JHCI v. MSYI (formerly known as MSY)

FCMC 12528 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12528 OF 2011

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J U D G M E N T
(Ancillary Relief)

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Introduction

1. This judgment follows an eight day trial to determine the issue of final ancillary relief.

2. On any assessment this has been a very emotive, highly conflicted case. The cost in terms of money, time and emotional wellbeing has been enormous for both the parties themselves and for everyone else involved. The situation has recently reached a new low following allegations being made against the elder son, J who is now 14 years of age. This has led to J living separately from his father. The trial on ancillary relief was conducted on the premise that the order following relocation stood whereby the parties had joint custody with shared care of both children. I am now told that the wife presently has de facto care and control of both children. The long term situation with respect to J is not known but it is anticipated that he may in due course go to boarding school. There are no other applications presently before the court in this respect.

3. In so far as the finances are concerned everything emanates from the issue of maintenance. The wife argues that the husband has not provided her and the children with sufficient maintenance during the course of these proceedings which in turn has led to her getting into debt. Other things flow from this including the wife’s claim for so called “reimbursable expenses”. In addition both parties seek “add backs” for other items. The wife seeks significant maintenance payments for both herself and the children going forward.

4. It is clear that both parties’ positions have hardened as the litigation has progressed. The husband’s stance is that he has been paying the wife an appropriate amount of maintenance, even after she lost her job in December 2011. The husband says the wife engineered her own redundancy, something which the wife vigorously denies. The wife in turn argues that she always feared that the husband would not support what she terms “his first family”. This was why she wished, she says, to relocate to the United States where the cost of living would have been cheaper etc. The husband for his part points to the wife’s earning capacity and the fact that she has not returned to the work force, even after the relocation judgment was handed down, which was not in her favour. The distinct impression at this stage is that both parties have come so far along the litigation path that neither is able to bend, so intent are they in winning this particular battle.

5. As will be seen, having now had the opportunity to review the figures in detail, I accept the wife’s basic premise namely that it will not be possible for the husband to maintain her and the children at the level she requires. It is arguable whether or not this is the same standard of living that they enjoyed during the marriage. I should add that it is generally accepted that when a marriage breaks down that both parties standard of living will of necessity be reduced. This case is no exception, notwithstanding the fact that the husband earns a great deal of money. I should add that with a bit of compromise it seems to me that it will be possible for both parties to have a very acceptable standard of living.  

6. In addition to the issue of maintenance the court is also charged with determining the appropriate capital split in a situation where the parties have been separated for over 5 years and much of the wealth accumulated during their marriage has been spent on legal costs. 

Background  

The breakdown of the marriage and the litigation to date

7. I have set out both the background to the marriage and the background to the litigation in my judgments of the 21 November 2011 (Maintenance Pending Suit etc) and the 15 January 2013 (Relocation, Sole/Joint custody, shared care). A comprehensive summary is found in the latter, which I think it may be helpful at this juncture to repeat:-

8.  As at the 21 November 2011 I set out the background to this case in my judgment on maintenance pending suit and costs as follows:-

Background

4.  This is a fairly straightforward case on the facts that has been fuelled to a very large extent by high emotion and attendant conflict which appears to have escalated as the case has progressed.

5.  The parties married in April 1998. This was the husband’s second marriage and the wife’s first. The husband is British and the wife holds an American passport but is of Filipino decent. Unfortunately the parties were unable to have children naturally. They were subsequently very privileged to be able to adopt two children – J, a boy who is now aged 11 years old and S, a girl who is now aged 8 years. Both children attend a well known international school in Hong Kong. They are presently living with the mother. Access has been very problematic. The husband has issued a number of applications in relation to various issues pertaining to the children. The wife has also issued a summons for leave to permanently remove the children to reside in the United States. That application is likely to be heard sometime next year. There now also appears to be a dispute over custody.

6.  Both parties work in the banking sector. The husband is 41 years old. He holds a senior position with an investment bank. The wife is 49 years old. She returned to work in April 2008 after a career break during which she concentrated on looking after the children. This also coincided in part with the parties spending a period of time in Singapore following the husband’s secondment there. The wife also works for an investment bank. Both parties’ earn good salaries, but it would be fair to say that the husband earns significantly more than the wife.

7.  The parties separated in August 2009. On the 29 September 2010 the wife issued divorce proceedings based on the husband’s unreasonable behaviour. In that petition she also sought joint custody of the children with care and control to herself and reasonable access to the husband. She now states that she had not wanted a divorce and had only instituted proceedings because her lawyer at the time had advised her to do so. She says that her intention had always been to try to reconcile with the husband.  She also claims that she had not known of the husband’s new relationship at that time. On another occasion she said that she had felt pressured by the husband to issue proceedings. In any event, regardless of these assertions, the fact is that the wife issued proceedings against the husband based on fairly mild unreasonable behaviour particulars notwithstanding the fact that it was open to her to proceed on the basis of one year separation with the husband’s consent. This had been the husband’s preferred option. On the 14 October 2010 the husband filed an answer denying the allegations of unreasonable behaviour quite generally and reserving his right to apply for leave to amend the answer and to file a cross petition. Just as it had been open to the wife to proceed on the basis of one year separation with consent (or once she had learnt of the new relationship on his admitted adultery), it had also been open to the husband to simply proceed on the basis of the wife’s original petition. He chose not to do so. In any event the wife did not progress her petition. There was significant delay – some of which was justifiable and some of which was not.  On the 7 September 2011 the husband filed a subsequent petition based on two years separation. On the 23 September 2011 the wife’s original petition was dismissed and all pleading were transferred to the new proceedings.  

