LI WAI TAT WALTON v. LI MAN YORK EVELYN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 70
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by the respondent ("the wife") against the judgment of Deputy Judge Saunders dated 19 January 1998. A decree of divorce had been granted upon the petition of the husband who then applied for ancillary relief. The wife likewise applied for ancillary relief on the following day, 5 December 1995. She now appeals against the award made by the deputy judge.

The facts

2. These can conveniently be taken from the judgment. Both the husband and wife at the time of the proceedings were aged 49. They had been married for 23 years. They met as students when both were living in Los Angeles attending university. Both came from wealthy backgrounds and received considerable assistance from the husband's parents to enable them to start life together. The husband's parents gave them funds to buy a good home in Los Angeles. When the first child was born, an amah was sent to Los Angeles from Hong Kong to assist the wife.

3. There are two children of the marriage, Adrienne, a daughter aged 23 at the time of the proceedings was then at university in Hong Kong, having graduated from a university in Boston. The younger, a son, Brian, then aged 20, was at university in San Francisco. No issue arose in respect of them as there were ample funds from which they will be cared for and the wife did not seek to include them in her award.

4. During his medical education at university the husband had an allowance from his parents which enabled him and the wife to live to a very good standard. In due course the husband qualified as a doctor and obtained specialist qualification as an ophthalmologist. The husband's family is a prominent and successful medical family which, in 1922, was instrumental and establishing what is now Hong Kong's largest private hospital, the Hong Kong Sanatorium and Hospital Ltd ("the Hospital").

5. The wife graduated with an MBA and qualified as a real estate broker, but although there was an opportunity for her in Los Angeles, she did not take up a job. Her family was from Vietnam and that fact enabled the parties to obtain US citizenship while they lived in Los Angeles. Her parents are also very wealthy. She, however, is one of 13 children, 11 daughters and two sons. By 1979 the husband had obtained the qualifications mentioned and was on the teaching staff at the University of California, Los Angeles. He and his wife had the two then young children and were settled in California with the husband looking forward to a career in academic medicine and practice as an ophthalmologist.

6. However, in 1980 they returned to Hong Kong and the husband joined his father at the Hospital. The couple soon began to live to a standard which the judge described as consistent with that of a successful and prominent medical practitioner in Hong Kong. They were both keen golfers and enjoyed club and social events. The marriage was apparently happy and successful. However, it was destroyed when the wife in October 1994 discovered a condom or condoms in a drawer in the husband's office. Following that in February and March 1995 the wife made a number of substantial withdrawals from the husband's bank accounts and refused to explain to him what had happened to the proceeds. In July 1995 the husband issued a petition based on the wife's unreasonable behaviour which went to trial before Deputy Judge Carlson (as he then was) who granted a decree nisi on 15 November 1996.

7. It remains to mention that about the time the divorce proceedings were approaching hearing, the wife sought maintenance pending suit and was granted $95,000 a month together with certain other expenses by Hartmann J.

The judge's approach

8. Having outlined the foregoing matters in his judgment, the judge then correctly directed himself on his duty to have regard to s.7(1) of the Matrimonial Proceedings and Property (Cap. 192) ("MPPO") noting the "reasonable requirement" formulation and the principles set out in the judgment of Hunter JA in C v C [1990]2 HKLR 183, 186-7. Likewise, with respect to the Duxbury calculations submitted by the parties, he noted their limited usefulness by reference to B v B [1982]3 FLR 298. He then proceeded to identify and value the financial resources of the parties (save those that he did not think it necessary to value) in pursuance of paragraph (a) of s.7(1), turning later to the remaining paragraphs, i.e. (b) to (g), and lastly to the Duxbury calculations.

Resources

9. The husband produced a list of all the assets in the parties' names or held in trust for them. This was used as the working basis for identifying their assets with the agreement of the wife, and admitted as Exhibit P1. Upon that basis the judge identified the following assets, beginning first with those agreed, and following with those in dispute.

Agreed assets

The matrimonial home

10. The matrimonial home was House B9, Hillgrove, Chung Hom Kok in Hong Kong ("Hillgrove"). The agreed value as at November 1997 was $29m. It was subject to a mortgage of $4,068,500 which was advanced to the husband by his mother. Later a trust fund was established for the husband (the Waltly No. 1 Trust) and the mortgage was transferred to that Trust. The husband paid the interest.

The Los Angeles houses

11. There are two houses in California one at Bel Air ("Vicenza") and the other in Los Angeles ("Roscomere"); this property is debt free and has an agreed value of US$650,000. Roscomere has an agreed value of US$558,000, but it is subject to a mortgage of US$500,000. It is kept vacant and is the family home on their trips to California. The income from Vicenza finances the mortgage on Roscomere, subject to a small deficiency covered from Hong Kong income.

Cars

12. The family had seven cars, two in Los Angeles and the other five in Hong Kong. The value in Exhibit P1 was given as $2,154,660.

Retirement investment accounts

13. The husband had two retirement investment accounts of US$214,921 and US$1,207,030, totalling HK$3,261,629.

Jewellery

14. The wife had jewellery of an agreed value of $750,000 which she wished to retain.

Club membership

15. The parties were members of eight clubs. In addition, they had the use of the Aberdeen Marina Club through the husband's sister. The memberships of only two of the Clubs were allocated a value in Exhibit P1, i.e. the Singapore Island Country Club with a value of $869,120 and the Xili Golf & Country Club $720,000.

Disputed assets

The wife's bank accounts - the non-disclosure

16. As indicated, the event that triggered the filing of a divorce petition by the husband was his discovery that the wife had removed very substantial sums from his bank accounts. It should, however, be mentioned again here that it was the wife's earlier discovery of evidence in the husband's office which in the absence of any explanation pointed to his infidelity that led to the breakdown of mutual trust. Although the husband earned around $10m a year, and still had substantial sums in the bank, he was very concerned at the disappearance of the funds as he had US income tax to pay. From the very inception, and throughout the whole of the proceedings, the husband's solicitors repeatedly pressed the wife to disclose what had happened to the funds. She persistently evaded their requests and released only limited information. During the trial it became necessary for the judge to make orders requiring the wife to disclose information relating to her bank account she held with the Coast Federal Bank in California, which resulted in yet another previously undisclosed account with that bank, being discovered. The judge was satisfied that the wife had patently and deliberately failed in her obligation of full and frank disclosure to the court and had intentionally concealed from the court assets in her name or held for her by others which she knew she ought to have disclosed. He added

"Her evidence in relation to withdrawals from accounts in Los Angeles of three sums totalling US$246,228 on 13 June 1995, after the proceedings had been commenced, was evasive and dishonest. I categorically reject her explanation that she 'could not remember' what she had done with the funds. It is simply unbelievable that a person in such circumstances would 'forget' what she had been done with nearly $2m withdrawn in one day from the bank .... That is especially so for a witness who, when it suited her, could remember any detail she wished to recall".

17. He also rejected her explanation of disposal of funds totalling nearly $7m from Hong Kong bank accounts on 16 February 1995 and 2 March 1995 as equally unbelievable. That included her assertion that she "gave away" the funds to her sisters, mother and friends. He concluded that if she had so given away funds that it was more likely that she had merely placed them with the people concerned on the basis that the funds would be returned to her at her request, as was the case with $500,000 she gave her mother.

