HCC v. LTH

FCMC 13164 /2024

[2026] HKFC 43

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13164 OF 2024

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RULING
MASTER’S APPEAL
(Interim Maintenance)
(Back-dating & Costs)

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1.  In this proceeding, the petitioner is the wife and the respondent is the husband.

2.  For the ease of reference, in this Ruling, I shall refer to the petitioner as “W” and the respondent as “H”.

3.  This case came before me in the form of an appeal against a Master’s Orders dated 20 November 2025 enjoining H to pay interim maintenance for the benefit of (1) W and (2) their child of the family.

4.  Dissatisfied with the orders, H lodged an appeal on 4 December 2025.

5.  The factual background, in brief, is that W is 30 years old and H is 31. They were married in July 2021; and a son, the only child of the family, was born in January 2022. He is now 4 years old. I shall refer to the son as “TC”. W was a housewife during the marriage.

6.  It seems it is not in dispute that W moved out the former matrimonial home with TC in about December 2024. The mother and the son are living in a leased apartment.

7.  On 11 December 2024, W petitioned for divorce on the ground of H’s unreasonable behaviour.

8.  On 16 May 2025, W took out an application seeking interim maintenance for herself under section 3 of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”) and for TC under section 5 of MPPO.

9.  The application came before the Master on 20 November 2025 for substantive argument after which the Master made the orders that H is to pay W a monthly sum of $24,750 for the benefit of TC and a monthly sum of $13,750 for the benefit of W. These two sums of interim maintenance are to be backdated to 14 May 2025; hence, a sum of $269,500 is payable.

10.  As said, H lodged an appeal against the Master’s orders; together with his appeal were 2 summonses taken out by H on 4 December 2025 and 3 February 2026 respectively for leave to adduce further evidence under the Ladd v Marshall rule (“the 2 Summonses”) in support of his appeal.

The Compromise

11.  At the middle of the hearing, the parties were able to compromise and came to a partial settlement. In essence, the parties agreed that H’s appeal should be allowed in part and proposed the following terms be made orders of the court:

1.  The order dated 20 November 2025 is varied as follows:

(i)  H do pay W interim maintenance for the benefit of the child of the family in the sum of $19,250 per month, the first payment to be made on or before 14 February 2026, until further order of the court.

(ii)  Paragraph 2 of the order dated 20 November 2025 (ie the interim maintenance in favour of W) is set aside.

12.  I had already read the parties’ affirmations and counsel’s submissions, I took the view that parties had come to a sensible decision that was to their benefit in terms of time and costs. They should focus their attention on dealing with the final ancillary relief matters instead on spending time and costs on this satellite litigation. Further, the figure agreed at by the parties was, in my view, a reasonable and realistic one and should be able to meet the reasonable and immediate financial needs of TC. The settlement was therefore approved.

13.  Leave was also granted on 2 March 2026, by consent, for H to have the 2 Summonses withdrawn.

Outstanding Matters

14.  There remain, however, two rather straightforward outstanding matters that require determination by the court. The first is if the interim maintenance for TC should be back-dated to the date of application, ie 14 May 2025. The other issue is the costs of the appeal.

Master’s Appeal

15.  Master’s appeal before a Judge is by way of actual re-hearing, and the Judge treats the matter as though it came before him for the first time: Order 58, rule 1, RHC. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion: see Hong Kong Civil Procedure (2025) at §58/1/2, quoting Evans v. Bartlam [1937] AC 473; Cooper v. Cooper [1936] W.N. 205; and Cremin v. Barjack Properties Ltd (1985) 273 E.G. 299, CA.

Back-dating

16.  W’s stance is the Master’s order regarding backdating should stand. As for H, his stance is the interim maintenance should only start to be payable as from the date ordered by the Master, ie as from 14 November 2025. Hence, there is a difference of 6 months (from 14 May 2025 to 14 October 2025) or, put it in monetary term, a sum of $115,500 ($19,250 X 6 months).

17.  Whether the interim maintenance should be back-dated is a matter of discretion of the court, having regard to the matters set out in section 7(2) of MPPO (see DX v LN (Maintenance Pending Suit & Costs Provision), FCMC 7870/2014, (date of judgment: 21 September 2015) at [28] and ultimately the issue is guided by “reasonableness” which is synonymous with “fairness”: see HJFG v KCY, [2012] 1 HKLRD95, at [28].