9.  Since then the matter has progressed under the father’s second petition. In terms of the background to the marriage I should add that both parties have lived in Hong Kong for a considerable period of time. The father moved to Hong Kong from the United Kingdom in 1995 and has remained here since, (save for a two year period from 2002 – 04 when the parties were seconded to Singapore). The father was married at that time, but that marriage faltered when his first wife chose not to join him in Hong Kong. He met the mother in Hong Kong shortly after his arrival and they began dating whilst he was still married to his first wife. That marriage was dissolved in July 1997. Prior to the divorce he and the mother began cohabiting. They were married in April 1998 in California and subsequently returned to Hong Kong. The father was 25 years old when he came to Hong Kong. He is 42 years old now. He has recently changed jobs, but continues to hold a senior position in the finance sector. He says that he wishes to continue to live and work in Hong Kong for the remainder of his career. He is settled in Hong Kong and considers it his home.

10.  The mother has also lived in Hong Kong for a considerable period of time. She was born in Manila but her family immigrated to the United States when she was 17 years old. She was studying overseas at the time. She is the eldest of 7 children. She and her family are all Roman Catholic. The mother has both an undergraduate degree and an MBA and she has lived in Hong Kong since 1992, save for the same two year stint in Singapore with the father in 2002 – 04. She also worked in the banking field but on the management side. She is a little older than the father and is now 50 years of age. She says that the parties agreed to remain in Hong Kong and to raise a family here because it was “neutral” ie it was not the United Kingdom or the United States. She says that the situation has now changed and that she now wishes to live in the United States with her extended family.

11.  It seems that both parties wanted to have children, but that the mother had difficulties conceiving leading to five rounds of IVF treatments. In the words of the mother during the trial she didn’t “just pop them out” (children) like other women and the parties subsequently decided to adopt. It seems that the father was initially more open to this idea than the mother, who was very keen to have her own biological children. In time however the mother came round to the possibility of adoption and now says that she “chose” her children. 

12.  J was born in May 2000 in Hong Kong and he was released into the parties care in August 2000. The adoption was completed in February 2001. J is of Chinese and Thai parentage. He is presently 12 years old and he attends a well known international school in Hong Kong. He suffers from Attention Deficit and Hyperactivity Disorder (ADHD) and is presently on medication which the parties originally obtained from the United States. It seems that he has recently been prescribed an alternative in Hong Kong. He is also allergic to dust and mites, although there is some dispute over the severity of this condition and the appropriate approach to it. J is presently based with his father, but he sees his mother regularly. He moved to live with his father on a “look and see basis” in January 2012, following an argument with his mother and has remained there ever since. The parties disagree about whether he still wishes to be based with his father.

13.  The parties daughter, S, was born in December 2002 in Malaysia. She was adopted by the parties when they were living in Singapore. Like J, S was released into the parties care in February 2003 whilst still a baby. According to the father S is Peranakan or Straits Chinese, which is an ethnic blend found in Malaysia, of Chinese, Malay, Arab, European and Indian heritage. S has been diagnosed with “clinical behavioural anxiety” and it has been suggested that she may also have some learning difficulties. S is currently based with her mother, but she also sees her father regularly.

14.  The children are presently together with one or other of the parents for 5 days/4 nights out of every 7 each school week save for the first weekend of every month when they are with their father for Friday and Saturday night. The school holidays are presently split between the parties.

15.  The mother took a career break while the children were small and did not work for 7 years. She resigned from her job in late 2001. J would have been approximately 18 months old at the time. S was born the following year. There is no doubt that during this period that she was the primary care taking parent. She was assisted in this role by the father and a domestic helper. In April 2008 she began working again following her introduction through a friend to a well known private bank in Hong Kong. From that point on a driver was also employed in addition to the other domestic help in the house, to assist primarily with the care of the children, which included ferrying them to and from different activities. 

  The breakdown of the marriage

16.  On the father’s account, he says that the marriage was in difficulty from about 2002, whereas the mother says that serious cracks first started to appear in 2008. In any event on the 24 August 2009 the father moved out of the matrimonial home, residing first in a serviced apartment and then moving into an apartment in Pokfulam. It seems that at first matters progressed on a fairly reasonable footing. The father continued to meet all outgoings on the former matrimonial home and he continued to see the children, although usually it seems that this was as prescribed by the mother.

17.  This all changed in November 2010 when the mother first became aware of the possibility of the father’s involvement with a third party. Up until that point it seems that the mother had been hopeful that reconciliation might be effected. The tone of the proceedings alters significantly thereafter.

18.  There are a number of themes that run through the parties’ affidavits which serve to illustrate the intensity of their conflict namely a) their continued inability to agree on the children’s access arrangements including pickups and drop offs, as evidenced by the parties e-mail exchanges and as set out in their affidavits. On occasion this has led to serious confrontations including physical altercations that have been witnessed by the children. There has been some police involvement. b) The mother’s inability to come to terms with the reality that the father has formed a new relationship with a former work colleague, Ms V and the fact that the children will inevitably come into contact with her. The mother has for example, expressed continued concerns including room sharing arrangements during holidays and c) the level of financial support that the mother has received and might expect to receive from the father going forward. The manner in which she received that support has also been the subject of intense disagreement. 

The updated situation

8. The wife is now 52 and the husband is 44 years of age. The decree absolute was eventually pronounced by agreement on the 25 November 2013. Since then the husband has remarried Ms V and they have moved into a larger apartment with her daughter I, who is now aged 6 years. As I have said until recently J was also based with them. The order stipulated that J was to stay over with his mother each Wednesday and on alternate weekends. Likewise, according to the original order S is to stay with her father each Tuesday and also on the same alternate weekends. In addition by virtue of a Ruling dated the 29 May 2014 the children’s weekend access was also varied so that it coincided with I’s weekends with the husband and Ms V. The court has been informed that J is currently living in a serviced apartment in Wanchai with his maternal Uncle. J is at present continuing to attend the same international school as before. It is anticipated that in due course that he may go to boarding school. S has just started at the N School pending a place becoming available for her at the L Centre at a senior school in the ESF. She is currently waitlisted for a place. It is acknowledged that historically both children have needed a lot of help and support.