18. It is not necessary to recount the details of the withdrawals and the wife's explanations rightly categorised as contradictory and duplicitous by the judge. Suffice it to say that her counsel conceded that she should account for some "$8-9m". The husband's accountants prepared and submitted a comprehensive and extensive assessment of the unexplained withdrawals. Whatever the wife explained satisfactorily was immediately removed from the list. The rest, the judge observed, the wife could easily have explained. She was given time to do so. In the result, he was satisfied that it was proper for him to draw adverse inferences against her, given her non-disclosure. The husband's solicitors had ultimately identified 19 withdrawals, totalling $15,779,564 for which, the solicitors claimed, the wife had failed to properly account. The judge accepted that of that sum $1,115,984 had to be deducted as being outside the relevant period leaving a balance of $14,663,670.

19. In the result, he was satisfied that the wife had removed those funds and either concealed or placed them with persons who would in due course pay them to her and that accordingly she must account for them. He added:

"... to the extent that she has already used the funds she has had the benefit of them. That sum (rounded to $14,500,000) must therefore be deducted from the award that I made for her".

20. It is convenient in the present context to mention that Mr Scott contended that at least $1m odd should be deducted from that amount as the wife had spent that amount. I shall return to this latter matter in the context of the wife's resources.

The husband's Waltly No. 1 Trust Fund

21. This was set up by funds provided by the husband's mother. The trust deed described the husband, his sister and brother and his and their descendants as the beneficiaries. Using his power of nomination, the husband removed the wife from the list of beneficiaries. The judge found the current value of the assets of the Trust Fund including the mortgage to be some $24.5m. $10m of that amount was accepted by the husband as having come from the interest he had paid to the Trust on the mortgage loan compounded at 7%, i.e. amounting to some 40% of the Fund. The judge, having reviewed the matter, said this:

"For these reasons, I am satisfied that when considering the wife's claim I can have regard to the funds available to the husband through the medium of the Waltly No. 1 Trust.

In so finding I make it clear that I do not consider these funds to be 'family assets', to be added to the assets in the names of the husband and wife. The trust fund is simply a sum, the existence of which I can have regard to when making orders."

The husband's interest in the Hospital

22. The husband had three forms of interest in the Hospital. First, an interest as potential general manager. Second, as holder of 100 shares in the Hospital. Third, an interest in 5,300 shares in the Hospital held by the Twinbrook Trust, a family trust established by the husband's parents in July 1981.

23. The great bulk of shares in the Hospital were held by a charitable foundation. The remaining 5,300 shares were held by the Twinbrook Trust.

24. The Hospital Articles of Association gave the husband's father a general manager power to appoint his successor as such. It also granted to the general manager an annual commission or bonus of 10% of the Hospital profits. In recent years this sum has exceeded $10m and upon the draft and unaudited accounts for 1997 could exceed $14.3m.

25. The husband is a Deputy General Manager of the Hospital and receives in that capacity $2m per year. He is also a Director of the Hospital and holds 100 shares as qualifying shares. The value of these 100 shares was disputed, the husband's accountant contending for $848,548 on a dividend yield basis, and the wife's side $16,720,000 on a net asset value basis. The judge decided that he did not need to determine the value.

The husband's expectations on his parents' deaths

26. The husband's father at the time of the trial was aged 95 years, the husband's mother was aged almost 90. They gave evidence that they had made mutual wills leaving life interests to each other and on the death of the survivor a gift over to their children equally. The judge noted that statistically, both could only look to a short future life span. He concluded that the assets comprising their estate would fall to be included in the resources available to the husband in the foreseeable future.

27. The evidence indicated that there were three assets which comprised the parents' estate in which the husband would share. First, the capital and income of a numbered account within the Twinbrook Trust, then containing $7m. This was to go to the Waltly No. 1 Trust.

28. The second asset is the capital and income of a second numbered account in the Twinbrook Trust. The trustees are to hold this account for the Waltly No. 1 Trust, and for two other trust funds which benefit the husband's sister and brother. The account includes the 5,300 shares in the Hospital. The wife's accountant valued the shares upon a net asset value basis at $15,170,000, but conceded he would not purchase at that price. The husband's accountant upon a dividend yield basis of valuation valued the husband's interest in the shares at between $233,272 and $279,926. Again, the judge decided that he need not resolve that very substantial difference.

29. The third asset the parents owned consisted of two penthouse flats at Twinbrook Apartments on Repulse Bay Road. The judge valued the these at about $60m, i.e. the husband's one-third share being $20m.

30. On that basis the judge held that the husband could look to an inheritance that could be valued at a sum in excess of $27.3m in the foreseeable future. He added:

"As I am satisfied that the wife's reasonable needs may be met by orders which do not require the husband to use these funds in any way in order to meet his obligations I do not need to make any better assessment of the value of that inheritance other than to say it is in the order of that sum.

Again, however, I make it clear that this sum of $27.3m is not a sum simply to be added to the 'family assets' but a sum to which I can have regard when assessing the extent and nature of the orders to be made and the ability of the husband to meet the orders made."

Section 7(1) of MPPO

31. Having dealt with his assessment of the parties' property, the judge proceeded to the assessment of his award of ancillary relief to the wife. He headed that part of his judgment: "Section 7(1) of MPPO". Clearly, that was because s.7(1) specifies the matters which, together with any other circumstances that may be relevant, are to be taken into consideration in such assessment. He referred to each of the paragraphs (a) - (g) indicating the matters concerned in the headings and dealing with all of them.

The Duxbury calculations

32. The judge began his consideration of the wife's Duxbury calculation by rightly reiterating the limited value of such calculations. The wife's advisers, he noted, had said that her spending pattern showed that she was accustomed to spending some $218,000 a month. That figure, he noted, could not be justified by reference to records alone and that the wife's consistent explanation as to the additional funds required to bring her spending to that level was to say that the extra came about by way of cash expenditure.

33. He went through the wife's calculation dealing with each item or head of claim, accepting some, rejecting or reducing others. He arrived at the monthly figures shown in the last column of the following schedule which also shows in the second and third columns the amounts claimed by the wife in a second report commissioned for the purpose, and in the final submission made on her behalf:

Turning then to address the required capital sum, the judge said this:

"On the strict basis of a Duxbury calculation the sum required to produce a monthly income for the wife of $100,000 is $18,600,000. Such a sum reflects recent adjustments in US Capital Gains Tax, the repayment of the mortgage at Roscomere Road in 2008 and the need for the wife to replace a car on a regular basis (see Accountant's bundle p.28). On any terms a monthly income of $100,000, after tax, is a very comfortable income for a person who has substantial debt free accommodation.

As I have said, the Duxbury sum is not an absolute. It assists the court in assessing the sum required to meet the applicant's reasonable needs. Taking a broad view of the lifestyle to which the wife was accustomed, and having regard to all of the circumstances to which the court much look pursuant to s.7(1) MPPO I find that to effect a clean break between the parties a capital sum award to the wife of $20m together with the order I have made in relation to the matrimonial home will meet her reasonable needs."

The judge's order

34. The judge then made the following orders to give effect to his findings. The two cars that were in California and one of the cars in Hong Kong were given to the wife (one of the former apparently for use of the son). The husband was likewise to have three cars (apparently one of these for the daughter and the other for the "family").