18.  When considering this matter, I bear in mind that the parties came to a compromise in the middle of the hearing when I had not heard Ms Cheung’s submissions in full and that it was not appropriate nor was it possible for the court to conduct a detailed investigation into the finances of the parties. That said, it does not mean there is nothing before me to do “fairness” to the parties. On this theme, I am sure there are two important factors that I must give regard to. The first is H was the breadwinner of the family during the relationship and the second is TC is his son, to whom H owes a responsibility to maintain at all times. For these reasons, I am driven to the conclusion that the monthly maintenance should be back-dated as ordered by the Master.

Costs of the Appeal

19.  I now turn to costs of the appeal.

20.  The relevant provision is in Order 62, rule 3(2A), Rules of the High Court. It states,

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may, subject to this Order, order the costs to follow the event or make such other order as it sees fit.”

21.  In the exercise of its discretion in civil cases including family cases, the court will have to take into account, where appropriate in the circumstances, the special matters set out in Order 62, rule 5 of the Rules of the High Court.

22.  As to the approach to be taken, Hartmann J (as he then was) in F v F (No 2) [2003] 3 HKLRD 976 reiterated, in para 22, “the long-established principle that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression”.

23.  W says “no order as to costs” is appropriate, or, alternatively she is agreeable to “costs in the cause of the ancillary relief”. H insists on seeking costs of the appeal against W. The costs of the 2 Summonses are part and partial of the costs of appeal.

24.  I believe the following considerations are relevant to the issue of costs.

25.  At the hearing, H’s open offer was $14,700 for TC only. He declined to make any offer in favour of W whom he considered should have the financial means to maintain herself. As for W, she maintained that the Master’s Order should continue to stand, ie $24,750 for TC and $13,750 for herself.

26.  In considering the costs issue in this particular case, I remind myself of the caution given by Mostyn QC (as the deputy judge of the English High Court) in GW v RW (Financial Provision: Departure From Equality) [2003] 2 FLR 108 about “Calderbank offer”. I am aware we do not have a “Calderbank offer” here. Yet, I think the same rationale applies. Hence, I should refrain from comparing whose figure for TC is closer to the figure eventually agreed.

27.  There is a forceful argument from H, supported by documentary evidence, that W failed to disclose in her Form E dated 22 April 2025 an account maintained with the Hang Seng Bank ending with account no 888 (“the 888 Account”); and there is undisputed evidence that this account had as much as $1.627 million in December 2024. W conceded the existence of this account when being so asked by H in his Questionnaire dated 8 July 2025. In response, W explained the monies in this account belonged to her mother and this account had been cancelled in December 2024. Be that as it may, Ms Cheung conceded that,

1.  at all the material times W was legally represented;

2.  W should have disclosed this account in her Form E even if it had been cancelled as claimed;

3.  for the reason that W was the account holder, prima facie, she was the beneficial owner of the money in the account;

4.  she had the burden of proof that she was not the owner;

5.  in this regard, no evidence having been produced in support of W’s allegation; and

6.  despite the lapse of time, not a single bank statement had ever been produced by W.

28.  There is another issue if W has another account ending with number “668” (“the 668 Account”) about which H, by one of the 2 Summonses, sought leave to adduce as new evidence. In response, W explained that the 668 Account was one of the integrated accounts under the 888 Account and the monies there overlapped with those in the 888 Account. For the purpose of this Ruling and at this stage, I consider it is not necessary to deal with this matter further.

29.  With the concessions from Ms Cheung, it is quite clear that, as far as the matter presently stands, W’s allegation that the 888 Account was not hers is a mere say-so. It cannot be emphasized enough that the duty to make full and frank disclosure applies with equal force to a recipient or a payee. Time and again, I have seen an applicant exaggerates his or her expenses and living standard or conceals some financial resources when seeking maintenance pending suit. While I have no cognizance of the discussions between the parties leading to the compromise, what happened was the compromise was reached after Ms Cheung had made the above concessions. I am quite sure that was the reason for W’s agreement for her interim maintenance to be set aside entirely. On that view, H is the winning party.

30.  At the same time, it should not be forgotten that W is successful in having the interim maintenance in favour of TC being back-dated.

31.  On the above analysis, the overall impression is that both parties have been partially successful. I therefore come to a view that the proper costs order is “no order as to costs”, inclusive of the costs before the Master and the 2 Summonses, with counsel certificate.