9. The husband is currently employed in a senior position within the finance industry as a Chief Operating Officer. Ms V also works in the banking field and the wife is currently unemployed. As indicated above this has become a source of considerable friction between the parties, with each side taking increasingly more extreme positions as the litigation has progressed. It is the wife’s case that she has been unable to find suitable alternative employment in Hong Kong. The wife says that if the husband wishes her and the children to remain in Hong Kong then he should support them in a way that was comparable to their standard of living during the marriage. The husband for his part maintains that the wife has inflated her expenses and deliberately refused to find alternative employment. He is not prepared to support her at the level she requires.

The law on Ancillary Relief

10. The Court of Final Appeal’s decision in LKW v DD (FACV no 16 of 2008) 13 HKCFA 537 sets out the approach that the lower courts should now take when determining issues relating to final ancillary relief. 

11. Mr Justice Ribeiro PJ reiterates that there are four underlying principles that should guide ancillary relief proceedings namely fairness, the absence of discrimination, the upholding of the concept of the yardstick of equality and the rejection of a need for a minute retrospective investigation of the parties finances.

12. In addition he identifies a five step approach to be adopted in an ancillary relief trial which if I may I will summarize as follows:-

1)  The identification of the assets

2)  An assessment of the parties financial needs

3)  Whether or not the sharing principle should be adopted?

4)  Whether or not there is a good reason to depart from an equal division of the assets?

5)  Deciding the outcome

13. The s 7 factors (s 7 Matrimonial Property and Proceedings Ordinance, Cap 192) are largely dealt with within this general framework. They are:-

(1)  It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(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;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

The issues

14. It is against this continuing conflicted background that the court is now asked to determine the issue of final ancillary relief. In broad terms the main issues are:-

a) What assets should be included in the matrimonial pot?

b) How should the husband’s unvested shares be treated?

c) How should the wife’s debts be treated?

d) Should any expenses be reimbursed to the wife?

e) Should there be any “add backs” on either the husband or the wife’s part?

f) What weight should be given to the Single Joint Expert’s report?

g) Should this case be regarded as a “needs based case” or should the sharing principle be applied?

h) In the event that this is a sharing case how should the assets be divided?

i) Should the yardstick of equality be departed from and if so on what basis? Should the issue of the unvested shares/debts and add backs be looked at again in this context?

j) What is an appropriate division of assets in the circumstances?

k) How much maintenance should the husband pay to the wife for herself and children going forward?

l) What is the wife’s earning capacity?

m) What should the final decision be?

These issues will need to be addressed within the framework identified by Mr Justice Ribeiro PJ in LKW v DD.

Open Proposals

The wife’s open proposals

15. The wife set out a very detailed proposal in her letter of the 29 January 2014.

Capital Division: As set out in our letter of 29 January 2014, our client seeks a 60/40 spilt of the net assets after both parties liabilities have been taken into account. In this regard:-

(1) The Phuket property is to be ring fenced until its title is clear and sold with the net proceeds of sale split 60/40. Until such time as the property is sold, the Phuket property is to be rented out and the net proceeds of rental used to meet the running costs with any surplus to be divided between the parties on a 60/40 spilt.

(2) In the event that further funds are required to clear the title to the Phuket property, your client will advance all of the necessary payments, to be notified and agreed by our client in advance of any payments being made, with our client’s 60% share of the further funds to be reimbursed to your client upon the sale of the property.

(3) Pending sale of the Phuket property, the children are at liberty to use the Phuket property during times when it is not rented out.

(4) In the event that title is not clear and/or the property cannot be sold in five years time, the parties will review the position.

(5) The balance of the capital split to our client of HK$9,319,531 is to be paid to our client by way of lump sum instalments to be met by the HSBC Expat Account and the HKEX stocks to be vested later this year. The single biggest asset is your client’s M Pension. However there is no information provided as to whether the pension can be liquidated or borrowed against.

10. In addition, our client also seeks reimbursement of the out of pocket expenses of HK$483,335 from October 2011 to date (see paragraph 32 of our client’s 16^th Affidavit [P14/4400]), the majority of these expenses were incurred for the children.

11. Our client also seeks an add-back of HK$515,997, including wedding expenses (see paragraph 31 of our client’s 16^th Affidavit [P14/4400].

12. Taking the balance lump sum, reimbursement and add backs into account, the amount to be paid to our client excluding the Phuket property is HK$10,060,864.

13. Maintenance: We enclose an updated Estimate of the monthly expenses for our client and the children⁽¹⁾. In respect of the children’s expenses, our client seeks an Order/Undertaking that your client will be responsible/ordered to pay for:-

(1) all of S’s additional learning support requirements outside of school including but not limited to speech therapy, mandarin, academic support and updated psychological reports including Dr A;

(2) all of the children’s activities, (our client to determine S’s activities and your client to determine J’s activities) not to exceed three activities per child per term and including all overseas trips connected with their activities;

(3) any additional summer courses required by the children (educational and recreational included);

(4) all of the children’s educational expenses and associated costs; and

(5) providing a driver for S while she is attending N school.

14. The children are currently the sole beneficiaries of your client’s two life insurance policies with HSBC and his current employer for a total coverage of US$1 million. Given that the children will have no other means of financial support, other than a claim against your client’s Estate in the event of his death, or disability (total or partial), while they are still dependents, our client requires that your client maintains an appropriate level of life insurance for herself and the children as his named beneficiaries until determination of his financial obligations in respect of our client and the children.