35. The jewellery in possession of the wife was to be vested in her as her sole property.

36. Roscomere and Vicenza were to be vested in the wife as sole proprietor.

37. Hillgrove was to be sold on terms the judge specified. From the net proceeds $16m was to be paid to the wife to enable her to acquire a home for herself. Provision was made for fluctuation of the price up or down. The balance of the net sale proceeds was to be paid to the husband.

38. The husband was to pay the wife $300,000 as a contribution to the entry fees to three clubs.

39. In respect of the unexplained withdrawals by the wife, she was required to give credit in the sum of $14,500,000, and also to bring into account the value of the California property, i.e. $5,472,840, i.e. making a total sum of $20,000,000 for which she would have to give credit.

The wife's appeal

40. The wife's notice of appeal listed no less than 14 grounds. However, Mr Scott SC who, with Mr Michael Poll, appears for her helpfully divided these into two groups, one of nine being ancillary or consequential to the main wife's ground, i.e. 3, 4, 5, 6, 7, 8, 9, 10 and 11. The main ground was that the judge adopted the wrong approach by reason of which his award was flawed. There were a number of strands to this submission. It ran along the following lines. The judge misconstrued s.7(1) in addressing the reasonable needs instead of the reasonable requirements of the wife as the criteria, thereby adopting an excessively budgetary approach which produced a wholly inadequate award. After deduction of $16m for accommodation in Hong Kong and $5.5m for the Californian property, the wife would be left with inadequate funds to meet her expenses even upon the judge's own calculations. Miss Eu SC, for the husband, of course, resists those submissions. I now turn to address them.

Limited scope for intervention in trial court's exercise of discretion

41. It is not in dispute that there is a very high threshold to be crossed before an appeal court can properly intervene in a trial court's assessment of ancillary awards. Miss Eu has helpfully provided citations of some of the more apposite formulations. I set out only the following two citations by way of illustration:

"I do not say that I myself would necessarily have reached the same conclusion as the judge. ... Nevertheless I find myself unable to hold that the judge's decision exceeds, in the words of Asquith LJ 'the generous ambit within which reasonable disagreement is possible', particularly having regard to the broad terms in which the legislature has conferred the relevant discretion." (per Slade LJ in Whiting v Whiting [1988]1 WLR 565, 580H.

"... an Appellate Court will disturb a judge's assessment only if he misdirects himself or if his assessment falls outside such generous ambit and is clearly wrong." (per Hunter JA in C v C [1990]2 HKLR 183)

Reasonable needs as opposed to reasonable requirements

42. The effect of s.7(1) MPPO inter alia means that what is required is a "quantification of needs, of 'reasonable requirements' in the broadest sense of that phrase, of the claims of both parties to the assets in the light of all the circumstances and in the light of the considerations specifically named in s.7(1) (per Hunter JA in C v C at p.190I).

43. Mr Scott points out that the material words used are "reasonable requirements". The difference between the expressions reasonable requirements and reasonable needs, Mr Scott points out, was explained by Thorp LJ in Dart v Dart [1996]2 FLR 286; 296F:

"... reasonable requirements are more extensive than needs. As a matter of ordinary language what a person requires is likely to be greater than what that person needs."

44. Reasonable requirements, he submits, are to be assessed by reference to inter alia the standard of living enjoyed by the parties before the breakdown of the marriage and it is against that standard that the wife's requirements have to be assessed. That seems to me to be obviously right upon the plain wording of s.7(1)(c) and is not disputed by Miss Eu. The parties' standard of living is a matter that I shall have to return to in the context of another submission made by Mr Scott. Reverting to his submission that regard was had to reasonable needs, Mr Scott relies first of all upon the frequent use of that expression in the judgment sometimes in an important context. However, there are also references to reasonable requirements. If therefore the point is not to degenerate into a meaningless debate on semantics, it falls to be resolved by whether or not it can be established by reference to his judgment that the judge did have regard to reasonable needs in the sense of an excessively budgetary approach and without due regard to the reasonable requirements of the wife measured by the family lifestyle prior to the breakdown of the marriage. The question of whether the judge did err in having regard to reasonable needs as opposed to reasonable requirements in the broad sense mentioned, has therefore to be left to be addressed after those matters have been examined. I shall return to it in due course.

45. Before moving on, the following two matters should be mentioned. First, the minor debate as to whether this was a "big money" case, which Miss Eu strongly and, I think, rightly disputed. However, insofar as this case may be assisted by relevant considerations pertaining to "big money" cases, they would, I think, be these. The absence of a ceiling on available resources must mean that reasonable requirements, including in particular those flowing from the lavish or luxurious style of the family concerned can be given relatively free rein. But that in no way means that in other cases the former lifestyle should be unnecessarily diminished. Of course, if there are insufficient funds, the former lifestyle is likely to have to be cut back to what is available. These considerations are relevant in the light of the judge's decision that it was not necessary to assess some of the husband's assets because the reasonable needs of the wife could be met without recourse to those assets, and the wife's submissions that an excessively budgetary or needs approach was adopted by him. An excessively budgetary approach, as Mr Scott submitted, was disavowed in Cornick v Cornick (No.2) [1995]2 FLR 490; 494. The judge's budgetary or routine expenditure analysis, he submits, was a fundamentally flawed approach contrary also to the statutory criteria in s.7(1) with inter alia their specific reference to the former lifestyle in paragraph (c).

Financial resources

46. This is the first of the matters specified in s. 7(1) of MPPO to which regard has to be had in making an ancillary relief award. It is expressed in the following way in paragraph (a):

"(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future."

I have first to mention in passing some unprofitable argument directed to whether this should be the first of the matters referred to in s.7(1) to be addressed in ancillary relief applications. It seems to me that plainly it would ordinarily be sensible and natural to identify the family assets and quantify them before apportioning them. That may not be necessary if there was plainly more than enough to fund the largest order in favour of the wife that the court could reasonably make; see Lo Shiu Chun v Law Ying Chee Fogg [1994]1 HKC 227, 233, 236. If specified shares were first awarded they would have to be revised if it turned out later that there was insufficient to meet them. That said, I cannot see that much turns upon the point. In the end, in the ordinary way it would be surprising if the right result were not reached provided all the matters specified and "the conduct of the parties and all the circumstances of the case" also required to be taken into consideration by the opening words of s.7(1), were properly taken into account.

The wife's resources

47. Only one item of significance was attributed to the wife, i.e. $14.5m being the rounded down balance the judge found that the wife had retained out of the sums she drew out of the husband's account. Mr Scott contends that this should be reduced by the amount of about $100,000 per month that she must have been spending on maintenance for the year between the ending of her withdrawals and the award of maintenance pending suit. The judge rejected this, stating that "To the extent that she has already used the funds she has had the benefit of them". This reason on its own is insufficient to explain the denial to her of maintenance for that period. The wife was plainly entitled to a reasonable amount for her maintenance. For her part, Miss Eu submits that the amount of $14.5m should be treated as the very least that the wife acquired. One cannot help entertaining suspicions that such is the case, but they do not, in my view, warrant interference with the sum the judge arrived at. Although he could quite properly have made the inference that she had acquired more than $14.5m from the withdrawals she made, he did not do so. However, as will be seen, there is another way in which the matter may legitimately be approached.

