  Further and for the avoidance of doubt there shall be a further First Appointment hearing on the 19 April 2017 at 10:30 am. Both parties do personally attend that hearing.