15. On the above basis, our client seeks maintenance for the children of HK$128,716 per month.

16. Given that the capital split is insufficient for a clean break between the parties, our client requires monthly maintenance from your client of HK$86,646 rounded up to HK$86,650. As our client is US tax resident, her maintenance will need to be tax equalised to ensure that the sum of maintenance received is sufficient to cover her monthly expenses.

17. Our client has been informed by her accountant that she is liable for tax in respect of her maintenance but not the children’s maintenance. Our client will need to pay Federal Tax in the US and she will only be liable to pay California State Tax in addition to the Federal Tax if she is residing in California. We enclose the 2013 Tax Rate Schedules provided by our client’s accountant in respect of the Federal Taxes and information from the IRS website in respect of US taxes paid on divorce⁽²⁾.

18. The total maintenance to be paid to our client per annum would be HK$1,039,800÷7.74=US$134,341 and the tax thereon would be US$30,909/HK$239,233 or HK$19,936 per month. On a tax equalised basis our client’s maintenance comes to HK$106,582 per month.

19. Our client is also seeking an order that all maintenance payments are to be backdated to January 2014 and inflation adjusted per annum to be paid by your client by way of automatic payments to her nominated bank account on the 1^st of every month for both herself and kids.

The husband’s open proposals

16.The husband for his part set out his open proposals as follows:-

In advance of the Ancillary Relief Hearing fixed on 10 June 2014, we are instructed to put an open offer of settlement to your client to resolve the financial issues on a full and final basis. This offer is being made following receipt of the Single Joint Expert report dated 6 June 2014 on your client’s spending since late 2010 – 28 February 2014.

In full and final settlement of all claims, each has against the other; our client proposes that your client have a settlement of HK$7,800,000 (US$1,000,000) offset against what your client has in her control which is HK$(578,634). Your client has the option to retain the Phuket property as part of this settlement should she wish. In the event she does not choose to retain the Phuket property the balance due, in the sum of HK$7,221,366 to effect the settlement will be paid by our client as follows:-

1. F (former M pension) HK$6,067,304;

2. HK$1,154,062 by 31 December 2014.

This capital settlement represents a 68% settlement in your client’s favour (7,800,000/11,450,945) as per the asset schedule as enclosed. This settlement takes into account, on a broadbrush basis, your client’s excessive credit card spending as she is a net credit position in the amount of ($578,634). It is clear from the SJE report that your client’s spending has been excessive and needs to be taken into account in the total asset pool.

Our client will make periodic payments to your client by way of spousal maintenance of HK$55,000 per month until her remarriage, cohabitation or further order, and periodic payments as child maintenance of HK$23,000 for J and HK$32,000 for S per month.

This proposal has been prepared taking into account the Single Joint Expert report of BWF. That report shows that since late 2010 – 28 February 2014 your client had average monthly expenditure of HK$291,275.47. There are categories of expenditure which our client is not willing to accept and we consider the Court will consider unreasonable as set out below. Once these amounts are adjusted, it can be seen that our client’s proposal for maintenance is reasonable. Should your client wish to have the standard of living in the manner consistent with her spending, then this can be achieved if she obtains gainful employment in the manner she previously held which provided her with a salary and bonus of approximately HK$2 million per annum or HK$166,666 per month. Taking the maintenance of HK$110,000 and such income of $166,666 this amounts to HK$276,666 which is more or less equivalent to her current spending of HK$291,275. The spending which our client is not willing to accept and has been adjusted is as follows:-

Item	Reason	Adjustment	Adjusted expense
Rent	This amount reflects the average amount paid over a period when our client was making direct contribution to your client’s rent – adjusted to reflect proposed rent of $50,000	13,385.11	50,000.00
Household	Excessive	(5,000.00)	2,841.57
Driver	Currently no driver employed and not agreed in any event	(4,872.81)	Nil
Legal	No further expenses after these proceeding	(19,244.77)	Nil
Adjustment of cash item	Total general cash items and personal cash items is HK$49,251.49 and is considered excessive given the other general and personal expenses incurred	(20,809.73)	Nil
Clothing shoes	Excessive	(25,000.00)	10,613.11
Holiday	Excessive	(10,000.00)	5,284.32
Contribution to parents	Such contributions never made during the marriage and are not necessary	(5,106.38)	Nil
Other – jewellery	Not agreed	(10,359.57)	Nil
Other – mobile	Excessive	(1,247.35)	1,000.00
Adjustment of cash items	Total general cash items and personal cash items is HK$49,251.49 and is considered excessive given the other general and personal expenses incurred	(28,441.76)	Nil
Finance charge	Not agreed	(13,828.83)	Nil
Unknown	Not agreed	(15,751.44)	Nil
Total		(146,277.53)
Adjusted expenditure	291,275.47 – 146,277.53		144,997.94

Our client will continue to pay for the children’s school fees and the children’s medical and dental insurance policies. Our client will meet J’s school transport and extracurricular expenses and your client is to meet S’s school transport and extracurricular expenses.

17. In his closing the husband offers the wife a lump sum of HK$7,018,031 after deduction of various items, such sum to be paid in two tranches, the first tranche of HK$6 million within 14 days and the balance by the 31 December 2014.

The identification of the assets

What assets should be included in the matrimonial pot?

18.The wife produced a schedule of assets during the hearing which, save for the last two columns is set out below. This identifies in broad terms where the parties are in agreement and where they are not. The husband says that there is HK$10,300,640 in the matrimonial pot whereas the wife says that the appropriate figure is HK$14,833,577. According to the first Form E’s filed by the parties, at the beginning of these proceedings they had approximately HK$25.5 million in assets between them. Much of the difference has been spent on legal costs. The value of the Phuket property has also fallen significantly. It is the wife’s case that she has also been obliged to spend some of what she had on trying to maintain the standard of living of the family. This is disputed by the husband but in any event this also goes some way towards explaining the significant difference in asset values between the start of the proceedings in September 2010 and now.