The husband's resources

48. It can be seen from the account already given of the husband's assets that the judge did not attempt to quantify some of these, i.e. the husband's 100 qualifying shares in the Hospital, also the very substantial difference between the competing valuations of the 5,300 Hospital shares from which the husband and his two siblings would benefit, and likewise of the parents' two penthouse apartments, i.e. the Twinbrook flats, in which he could expect to similarly share. On the evidence there are plainly indications that the value of the husband's reasonable expectations would have been in excess of the $27.3m that the judge settled for. However, it does not seem to me that it is now open to the wife to contest that sum since her counsel below appears to have agreed that amount as the husband's inheritance expectations, surprisingly, it has to be said. I have also to say that it is very doubtful whether the failure to value these items had any material effect upon the outcome of the wife's petition.

49. Mr Scott, before us, contends that the husband's resources are comprised of the following items:

		HK$
(a)	Net cash	8,400,000
(b)	Inheritance of one-third of -
	(i) Twinbrook Trust	7,000,000
	(ii) Twinbrook flats	20,000,000
	(iii) 5,300 shares in the Hospital	300,000
(c)	Waltly No. 1 Trust	24,500,000
(d)	Retirement policies	3,261,679
(e)	Real property -
	(i) in Hong Kong - Hillgrove	29,000,000
	(ii) US properties net of borrowings	5,500,000
	Total	97,961,679

50. It did not become clear what amount the wife was contending was the total value of the husband's assets. Mr Scott, on the basis of his foregoing account, mentioned HK$107.960m, that is until Miss Eu pointed out that the total was miscalculated and should be $97 odd million, which resulted in the corrected total of $97,961,671 (sic) being substituted. But as will be seen, the precise total is not of particular consequence, since it does not reflect the husband's earnings which transform the position.

51. Turning then to the matter of the husband's income, this was HK$10m per year. Moreover, the husband has reasonable expectations of the strongest nature of succeeding his 93-year-old father in the position of general manager reasonably early in the foreseeable future. The net result of that after discounting some loss of earnings in his own practice, would yet be an increased salary of at least $20m and probably about $22m per year. In dealing with the husband's earnings, the judge mentioned only an income of $10m a year. Having said of the husband that "In due course he will assume the role of Medical Superintendent and General Manager of the Hospital" he went on:

"The divorce has been something of a mid-life crisis for the husband and his evidence was that he now wishes to devote himself more to academic work and less to the practice of medicine in a way that will continue to return the exemplary rewards that he has received in the past. In reaching my decision I am satisfied that the husband will be able to meet the orders that I make and still, if he wishes, follow a lifestyle that is less directed to the production of cash income."

The husband's income of $10m a year (disregarding the expected increase to $20 to $22m) is about ten times the provision of $1.2m per annum made for the wife by the judge. The foregoing simply cannot be a satisfactory way of dealing with income of such huge proportions, and the expected increase to which the husband upon findings made elsewhere in the judgment is likely to have in the foreseeable future. Although there is a finding that the husband's income was $10m per year, there is no direct finding as to the $20m to which he is likely to succeed nor as to his inheritance expectations. The $10m annual income is of itself of relatively such enormous proportions as to make credible, Mr Scott's contentions that this is a big money case. However that may be, the failure to take the subsisting income of $10m into account, given the indications of a "budgetary" and "reasonable needs" approach must be regarded as a flaw in the judgment. Capitalised upon any basis, it would very substantially increase the husband's resources. Viewed in another way, it would enable loan capital to be raised to meet both a substantially larger award and the purchase of homes by both wife and the husband.

Non-valuation of husband's expectations and trust interests

52. The judge did not make any valuation or other qualification of the husband's trust interests and inheritance expectations. Mr Scott submits that he was obliged to do so by s.7(1), and was in error in not doing so. If in fact the assets were so large that it was plain that the husband could meet any award that the wife could reasonably expect to receive, then it seems to me that the judge would be entitled and right to decline to value those interests and other qualification. But that seems to me not to be the position here, although the family assets are adequate for allowing the wife's award to be assessed in accordance with s.7(1) without imposing a ceiling which confines it to lower amounts that they would otherwise be.

53. Be all that as it may, there appears to be no point in pursuing this submission since it was apparently agreed below on the wife's behalf that $27.3m should be taken as the agreed value of the husband's expectations and trust interests. That was not disputed by Mr Scott. I confess to being mystified as to why the judge nevertheless proceeded to value the husband's expectations and trust interest "at a sum in excess of $27.3m".

Specific matters relied upon by the wife

54. Mr Scott sought to make good his more general points, e.g. that the judge had regard to reasonable needs rather than reasonable requirements and also that his approach to the wife's reasonable requirements was excessively budgetary and "needs" oriented by reference to the following specific matters.

Accommodation - previous and that awarded

55. The former matrimonial home, Hillgrove, had been occupied by the family for about 16 years. It is a three bedroom detached house with a study and a garden. With three bedrooms, it is not particularly large. It appears to be the sort of house that many professionals, businessmen and business executives in Hong Kong who have a comfortable lifestyle own or occupy. In that regard, it seems to me to fall short of what a family with an income of $10m, and very real expectations of doubling that in the foreseeable future, would be expected to have. So that in seeking to retain Hillgrove, the wife was not merely seeking to preserve the former lifestyle, but doing so in a respect that does not seem extravagant or in excess of what was appropriate.

56. The judge appears to have been entirely right in being most unfavourably impressed by what he found to be the wife's exaggerated claims to an emotional attachment to Hillgrove. Likewise her professed dislike of lifts, susceptibility to vertigo, and even the needs of a dog she apparently acquired for the first time then recently enough to be suspected of being simply an attempt to bolster her claims to Hillgrove. But all of that, even compounded by the condemnation the wife fully merited for her outrageous failure to disclose her disposition of the $14.5m taken from the husband's bank accounts, and her several untruths, cannot displace the requirement for the former lifestyle to be taken into account in assessing her requirements, which would of course include that for accommodation.

57. In the foregoing regard, the judge said this:

"I accept that the reasonable needs of both husband and wife are that they should each have a 3 bedroom home so that both children can find a home with either parent at any time. I am not satisfied that the wife's reasonable needs require her to have a stand alone house. She said she did not like lifts but lives happily in Hong Kong where one simply cannot avoid the use of lifts. Although she claimed that she suffered from vertigo when visiting her parents-in-law, the proposition was not put to them or to her husband and I do not accept it. She did not say that there were any special features of Hillgrove Estate that she regularly used apart from carparking which will be available at any property she might purchase.

I am satisfied that the wife's reasonable needs for accommodation can be met by the purchase of a good size, 3 bedroom flat, in a good area of Hong Kong Island. From Ex. P6, an extract of property prices from the South China Morning Post of 5 November 1997 (after the recent financial turmoil), I am satisfied that either a flat, or even a lowrise property, appropriate to the wife's reasonable needs could be purchased for $16 million (including legal costs and stamp duty)."

