RODERICK WARREN ROOKE v. KERRYE LOUISE ROOKE

IN THE COURT OF APPEAL

1995, No. 246
(Civil)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. This is an appeal from an order made by His Honour Judge Gill when he ordered a variation to the consent order which provided for maintenance payments when the parties were divorced in 1984. In that order the appellant (the husband) was required to pay the respondent (the wife) a lump sum of ￡5000 and ￡1,600 every month. It is common ground that the actual amount agreed to be paid was HK$6,000 per month.

2. The application for variation of the order was made pursuant to Section 11(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192.

3. His Honour Judge Gill has outlined in some detail all of the relevant circumstances both at the time when the original order was made in December 1984 and at the present time.

4. Very briefly the husband and the wife both came from Western Australia and are now in their mid-fifties. They came to Hong Kong shortly after their marriage in 1964. The husband obtained employment with RTHK on expatriate terms which included a number of 'fringe" benefits such as subsidised accommodation.

5. There were two children of the marriage both of whom are now grown up and independent financially.

6. The overwhelming feature of this application is that the wife suffers from an incurable disorder of her blood which necessitates continuing intensive care of a highly specialised nature. One consequence of this condition is that the wife is quite unable to obtain full time gainful employment and is dependent upon the husband for her financial support.

7. Another consequence of this illness is that she has to live somewhere where virtually free specialist medical services are available.

8. When the original order was made in 1984 it was contemplated that the wife and the children would reside in the UK where the wife could avail herself of specialist medical services under the National Health Service.

9. The wife has given evidence that her condition necessitates frequent blood transfusions and that for the reasons she gave it was necessary for her to attend at three different hospitals to obtain treatment.

10. It was partly as a result of this that she was advised to obtain treatment in Geneva, Switzerland where all of the required transfusions could be administered in the same hospital. She accepted this advice and has for a number of years been residing in the vicinity of Geneva. She claims to have encountered increasing difficulty in supporting herself on the maintenance provided by the husband. Indeed she has only been able to do so by staying with friends and receiving financial support from her daughter Karen.

11. She now wishes to set up house there in a modest fashion. She gave evidence concerning her anticipated expenditure which is estimated would amount to HK$32,000 per month. One of the complaints which was made by the wife was that the husband was often tardy in meeting his financial commitments to her and she sought an order from the judge that some form of security should be ordered so that she could be safeguarded from the consequences of late payments.

12. In 1984 the husband was still working for RTHK. In 1989 the husband resigned from this employment and since then his income has mainly derived from free lance work which is less lucrative than his previous employment.

13. The situation concerning capital which has been available to him has been greatly complicated by his marriage to another lady in 1987. This lady was referred to in the judgment as Miss Lauder.

14. The husband and Miss Lauder had been cohabiting for some time before their marriage and the husband claims that to a large extent his financial resources and those of Miss Lauder have become intermingled.

15. In 1985 the husband and Miss Lauder purchased a flat for HK$750,000. According to the husband Miss Lauder paid the deposit of 10% and the balance of the purchase price was made up by the husband obtaining a loan under the Hong Kong Government Home Finance Scheme. This flat was sold in 1991 for HK$4.25 million.

16. There was evidence that some of the proceeds of sale were used to purchase property in Spain and some was used by Miss Lauder to finance an antique business in Macau.

17. In addition to this HK$500,000 was spent in an abortive business venture by the husband which it had been hoped would generate an income for him.

18. So far as capital is concerned the husband stated that he had access to HK$1.75 million but that some of this had been pledged to secure a loan which had been obtained by their son Torgeir.

19. The husband and Miss Lauder had bought a derelict cottage on Coloane and made it habitable. They split their time between Macau and Hong Kong. The antique business was not yet producing much in the way of income and its future prospects were limited as a consequence of the impending transfer of sovereignty.

20. So far as income was concerned the husband gave evidence that his income for the proceeding year had been approximately HK$27,000 per month but he emphasized its fluctuating nature.

21. In considering the immediate financial situation of the husband it was necessary to take cognisance of the fact that in an answer to Further and Better Particulars he had stated that Miss Lauder defrayed almost all the household expenses.

22. There was also evidence that the profits from the Macau antique business were sufficient to pay the rent of the flat which they rented in Hong Kong.

23. The other material factor referred to in the evidence was that Miss Lauder was now suffering from skin cancer and was receiving treatment for this.

24. On the basis of this evidence Gill DJ increased monthly payments to HK$18,000 per month and ordered that arrears of $144,000 should be payable on the 1 December 1995.