19. There are six points identified by the husband’s counsel which he says requires adjudication on by the court before it will be possible to accurately compute and identify the assets available for distribution. These are all relatively small matters, but nonetheless could not be agreed. They are as follows:-

i) What value should be attributed to the husband’s HSBC account no XXX-XXXXXX-XXX?

ii) How should the husband’s unvested shares be treated? In particular what value should be attributed to the 4,450 shares referred to at D (i) in the schedule?

iii) How should the court regard the husband’s anticipated future tax liability in so far as it relates to the shares?

iv) Should the court deduct the total of S’s school fees for the next academic year from the matrimonial pot?

v) Whether the sum owed to AP should be regarded as a genuine loan of the wife or whether the sum of HK$185,250 should be added back into the asset pool.

vi) How should the wife’s alleged liabilities of between HK$1,037,068 on the husband’s case and HK$1,531,581 on the wife’s case be treated?

In addition there are also the following issues to be determined:-

vii) Should any expenses be reimbursed to the wife?

viii) Should there be any “add backs” on either the husband or the wife’s part?

20. The schedule of assets which became a “working document” during the trial is reproduced below. I have highlighted in bold and in italics those items in dispute. In addition there is no agreement with respect to items 4 (c), 5 (a) – (c) and B2. These items are marked with an *.

RESPONDENT’S SCHEDULE OF ASSETS & LIABILITIES as at 30 April 2014 and 6 August 2014 pursuant to the Order of HH Judge Melloy dated 14 Nov 2013 [P 12/4004]
I. THE PETITIONER
		Original currency if not HK$	H’s Position (HK$)	W’s Position (HK$)
A. Assets
1. Property
	a) Phuket	THB11,600,000	2,784,000	2,784,000
2. Bank accounts
	a) HSBC XXX-XXXXXX-XXX - Premier Account		555,293	750,292
	b) HSBC Expat (GBP) XXXXXX-XXXXXXXX		Nil	Nil
	c) HSBC Expat (USD) XXX-XXXXX-XXX	US$5,508.30	42,962	42,965
3. Life Insurance
	a) HSBC Life XXXXXXXX, surrender value (subject to Undertaking in the Order dated 18 November 2013 [P12/3999]	US$156,820.52	1,223,196	1,223,200
4. Shares
	a) F XXXXXX (former M pension)	US$777,859.43	6,067,304	6,067,304
	b) Principal Investment Funds XXXXXX-XXXX		Nil	Nil
	c) Scottish Provident HFP XXXXXXX	US$10,233.76	79,312*	79,823*
	d) HKEx unvested stock (received in 2012) – 23,539 awarded shares and 623 dividend (HK$117.60 per share = HK$2,841,451 as at 31 March 2014 if had vested [P13/4307])		0	2,841,451
	i) 4,450 awarded shares and 117 dividend shares vest on 7 July 2014 (HK$537,079)		(600,000)
	ii) 7,319 awarded shares and 192 dividend shares vest on 3 December 2014 (HK$883,293)
	iii) 4,450 awarded shares and 117 dividend shares vest on 7 July 2015 (HK$537,079)
	iv) 7,320 awarded shares and 197 dividend shares vest on 3 December 2015 (HK$883,999)
	e) HKEx unvested stock (received in 2013) – (HK$1,850,000) – see explanation in Petitioner’s 17th Affirmation [P13/4307]			1,850,000
5. Pensions
	a) UK Private Pension Sun Life of Canada (£812.82/HK$10,567 – realisable 2025)			10,567*
	b) HKEx ORSO Pension (HK$604,642 unvested – see vesting explanation in Form E – P11/3517)			604,642*
	c) HKEx ORSO Pension voluntary contribution (HK$241,856)			241,856*
	d) UK Private Pension Lincoln National	GBP200	2,600	2,600
6. Other
	a) Motor vehicle		280,000	280,000
	b) [Funds currently held for Petitioner’s legal fees – HK$1,053,963.60]
	c) Funds held on owner’s account for loan to developer to discharge mortgage secured on Phuket property [THB1,604,000/HK$384,960
	d) Rental Deposit for P C		227,252	227,252
	e) Club Membership		188,000	188,000
TOTAL ASSETS OF THE PETITIONER			11,449,919	17,193,952
B. Liabilities
1. Petitioner’s liabilities – credit cards			44,857	44,857
2. Petitioner’s tax and provisional tax due for 2013/14 (15% of salary and			879,500*	866,749*
3. Anticipated future tax liabilities:
	a) in relation to 4.d)i)		0	80,562
	b) in relation to 4.d)ii)			132,494
	c) in relation to 4.d)iii)			80,562
	d) in relation to 4.d)iv)			132,600
	e) in relation to 4.e)			227,500
4. S’s school fees			147,000	0
TOTAL LIABILITIES OF THE PETITIONER			1,071,357	1,565,324
C. NET ASSETS OF THE PETITIONER			10,378,562	15,628,628
II. THE RESPONDENT
		Original currency if not HK$	H’s Position (HK$)	W’s Position (HK$)
A. Assets
1. Bank accounts
	a) HSBC XXX-XXXXXX-XXX (current)		29,488	29,488
	b) HSBC XXX-XXXXXX-XXX (savings)		857	857
	c) HSBC XXX-XXXXXX-XXX (current)		3,967	-
	d) HSBC XXX-XXXXXX-XXX (savings)		15,296	-
	e) HSBC XXX-XXXXXX-XXX (current)		100	-
	f) HSBC XXX-XXXXXX-XXX (savings)		18,004	-
	g) HSBC XXX-XXXXX-X (MPF)		88,729	88,729
	h) Wells Fargo XXXXXXXXXX	US$21.85	170	170
	i) Charles Schwaab	US$5,000	39,000	39,000
2. Others
	Money liquidated from Unit Trusts (HSBC XXX-XXXXXX-XXX & HSBC XXX-XXXXXX-XXX) Order dated 20 February 2014:
	a) Third Party in Philippines		480,000	480,000
	b) Sum paid to A P		185,250	0
	c) Funds currently held for Respondent’s legal fees
	d) RBG deposit		100,000	100,000
TOTAL ASSETS OF THE RESPONDENT			959,146	736,530
B. Liabilities
	Respondent’s liabilities		1,037,068	1,531,581
TOTAL LIABILITIES OF THE RESPONDENT			1,037,068	1,531,581
C. NET ASSETS OF THE RESPONDENT			(77,922)	(795,051)
TOTAL NET ASSETS (“TNA”) (Petitioner’s + Respondent’s)			(77,922)	(795,051)
	Petitioner’s net assets		10,378,562	15,628,628
	Respondent’s net assets		(77,922)	(795,051)
	TNA		10,300,640	14,833,577
	TNA (excluding Phuket property)		8,026,640	12,049,577
Currency Conversions: 1 USD = 7.8 HKD 1 GBP = 13.0 HKD 1 THB = 0.24 HKD