Plainly that would involve, particularly in Hong Kong terms, a diminution in one of the most important components of any family's lifestyle. It was not as if the wife did not ask for the house or that the husband wanted it or that it was beyond available resources. Therefore, the ordinary approach and the proper exercise of discretion, it seems to me, would be in the absence of good reason for the contrary to permit the wife to retain the house or endeavour to achieve that result. However, there is no explanation for denying the wife the matrimonial home and awarding her accommodation that involves a diminished lifestyle. All that is said is "that the wife's reasonable needs for accommodation can be met by the purchase of a good size, three bedroom flat in a good area of Hong Kong Island". It is difficult to resist the conclusion that here "reasonable needs" is not simply used as a synonym for reasonable requirements in the broad s.7(1)(a) sense, but in the actual implementation of a needs approach. What else was it that called for an apartment to be substituted for the house that was clearly a part of the family's lifestyle for 16 years? It is true that at one time in the past the husband and wife looked for a flat. But the wife says that was because she did not like the children when teenagers returning home late at night over such a distance and would be happier with something closer in. The fact is that their actual family accommodation was the house throughout. There is no suggestion of an insufficiency of resources. There surely had to be sufficient funds if the judge found it unnecessary to quantify or bring into account some of the husband's resources.

58. If the sale of Hillgrove was necessitated by a need to find the $8-9m that the judge found would become available for the husband's purchase of a home on the basis of the sale of Hillgrove at its then current valuation of $29m with provision of $16m for the wife's new home, then that would be wholly inconsistent with not quantifying the husband's expectations and trust interests because his assets were sufficient or likewise not taking into account his salary of $10m (quite apart from the expectation of soon doubling it). It seems to me, therefore, that the judge misdirected himself in the exercise of his discretion in denying the wife the matrimonial home by failing to have sufficient regard to the previous lifestyle.

59. Reference was made in that regard to Ormrod LJ's words in Preston v Preston (CA) [1982] Fam 17; 29 that "where the court is dealing with very large resources the ambit of reasonable disagreement is very wide". But although the resources here are considerable and adequate to enable Hillgrove and a fair bit more to be added to the wife's award, I doubt whether they could be said to be very large. Moreover, in my view, those words simply mean that where there are very large resources the court is afforded a very wide discretion in the allocation of the resources of the parties since those resources would accommodate a very wide range of allocation all within the luxurious or lavish lifestyle appropriate; but I do not think they mean that the discretion could extend to allocation which denied one party of the former lifestyle, which the very large resources make available to both, without some good reason. And no less, where the resources are not very large albeit sufficient for the purpose, there would have to be good reason to deny one party the former lifestyle.

60. Before I leave this matter, given the judge's commendably careful and comprehensive judgment, I would add the following.

61. The ill-advised reliance on behalf of the wife upon ridiculous grounds like the exaggerated emotional attachment, dislike of lifts, vertigo, and her new dog's needs, compounded by her lies and contumacious non-disclosure, seem to me to have diverted the judge's attention from the real position. This was that other things being equal, the wife's accommodation award (and the disposition of the matrimonial home in that context) should have been determined on the standards of the former lifestyle. The failure of her foregoing grounds did not alter that. But in rejecting those unmeritorious grounds, the judge seems to have lost sight of her right to have her accommodation requirements determined by the standards of the former lifestyle, along with the other s.7(1)(a) matters.

Club subscriptions

62. Social and sports club membership and activity were very much part of the family lifestyle. The parties were members of no less than eight expensive clubs and in addition had the use of the Aberdeen Marina Club. In providing the wife with membership of only three clubs the judge said this at p.39 of his judgment:

"The wife has already rejoined, at her own expense, the American Club. It seems very likely that she will soon be able to rejoin the Hong Kong Golf Club. ...

... It is reasonable that she should be able to continue to attend the Jockey Club which she can do as a Racing Member if she can get the necessary signatures of ...

I am satisfied that her reasonable needs in respect of entertainment and the continuation of her golfing activities will be met by her membership of these three clubs. ...

Any further club memberships are simply excessive and go beyond reasonable needs."

Again, it seems to me that a budgetary and needs approach has been adopted. And again, it seems to me that the wife's lifestyle has been diminished. An aggravation of that feature flows from the consideration that following the break-up of the marriage, she will be very much more dependent upon those amenities given the loss of her husband's social circle, associations and influence. If not budgetary and needs oriented, then what called for this significant diminution of a primary component of the very comfortable lifestyle found by the judge, remains unexplained.

The US properties

63. The judge permitted the wife to purchase out of her award the American properties. However, his judgment clearly reveals a recognition of the family lifestyle involving visits to and accommodation in Los Angeles. Addressing the wife's Duxbury calculation in the context of travel the judge said:

"I am satisfied that the wife should be able to travel to the United States twice a year. Her parents live part of the year there and she has a number of family members there, and Brian [the son] is there at university."

With reference to motor vehicles, he added:

"The wife will have, as a result of the orders I make, one motor vehicle in Hong Kong and two in Los Angeles. Her reasonable needs require only one car in each place."

But with reference to the US properties, he said:

"The wife wishes to keep these. By so doing she will gain the benefit of any increase in their value and the rental once the mortgage on 2720 Roscomere Road is cleared. Thus, if it is necessary for her to contribute to them to keep them, she must do so from her own resources. I make no allowance."

And at p.27 he had said:

"The wife's obligations are only to herself, but she wishes to be able to provide a home for both children should they wish to live with her while they are in education. I find that to be reasonable, as I have no doubt that her children are important to her. She wishes to be able to visit Brian in California on a regular basis while he remains at university there. She also wishes to be able to visit her family, a number of whom live in California."

Despite all of that, and notwithstanding that it disclosed accommodation in Los Angeles as an important component of the former lifestyle, no provision was made for such accommodation although the wife was allocated the two cars (why two is not clear, but obviously the husband would not in future require either, and one may have been for Brian) and provision for two annual air passages to California. It is again difficult to resist, in relation to accommodation in Los Angeles, the inference of a budgetary or needs approach and a disregard for the former lifestyle.

Jewellery

64. The provision of $3,500 per month, i.e. $42,000 per annum for expenditure on jewellery, appears to be unduly modest for a family with so large an income. Given that the wife was even more modest in her previous purchases of jewellery, this would not of itself be significant. What is significant is the judge's approach to this item. What he said was:

"Her reasonable needs would be met by having a sum of $42,000 a year to spend on jewellery ($3,500 a month). To a large extent jewellery expenditure falls in the same category as gambling. It is discretionary spending and not 'needed' spending, and so if she wishes to spend more on jewellery she must do so from her own resources not her husband's."

This seems to me to be also an indication of a budgetary or needs approach.

Medical

65. Mr Scott effectively demonstrated that the medical insurance premium provision of $2,500 per month would progressively become increasingly inadequate. Miss Eu's response was that the provision made was what was claimed. The judge accordingly could not be faulted here.

The other Duxbury items

66. The consideration of these, replete with references to reasonable needs, would be expected to be similarly tainted by the same excessively budgetary and needs oriented approach and to have resulted in inadequate awards. However, I do not find myself able to reach that conclusion upon a general basis. The items concerned are entertainment, travel, gifts, motor vehicles, personal, household, food, professional services, and others (i.e. the "cushion"). As to motor vehicles, the wife's award was over generous, although the adequacy of the replacement and maintenance provision was questioned not entirely without cause. On the other hand, the cushion of only $1,500 per month in the context of a monthly award of $100,000 and the particular circumstances is so small as to be plainly wrong.