25. He also ordered that $100,000 should be set aside so as to provide a buffer which could be resorted to by the wife if the husband was in future in arrears of payments due.

26. Mr Clough for the husband contended that having regard to the overall financial situation of his client the original order should not be varied.

27. He submitted that the court should be reluctant to vary the order as it had been a consent order.

28. When Gill DJ heard the application he considered it on the terms contained in section 11 of the Matrimonial Proceedings and Property Ordinance. He was required to consider all of the matters referred to in s7 of the Ordinance. By its very nature, it was an application de novo, but of course the court would be particularly concerned to have regard to any change which had occurred in the circumstances of the parties.

29. Mr Clough argued that the order which had been made by the judge was wholly unrealistic. Although the financial circumstances of the husband had deteriorated the judge had ordered that the husband should be required to pay three times the amount which had been payable under the original order.

30. One consequence of this was that as the husband had experienced difficulty in even maintaining payments under the original order it was inevitable that the capital assets would have to be disposed of if the payments under the new order were to be maintained. Mr Clough submitted that it was wrong in principle for an order to be made the effect of which would be that the capital assets would have to be disposed of. In effect an order was being made for a further lump sum to be payable by way of instalments.

31. We reject this submission. There is nothing in s7 of the Ordinance to require the court to deal with capital and income separately. What the court is required to do is to consider all of the relevant circumstances and then make such order as is possible to meet the legitimate interests of the parties.

32. While there may well be some merit in the contention that the husband's income is less than it was in 1984 it is transparently clear that his overall financial situation is significantly better than it was. As indicated earlier he now has access to fairly substantial capital resources.

33. Mr Clough submitted that the husband should not be required to dispose of capital available to him. If the assets had to be sold the husband would have no savings left to him when he retired.

34. He further argued that it was particularly unjust to make an order whereby capital would have to be disposed of as Miss Lauder also had an interest in the said assets.

35. It may be the case that the husband will have to dispose of his share in capital assets but it has not been demonstrated that more than 50% of any interest would have to be liquidated to enable the husband to comply with the terms of the order.

36. For the reasons already outlined the situation was not as simple as that. Ms Alice Mok for the wife was able to illustrate that in reality the husband would have available to him an excess of something of the order of $19,000 per month. When this financial situation is weighed against the very pressing needs of the wife it is not surprising that the judge made a more generous order than he normally would.

37. The overwhelming feature of this case is the serious nature of the wife's affliction with her medical condition. The evidence concerning the wife's treatment was to an extent tentative . However there is no reason why she should not continue to be treated for her ailment in Geneva if this is at all possible. It is by no means clear that she will be able to continue with this treatment even under the terms of Gill DJ's order but at least there is a possibility that this will be practicable.

38. Even with the provision which has been ordered by the judge it may still not be possible to meet her modest aspirations. However it has to be realised that this is a situation where there is simply insufficient finance to meet all the legitimate claims of the parties. It is not possible to say in all the circumstances that the order made by the judge was excessive having regard to the very unusual features of this case.

39. So far as ground 12 of the appeal is concerned there was sufficient evidence to justify the judge making an order which would furnish to the wife a measure of security. This can be seen from the substantial arrears which the husband had allowed to accumulate. The needs of the wife are such that it was not unreasonable to make such provision.

40. In the final analysis this appeal can only succeed if the appellant can demonstrate that the judge was plainly wrong. The rationale of this is well encapsulated in the Headnote in Lau Lap Che Richard v. Wong Sut Fan Villette [1996]1 HKC 165:

"(1) An appellate court does not interfere with a judge's discretion merely because it might have taken a different view. It would interfere only if the judge's exercise of discretion was based upon a misunderstanding of the law or of the evidence before the court or if the judge's decision was plainly wrong. Hadmor Productions v Hamilton [1991] AC 220.

(2) An appellant has to discharge a heavy onus in challenging findings of fact by a judge, who made such findings on the basis of the evidence given by the parties and also after having an opportunity of seeing the parties and cautiously observing their demeanour. Hongkong and Shanghai Banking Corp v. Chan Yiu Wah [1988]1 HKLR 547."

41. What is very clear in this case is that Gill DJ gave the most painstaking care and attention to this application and was mindful of all the important considerations. It may be the case that each of us may have arrived at rather different orders. However this does not provide us with any remit which would entitle us to interfere with the judge's order. For the reasons given this appeal is dismissed. Costs will follow the event and the wife's costs will be taxed in accordance with the Legal Aid Regulations.