The six points raised by the husband

What value should be attributed to the husband’s HSBC account no XXX-XXXXXX-XXX?

21. Unfortunately the hearing was conducted in two tranches, the first tranche being in June 2014 and the second tranche following over several days in August 2014. It had been initially agreed that the cut off point for the valuation of the assets would be the 30 April 2014. I queried this when the parties returned to court for the second tranche of the trial given the fact that as far as possible the valuation of the assets should be calculated as at the date of the hearing. To that end please see the excerpt from LKW v DD below:-

E.2 Step 1: Identification of the assets

The first step in the exercise is to ascertain the financial resources of each of the parties calculated as at the date of the hearing. In particular, under section 7(1)(a), the court must have regard to “the income, earning capacity, property and other financial resources” which each of the parties “has or is likely to have in the foreseeable future”. The object will of course be to compute the net financial resources, taking account of all material liabilities. At this stage, the court need not attempt to distinguish between matrimonial and non-matrimonial property, that being an exercise best undertaken (if necessary) when considering distribution of the assets.

22. Notwithstanding this the parties agreed on the 6 August 2014 that the most cost efficient and sensible way to proceed was on the premise that the cut off point for the valuation of all assets should remain as at the 30 April 2014.

23. A difficulty then arose because the husband wished certain items to be deducted from the balance in his HSBC Premier account as at the 30 April 2014 on the basis that he had regular recurring expenses that should be taken into account and deducted. He claimed that to do otherwise was to misrepresent the “average balance” in that account. The husband explains his position in a letter from his solicitors dated the 29 July 2014 as follows:-

1. At Item A, ‘Assets’ item 2 you have agreed to include our client’s bank balance as at 30 April 2014 of HKD750,292. This is an inflated bank balance as it takes into account our client’s salary deposit on 25 April 2014 of HKD266,000 [C8/2532] but does not take into account the expenses that our client immediately paid out thereafter as follows:-

1.1. His rent on 2 May 2014 HKD75,000

1.2. First tranche of maintenance on 2 May 2014 HKD40,000

1.3. Second tranche of maintenance paid out 3 May 2014 HKD40,000

1.4. Third tranche of maintenance paid 5 May 2014 HKD40,000

1.5. Total HKD195,000

It is therefore most appropriate that our client’s bank balance is recorded as at 30 April 2014 of HKD750,292.91 less HKD75,000, less HKD40,000, less HKD40,000, less HKD40,000. The balance is therefore HKD555,292.91. However, we confirm that our client’s current bank balance is HKD445,436.81.

2. We have added in the liability for S’s school fees of HKD147,000.

24. Although I have some sympathy with the husband in this respect – the fact remains that there must, as far as possible, be a clearly discernable cut off point at which the assets are valued and that should either be as at the date of the trial or alternatively as close to that date as possible. As will be seen that has proved difficult to achieve in this case. In so far as this point is concerned however, the difficulty is that to do otherwise leads to a whole range of other issues – which in turn need to be decided upon. For example the wife claims that the husband seeks to deduct the whole of the rent when according to his most recent Form E Ms V contributes towards this also – and so on and so forth. In the circumstances I accept that the appropriate figure to be included in the schedule is HK$750,292 – even though that figure may in actual fact vary over a month as income is received and payments are made.

How should the husband’s unvested shares be treated?

In particular what value should be attributed to the 4,450 shares referred to at D (i) in the schedule?

25. The difficulty here is that unvested shares are a particular type of post separation accrual in that until they are vested it is not possible to value them accurately. The husband joined his new company in July 2012 – three years after the parties had separated. In general terms I accept, as submitted by counsel for the husband, that the unvested shares are a financial resource which the husband is likely to have in the foreseeable future (see s 7(a) MPPO). To that extent although it is perfectly proper to include them in the schedule of assets, they are not assets to which “the yardstick of equality will forcefully apply”. The wife attributes a value to the HKEx shares as if they had vested as at the 31 March 2014 – i.e. a total sum of HK$2,841,451 and does so on the premise that prima facie she should be entitled to 50% of their value. I do not accept that to be the case. Infact these shares vest and will continue to vest on a rolling basis from July 2014 to December 2015. In so far as the first vestment is concerned in the sum of HK$600,000 odd, this is referred to in the schedule but has not been included in the total of the husband’s net assets given that the shares vested in July and the agreed cut off point for the schedule of assets is the 30 April 2014. In addition the wife seeks to include further unvested stock as set out in 4e) in the sum of HK$1,850,000. The husband describes the situation with respect to this stock award in his 17^th affidavit as follows:-

24.3 I received a stock award with a market value of HKD1,850,000 at the time of purchase. The exact number of shares is not known but when my employer purchases these on market they will do so at the current value up to an amount of HKD1,850,000 [P13/4245]. The stocks are unvested with 50% vesting in January 2016 and 50% in January 2017.