67. The wife's claims in respect of the remaining items can be seen to rest to an unsustainable extent upon the exaggeration and lack of proof or reasonable basis that the judge identified. The wife's increased second bid for $218,551 per month can likewise be seen to be exaggerated grossly in many respects but was yet further inflated to $235,930 in the final submission. In the result, it seems to me that the discretionary awards in respect of these remaining items cannot be regarded as flawed in the way I have found the awards for some of the specific items already addressed, to be apparently flawed. Nor in my view are they beyond the generous ambit of reasonable disagreement.

Legal costs

68. The wife's costs, we are told, have so far amounted to $6-7m. If that should be thought unreasonably high, the husband's costs are said to be $9m. Moreover, it is the wife who has already had an uphill, expensive task in ascertaining the extent of the husband's expectations and trust interests. Indeed, she was driven to summoning the husband's father and mother inter alia for that purpose, ill-advisedly, with the damaging result that not unnaturally ensued.

69. Mr Scott submits that the wife's costs will take so sizeable a bite out of her award as to materially exacerbate its already apparent inadequacy to meet her reasonable requirements. In that regard, we are also told that the wife has agreed to pay the costs below, which include those of an incredible 30-day hearing. He submits in effect that the wife's award should be appropriately increased.

70. That submission would, I think, be well founded where a wife has been driven to legal action and has not incurred unreasonable or unnecessary costs. But I have to say that the authorities cited, which I observe do not bind this Court, seem generally to be against it, even if largely grounded upon the difficulties of implementing the concept. In any case, it may well be that the wife's agreement to pay the costs below resulted from a Calderbank offer by the husband; we were not informed. A similar submission was made in B v B (1982) (CA)3 FLR 298; 304E; in rejecting it Ormrod LJ in the materially similar circumstances there said this:

"... to reduce the lump sum to take account of the liability for costs would be to enable the party on whom the claim is made to ignore the effect of Calderbank v Calderbank with impurity."

That seems to me to be right, and in the end I am not persuaded that it would be right to intervene to make provision for the heavy costs expenditure the wife has incurred and will yet incur.

71. Conclusions

72. As I have already said, it seems to me that the award for accommodation is flawed in the ways specified - in principle for failing to have due regard to the previous lifestyle and also in all the circumstances as being beyond the generous ambit of reasonable disagreement. Notwithstanding that this is a relatively free standing item, it does have a very significant effect on the total award. The additional $13m by which the award of the matrimonial home to the wife would exceed the total sum in effect given to her, approximately $40m, would be an increase of almost 35%.

73. It does not seem to me that an increase of this proportion could be made without reviewing the entire award. That conclusion would be compounded by any increase in the two Duxbury calculation items that, it seems to me, can be seen to suffer from an excessively budgetary or needs approach and a disregard for the previous lifestyle, i.e. club subscriptions and accommodation in Los Angles (no provision having been made for the latter). It is not so clear, however, that these items are beyond the general ambit of reasonable disagreement, a not unimportant consideration if this Court had to reassess those items.

74. In addressing the foregoing considerations, it seems to me that I have also to have due regard to the conclusions of Liu and Leong JJA, whose judgments I have seen in draft. Moreover, not to be overlooked is the huge drop in the Hong Kong property market since the beginning of 1998, which is notorious and was mentioned in the course of the hearing before this Court. The value of Hillgrove may well have dropped below one half of the $29m agreed at the trial below. That would be less that the $16m award the wife received.

75. The implications of the foregoing considerations are fundamental and far-reaching. Besides, the wife may no longer want Hillgrove without a substantial increase in the remainder of her award. She may even be able to purchase Hillgrove on acceptable terms. Further proceedings are wellnigh unthinkable given the 30-day hearing below. It does not seem to me that the wife is likely to obtain a significantly larger award on the other Duxbury items (apart from the "cushion" to which I shall come). And, finally, there are the results of the wife's non-disclosure, that seem to me also to bear upon the proper and just conclusion I should reach. On the basis that the entire award would have to be reassessed, the implications of the non-disclosure would also have to be reassessed.

76. Turning to that matter, notwithstanding the critical view the judge took of her conduct, he drew no adverse inferences against the wife for her sustained non-disclosure. It is not in dispute that he would have been entitled to do so upon the authorities, some of which he referred to in his judgment. He only attributed to her what the evidence established she had taken out of the husband's bank accounts, and even from that he made certain deductions. The proper inferences to be drawn, in my view, in the present case must be related to the purpose of the disclosure which the wife persisted in refusing to make. The disclosure would have gone to establishing her resources. Therefore, it would have been open to the judge to make reasonable inferences against her as to the amounts she should have disclosed. Equally, it seems to me that the court would be entitled to have regard to the considerations that the wife ought not to be permitted to benefit from breach of her duty to make disclosure and likewise that the respondent should not be made to bear the consequences of her non-disclosure. Approaching the matter in that light, it seems to me that it is reasonable to infer that the wife would not have persisted in her non-disclosure after the husband's accountants had identified withdrawals totalling over $15m, unless such disclosure would have revealed a sufficiency beyond that amount to warrant her extreme conduct.

77. This brings me to the only item that it seems to me is free from the foregoing complications, the "cushion" which I have already mentioned is clearly so inadequate as to be plainly wrong. Although I would, for my part, have been inclined to increase it by somewhat more, I agree with Liu and Leong JJA that it should be increased by $2.6m. In doing so, I take into account the $4m in the wife's bank accounts that the judge, it appears to me, overlooked. Also the gains that she must be presumed to have made upon the $14.5m that she had possession of for the three years prior to trial, which I would put conservatively at $2m at least. Furthermore, the judge himself in his calculations rounded up his Duxbury monthly total from $96,300 to $100,000, and the Duxbury capitalisation of that monthly amount from $18.6m to $20m. In aggregate all that seems to me to provide an adequate cushion in the sense contemplated in Besterman v Grusin [1984] Ch 458, albeit in a different context. In addition, it seems to me to provide also for any other minor or increased provision the judge should perhaps have made, e.g. for club subscriptions and for accommodation in the US during the two annual visits that the judge provided for in other respects. In taking that broad view, I have also discounted the $1.2m that the judge wrongly disallowed the wife in respect of the maintenance for the year preceding the interim maintenance order made by Hartmann J.

78. I would accordingly allow the appeal to the extent that the $20m for which the wife was given credit be increased to $22.6m to reflect the increase to the Besterman cushion of $2.6m. Accordingly, the sum of $300,000 ordered by the judge to be paid to the wife by the husband should be increased to $2.9m.

79. As to costs, although the wife has succeeded only to a very minor extent, given particularly the merit I have found in the wife's submissions on the awards as to accommodation and two of the Duxbury calculation items, and the increase of $2.6m in her lump sum award, I would order nisi that there be no order as to the costs of the appeal.

Liu, JA:

80. I am in agreement with the final conclusion of the Vice-President. I wish to state briefly my views on a number of issues.

81. In broad principle, the available resources would have to be first identified and quantified before an assessment of the wife's "reasonable requirements" is attempted. But this sequence may be adjusted with the consent or at the invitation of the parties provided that the Family Court takes into consideration globally all the matters in s. 7(1) of the Matrimonial Proceedings and Property Ordinance. Evidently, the circumstances of the case may, at times, also warrant a departure from the usual sequence of approach. For the reasons I am about to give, the attempted computation regarding the wife's "reasonable requirements" cannot be said to be unsound.

82. There is no real difference between "needs" and "reasonable requirements". It is largely a matter of semantics. The terms seemed to have been used interchangeably by the Deputy Judge in his judgment. After all, "needs" is defined as equivalent to "reasonable requirements" in Dart v. Dart, [1996] 2 FLR 286 at p. 296 D/E, per Thorpe LJ. In fact, the Lord Justice understood "reasonable requirements" as needs "founded upon homes, children and lifestyle". Dart v. Dart, supra. p. 286 H and p. 297 A/B. In C v. C, [1990] 2 HKLR 183 at p. 186 H/I, Hunter, JA observed that the term "reasonable requirements" was simply a convenient paraphrase of the effects of s. 7(1). This appeal is obviously not to be decided on semantics. Deputy Judge Saunders clearly used "needs" and "reasonable requirements" interchangeably in his overall consideration of the matters set out in s. 7(1)(a) to (g). The Deputy Judge correctly applied s. 7(1) and dealt with the matters therein seriatim. The Duxbury calculation was relied upon by the Deputy Judge only as an aid.

83. The parties presented their respective cases on a "budgetary" approach for the consideration of the Family Court. The Deputy Judge's analysis of the evidence was detailed as was his treatment of counsel's submissions, both with an eye on all these s. 7(1) matters. He also kept in focus the family assets and matters he could properly have regard to. In that frame of mind, the Deputy Judge acceded to the joint invitation of the parties to arbitrate in a "budgetary" approach. The parties must have themselves regarded the "budgetary" approach as a proper one and one consistent with s. 7(1). From the claim of monthly expenses submitted by the wife, the Deputy Judge returned a figure of $96,300 (say $100,000). Once the quantum was fixed at $96,300 per month, from a practical point of view it was unnecessary to call into question the surplus resources together with matters he could have regard to. Duxbury calculation yielded $18.6 m which was rounded up to $20 m for the award.

84. In Bellenden (formerly Satterthwaite) v. Satterthwait, [1948] 1 AER 343 at p. 345 A-D. Esquith, LJ said this:

"In the present case, it is further contended that no reasonable tribunal, acting on the evidence in the present case, could properly award so low of figure as was here awarded, and that the order was manifestly and frequently unjust and cannot stand."

"It is important to note what must be established under this head. It is, of course not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with judicial discretion, and it is the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an apparent body is entitled to interfere ........ It is sufficient for the present purpose to say that it was sifted and considered with elaborate care by the registrar and the judge and that I cannot persuade myself that the conclusion they have both reached, in a matter in which more conclusions than one were possible, was wrong, let alone so manifestly wrong as to attract the operation of principle to which I have referred." (Emphasis supplied)

85. This is decidedly a complex case under s. 7(1) against a background of elaborate family settlement and trusts to which the judge had regard. It was a 30-day trial with bundles running to some 20 volumes. The wife gave evidence for 10 days and the husband 4. Extensive experts' evidence was received. Witness evaluation was further burdened by the discredited credibility of the wife. In the factual matrix, there is every good reason for viewing the decision of the Deputy Judge on these involved issues with benevolence. His judgment, read in its proper context, could not be criticised for failing to identify for quantification resources in terms of family assets and matters which he had regard to. In particular, the Deputy Judge envisaged a possible contribution from Waltly No.1 Trust to the husband's acquisition of accommodation. I am not persuaded that this court can interfere with the amount quantified by the Deputy Judge.

86. As to the matrimonial home in Chung Hom Kok, the lifestyle of the parties was not lavish. They entertained no houseguests. They kept one maid. They had, at one time, searched for accommodation closer to town. Personal expenditure of the husband could only be said to be modest. The judge was not impressed by the wife's alleged affection for the newly acquired dog, her so-called emotional attachment to the matrimonial home or her alleged vertigo in high-rise accommodation. The Deputy Judge found that a $16 m flat would cater for all the wife's requirements. The conclusion of the Deputy Judge was arrived at on his overall appraisal of the wife's reasonable requirements in the context of s. 7(1). It is acknowledged that another legitimate decision might have been made, but the view taken by the Deputy Judge does not exceed "the generous ambit within which reasonable disagreement is possible". His conclusion cannot be justly flawed.

87. The final matter on which I need venture to make an observation or two is the question of "cushion". The judge said: "A small sum by way of a cushion is sought. $1,500 a month is reasonable." (Emphasis supplied). There were three figures in the wife's claim at different stages referrable to "cushion" or close to $1,500 viz $1,433, $2,000 and $15,000. It is unlikely that the Deputy Judge interfered with $1,433 or $2,000. It would not be entirely a matter of speculation to suggest that the Deputy Judge might have misread the figure of $15,000 "sought by way of cushion" as a mere $1,500, otherwise he would not have described the sum so sought as "a small sum". $15,000 is no mean amount.

88. To examine the matter more closely, the judge would seem to be plainly wrong in giving only $1,500 a month as a cushion for a $20 m award linked to the Duxbury calculation of $18.6 m for $100,000 ($96,300) a month. The final claim of the wife stood at $235,930 per month. $96,300 was assessed. The reduction was more than half. $15,000 was 7 1/2% of $200,000 and about 6.4% of her original claim at $235,930. The list of itemised expenditure was long, and on a tighter reduced budget there was all the more reason for providing a generous cushion. $15,000 a month is just 15% of $100,000 ($96,300) a month, and 15% would seem to be a realistic safety margin for the level of the wife's social activities. $1,500 per month would be a meagre 1.5%. 1.5% cannot be a genuine percentage for cushioning. The other features which are regarded by counsel for the wife as being capable of fortifying the "cushion" were just estimates and they were not taken by the Deputy Judge as fortification of the "cushion". The trivial amount of $1,500 a month is too low a figure which no reasonable tribunal would have awarded on the evidence of this case. In reality, $1,500 per month or 1.5% is no "cushion" and the Deputy Judge is clearly wrong. In my view, $15,000 per month should have been accepted as a reasonable cushion. The judge gave credit for $1,500, and of the $15,000 per month the balance of $13,500 would have to be accounted for. Given the Duxbury calculation in this case, $13,500 would yield a capitalised sum of $2.516 m. I would agree to the slightly higher figure of $2.6 m.

89. I, too, would also allow the appeal to the extent indicated in the judgment of the Vice-President with the order nisi for costs as my Lord Nazareth has proposed.

Leong, J.A.:

90. The starting point is whether the deputy judge was wrong in principle or his assessment is plainly wrong. The deputy judge in the beginning of his judgment referred to the court's duty to consider the matters under s.7(1) of the MPPO and to the applicable principles inC & C [1990] 2 HKLR 183. He stated that these were the principles he would apply in determining the appellant's reasonable requirements. He also referred to Duxburry calculation and bore in mind that the figures were not absolute. In the course of coming to his conclusion on the lump sum, he had regard to the various factors (a) to (g) in s.7(1) separately although not necessarily in that order. Thus, he was aware of his duty and the proper approach and he cannot be said to have applied the wrong principle.