26. Thus in total the wife seeks to include HK$ 4,691,451 in the schedule of assets (i.e. HK$2,841,451 + HK$1,850,000) seemingly on the premise that she is entitled to 50% of that value. As I have said I do not necessarily accept that to be the case. Thus the shares shall remain on the schedule of assets as a financial resource that the husband is likely to have in the foreseeable future, but will not be included in the computation of assets for the time being.

27. Mr Egerton for the husband has relied on the case of Rossi v Rossi [2006] EWHC 1482 (Fam) in support of his position on this point. The difficulty with Rossi however, is that it does not specifically refer to unvested shares when analysing whether a post separation bonus should be included in the so called “matrimonial pot”. It is though helpful when looking at the time frames for including any form of bonus. To that end I have set out the requisite part of the judgment below. Nicholas Mostyn QC as he then was, sitting as a Deputy Judge said as follows:-

“[24] Doing the best I can to draw the various threads together I think that the following principles can be deduced:

24.1 The statute requires all the assets to be valued at the date of trial.

24.2 For the purposes of establishing the matrimonial property in respect of which the yardstick of equality will ‘forcefully’ apply the value of assets brought into the marriage by gift and inheritance (other than the former matrimonial home), together with passive economic growth on those assets, should be excluded as non-matrimonial property.

24.3 Assets acquired or created by one party after (or during a period of) separation may qualify as non-matrimonial property if it can be said that the property in question was acquired or created by a party by virtue of his personal industry and not by use (other than incidental use) of an asset which has been created during the marriage and in respect of which the other party can validly assert an unascertained share. Obviously, passive economic growth on matrimonial property that arises after separation will not qualify as non-matrimonial property.

24.4 If the post-separation asset is a bonus or other earned income then it is obvious that if the payment relates to a period when the parties were cohabiting then the earner cannot claim it to be non-matrimonial. Even if the payment relates to a period immediately following separation I would myself say that it is too close to the marriage to justify categorisation as non-matrimonial. Moreover, I entirely agree with Coleridge J when he points out that during the period of separation the domestic party carries on making her non-financial contribution but cannot attribute a value thereto which justifies adjustment in her favour. Although there is an element of arbitrariness here, I myself would not allow a post-separation bonus to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation.

24.5 By this process the court should, without great difficulty, be able to separate the matrimonial and non-matrimonial property. The matrimonial property will in all likelihood be divided equally although there may be deviation from equal division: (a) if the marriage is short; and (b) part of the matrimonial property is ‘non-business partnership, non-family assets’ (or if the matrimonial property is represented by autonomous funds accumulated by dual earners).

24.6 The non-matrimonial property is not quarantined and excluded from the court’s dispositive powers. It represents an unmatched contribution by the party who brings it to the marriage. The court will decide whether it should be shared and, if so, in what proportions. In so deciding it will have regard to the reality that the longer the marriage the more likely non-matrimonial property will become merged or entangled with matrimonial property. By contract, in a short marriage case non-matrimonial assets are not likely to be shared unless needs require this.

24.7 In deciding whether a non-matrimonial post-separation accrual should be shared and, if so, in what proportions, the court will proceeded diligently with the claim; whether the party who has the benefit of the accrual has treated the other party fairly during the period of separation; and whether the money-making party has the prospect of making further gains or earnings after the division of the assets and, if so, whether the other party will be sharing in such future income or gains and if so in what proportions, for what period, and by what means.”

28. I accept what is said in that judgment. Consequently in so far as the identification of the assets is concerned – the unvested shares have been identified and they are included in the schedule of assets as a financial resource which the husband is likely to have in the foreseeable future.

How the court would regard the husband’s anticipated future tax liability?

29. Given my Ruling above there will be no need to include an anticipated tax liability for those shares at this stage in the schedule of assets and liabilities.

Should the court deduct the total of S’s school fees for the next academic year from the matrimonial pot?

30. It is the husband’s case that he pays for the children’s school fees annually and that in the normal course of events he would have paid for the school fees for both children in April 2014. As S changed schools he was obliged to pay for S’s school fees in September. This is an expense that infact arose prior to the commencement of the new term in September – but the husband wants to deduct it from the schedule of assets as if it had arisen in April prior to the cut off date. I have also noted that the husband refers to the children’s school fees in his Form E as a recurrent monthly expense. In such circumstances I do not accept that it is appropriate to deduct this expense from the schedule of assets.

Whether the sum owed to AP should be regarded as a genuine loan of the wife or whether the sum of HK$185,250 should be added back into the asset pool?

31. It is the wife’s case that she had to resort to borrowing money from her best friend – Ms AP – because the husband did not provide her with sufficient maintenance. She says that there was no formal loan agreement because it was simply an arrangement between good friends. Ms P was not called upon to give evidence nor did she file an affidavit in support of the wife’s version of events. The wife points to a number of deposits made into her bank account which amount in total to HK$180,250 and not HK$185,250 as claimed. (The figure is also on one occasion put at HK$186,250). The husband for his part says that there is no evidence of a loan and he asks that the money be added back into the schedule of assets. He says that this was a cash parking arrangement and that these funds remain available to the wife.

32. Although it is true that there is no direct evidence of a loan, I am nevertheless inclined to accept the wife’s version of events on this point – especially given the evidence of monies being paid into her account as set out above. A cheque in the sum of HK$186,250 was also paid out of the wife’s account to P Ltd on the 9 January 2014. Thus I would accept for present purposes that the sum of HK$180,250/HK$185,250 should not be added back to the wife’s side of the asset schedule as suggested by the husband.