91. The appellant says that although the judge was aware of the relevant principles, he applied them wrongly. The main complaint is that the judge did not sufficiently consider the husband's income and resources and that the judge concentrated on the appellant's "routine expenditure" in his assessment of the appellant's reasonable requirements. That was, so counsel submits, in fact a "needs" or "budgetary" approach which was rejected in O'D v. O'D, Corrick v. Corrick (No. 2) [1995] 2 FLR. 490 and later in Dart v. Dart [1996] 2 FLR 286. It is submitted that the lump sum awarded was not sufficient to enable the appellant to enjoy the same lifestyle as she had been enjoying before the break up of the marriage, especially when no provision had been made for the appellant "to meet her occasional expenditure over and above her reasonable routine need". In addition, the appellant's costs liabilities had not been taken into account in assessing the award.

92. In discharging his first task to ascertain and value the total assets, the judge relied on P1 the list of assets produced by the husband. This was not disputed by the appellant. The judge found the assets not in dispute as $66 millions, and these included $4.08 million in the appellant's bank accounts. He then concluded that the husband had available to him the following assets which he could take into account for the purpose of s.7(1)(a):

(1) Waltly No.1 Trust valued at $24.5 million;

(2) 100 shares in the hospital which the husband held to qualify as a director of the hospital;

(3) inheritance on the death of his parents which included those from a numbered account in the Twinbrook Trust valued at $7 million, 1/3 of 5300 shares in the hospital which the judge gave it a round figure value of $0.3 million and 1/3 share in the Twinbrook Apartments valued at $20 million. These added up to $27.3 million.

93. The value of the shares in the hospital were disputed. Because these shares were tied to charity, there was no open market for them and that presented difficulty in valuation. The judge considered he needs not resolve their value because whether they were valued on net asset basis or on dividend basis, any award he ultimately made would not be affected by the higher or the lower value of these shares since there were sufficient funds to cope. The judge in any event put the husband's share of the 5300 shares as $0.3 million.

94. The judge also recognized that the husband had an income of $8 million a year from his practice as a ophthalmologist and $2 million a year from his post as deputy medical superintendent of the hospital and that he would succeed his father as general manager of the hospital in the foreseeable future which would entail an income of $14 million a year. In the event of the husband taking over his father's seat, the husband would have an income in the region of $20 million or a lesser amount if he were required as a result to reduce his practice as a ophthalmologist.

95. Thus judge had taken into account all the husband's resources and income presently available or in expectation as the judge was obliged to do and no complaint can be made of his performance in the first stage of this exercise.

96. The judge had in mind a total of at least $90 million in family assets and $27.3 million potential assets of the husband who had an income of $10 million going up to $20 million a year in the foreseeable future from which he could determine what lump sum he should make for the appellant and what accommodation he should decide for the appellant in exercise of his discretion.

97. The judge came to a sum of $96,300 per month to cover the appellant's monthly expenditures such as travel, motor vehicles, person expenses, household expenses, medical insurance etc. A sum of $1500 was also included which the judge described as cushion. The sum of $96,300 per month was rounded up to $100,000 i.e. $3,700 more than what the judge estimated as being required by the appellant and on reaching the lump sum required to produce that monthly income, it was again increased by $1.4 million, resulting in a lump sum of $20 million. This was exclusive of the value of accommodation which was separately awarded. The judge considered this would enable the appellant to have a very comfortable life for the remainder of her natural life. I should mention, however, that the cushioning sum award by the judge occupied only a minute percentage of the monthly award and it was thus but a nominal sum. It is submitted for the appellant that the income produced by the lump sum only covered the appellant's basic needs and the judge was wrong not to have sufficient regard to the appellant's lifestyle before the break up.

98. The assessment by the judge as the appellant's reasonable requirements was reached after the judge had considered the evidence as to the appellant's lifestyle prior to the break up. The judge took very a dim view of the appellant's credibility and did not accept her evidence on lifestyle. He reached the sum of 20 million on the evidence he accepted, which was mainly evidence well documented, "taking a broad view of the lifestyle to which the appellant was accustomed and all the circumstances of the case." Thus apart from the cushion provision, it is difficult to find anything which would indicate that the judge was plainly wrong in the exercise of his discretion in adopting the Duxbury calculation.

99. The nominal sum of $1,500 was intended by the judge to be a cushion but obviously this sum offered little to the appellant to meet her occasional needs, even on the lifestyle the judge found the appellant was accustomed to. A nominal sum would not suffice. Plainly, having regard to the resources and income of the husband, this could not have been right. The appellant claimed a sum of $15,000. This is not unreasonable having regard to all the exigencies in life. The judge's award should be varied to the extent that the lump sum is increased by an amount that would produce that monthly sum less the sum of $1500 already awarded.

100. There is no dispute that the appellant has costs liabilities in the region of $6 - 7 million and the husband's bill runs to $9 million for which the appellant could be made liable. That being the case, the lump sum awarded could be substantially eroded by her costs liabilities leaving her with insufficient funds to maintain her lifestyle. However, it is not known how much costs she had paid and from what source. Her persistent refusal to make disclosure of her resources had made it difficult to ascertain if she would be able to meet her costs liabilities from sources other than the lump sum. It has not been demonstrated that the lump sum would be so eroded by her costs liabilities that she would be left with a meaningless award. Both H. v. H. [1997] 2 FLR 57 and Dart v. Dart [1996] 2 FLR 286 do not make it a rule that there should be costs consideration when making a lump sum award. The relevant part of the head note in H. v. H. states this:

"The case illustrated the difficulty of resolving ancillary relief cases where the costs themselves had become so large a sum in proportion to the available assets and must ultimately be paid out of the same assets, and where a fair resolution should be easy were it not for the fact that the burden of costs was likely to be penurious to one or other or both parties. However, having no knowledge of what, if any, Calderbank offers had been made, the proper course in accordance with current practice was for the court to make an order in the light of the evidence undeflected by costs considerations."

101. In Dart v. Dart, the appellant had prolonged the litigation unnecessary and caused the case to be conducted in an extravagant way to the husband's prejudice. Thorpe, L.J. held that in such circumstances it was just that the appellant's entitlement be largely curtailed by the costs liabilities. Thus Dart v. Dart was decided on its special facts.

102. In conclusion, the judge cannot be faulted that he did not have the appellant's costs liabilities, if any, in mind when assessing the award.

103. On accommodation, it is true that the appellant had been for some 18 years enjoying accommodation in the spacious environments of a house with 3 bed rooms and a study and a garden. The appellant put before the judge her claim to the house partly on the basis of her emotional attachment. However, there was evidence that prior to the break up the appellant and the husband had been looking for alternative accommodation in the form of a flat probably prompted by the inconvenience of the location of the house. Be that as it may, the judge appeared to have rejected the appellant's emotional attachment contention and considered that after her divorce and thus being single, she would be suitably accommodated in a flat. He awarded a sum of $16 million and would be sufficient to secure a 3 bed room flat of a reasonable size in a good district in Hong Kong. The husband might have resources to purchase accommodation without recourse to the proceeds of sale of Hillgrove but that does not mean that a 3 bed room flat at $16 million was something less than the appellant's reasonable requirements. The judge's exercise of discretion in this respect, however one looks at it, cannot be regarded as plainly wrong.

104. In the circumstances, I would also allow the appeal to the extent that the lump sum should be varied by the addition of $2.6 million as suggested by my Lord, Liu J.A.

Nazareth, V.-P.:

105. The appeal is allowed to the extent mentioned. There will be an order increasing the sum of $300,000 ordered to be paid to the wife to $2.9m, and a costs order nisi that there be no order as to the costs of the appeal.