How should the wife’s debts be treated?

How should the wife’s alleged liabilities of between HK$1,037,068 on the husband’s case and HK$1,531,581 on the wife’s case be treated?

33. The husband’s primary case is that he paid an appropriate amount for the wife’s maintenance, which was subject to two court orders; that the wife engineered her own redundancy in December 2011 and that she has deliberately chosen not to seek re employment since. Consequently he says that any debts accumulated by the wife are of her own making and are her own responsibility and came about as a direct result of her refusing to trim her expenses and/or obtain further employment. At the end of his 17^th affirmation dated the 10 April 2014 he says inter alia that both parties should be responsible for their own debts.

34. As at the end of the trial the husband’s position appears to have shifted somewhat in that he accepted that the wife had debts of HK$1,037,068. The wife for her part said that she owed HK$1,531,581 on credit cards, loans and other debts. This is down slightly on her schedule of liabilities as set out in her updated Form E dated the 10 June 2013 when she said that she had debts of HK$1,637,113. This figure alters again in the wife’s most recent affidavit (16^th affidavit). Given this lack of clarity on the matter the solicitors for the husband wrote to the wife’s solicitors on the 29 July 2014 seeking an update.

35. The wife’s solicitors responded as follows:-

1. CREDIT CARDS – Our client has given evidence that she is incurring substantial finance charges on her credit cards which your client has estimated at HK$600,000 since separation. Your client has also acknowledged that the maintenance which he has been paying to our client for her and the children of HK$120,000 has not been sufficient.

Our client’s updated credit card liabilities are:-

Credit Card Provider	Outstanding Balance (HK$)	Minimum Payment Due (HK$)
American Express Card	290,796.00 (as at 11 July 2014)	* 10,767.00
Standard Chartered – Platinum Mastercard	257,741.00	14,213.00
Wing Hang Bank	51,710.89	40,007.00
HSBC – Premier Credit card (cancelled)	453,160.00	46,716.00
HSBC VISA card XXXX-XXXX-XXXX-XXXX	356,710.30	63,004.51
Total:-	HKD1,409,598.19 plus DBS card outstanding balance	HK$174,705.51

We enclose copies of our client’s updated credit card statements in support⁽¹⁾. In respect of our client’s American Express Credit card, our client has received a letter of demand from American Express’ lawyers⁽²⁾ to pay the full amount o fHK$290,796 within 7 days.

Our client’s financial situation is dire. She is incurring substantial finance charges which are payable from the family resources. Our client therefore seeks an advance from your client of her share of the capital assets to pay down her credit card liabilities. Ideally our client would like to pay off all her liabilities and if your client cannot advance this sum to her now then our client must have at least the minimum payment due.

36. Consequently it is not entirely clear how the precise figure of HK$1,531,581 has been arrived at. I accept however that the wife has debts of at least HK$1,409,598 as at the 13 August 2014. I do not know exactly what her debt situation was as at the 30 April 2014.

37. The situation has been further complicated by the fact that at the end of the trial it was agreed that the husband would advance the wife the sum of HK$454,734 in order that she could settle some of her most pressing credit card debt. (The figure actually given in court was HK$455,501). I was told that the sum of HK$94,000 was to be paid the day after the last day of trial on the 20 August 2014 and the balance within the following 14 days. (Infact it seems that this did not happen and payment was effected later).In any event this payment was made on the basis that it would be taken into account by the court when coming to a final decision on ancillary relief. It was specifically agreed that the money was to be advanced in order that the wife settle some of her most pressing liabilities. In the wife’s Reply to the husband’s written submissions she says:-

17. Due to the recent issues relating to J, the Respondent has had to use half of the HK$454,734 advanced by the Petitioner to meet urgent expenses relating to J which the Petitioner has refused to pay when requested. She has therefore not been able to reduce her liabilities as intended.

Since then the solicitors have written expressing concern and stating that this was not agreed.

38. In such circumstances it seems to me that it is not possible to include the wife’s debts in any accurate way in the schedule of assets and liabilities as at the 30 April 2014. I accept that the wife has current debts of approximately HK$1.4 million less the sum advanced to her by the husband at the end of the trial. In broad terms that means that she has current debts of somewhere between HK$945,000 - HK$1,172,500, depending on whether the full sum of HK$455,000 advanced by the husband is taken into account – or only half of that sum. For present purposes I am inclined to accept that both parties have been required to pay additional sums for or on behalf of J and therefore I will accept for these purposes that the wife owes at least HK$1,172,500. This sum has been included in the schedule of assets.

39. There are other minor discrepancies in the schedule of assets which do not amount to very much and which I was not addressed on specifically during the course of the trial. Some of these are simply a difference in calculation – for example the difference in value of the Scottish Provident Fund – HK$79,312 versus HK$79,823. For present purposes I have included an average figure of HK$79,567 for this item. In so far as the husband’s tax and provision for tax is concerned I have accepted his estimate of HK$879,500. In so far as 5 a) – c) is concerned, these are pensions which do not appear to be immediately available in any event. These have been marked with an *.

40. Thus the schedule of assets is as follows:-

RESPONDENT’S SCHEDULE OF ASSETS & LIABILITIES as at 30 April 2014 and 6 August 2014 pursuant to the Order of HH Judge Melloy dated 14 Nov 2013 [P 12/4004]
I. THE PETITIONER
		Original currency if not HK$
A. Assets
1. Property
	j) Phuket	THB11,600,000	2,784,000
2. Bank accounts
	d) HSBC xxx-xxxxxx-xxx - Premier Account		750,292
	e) HSBC Expat (GBP) xxxxxx-xxxxxxxx		Nil
	f) HSBC Expat (USD) xxx-xxxxxx-xxx	US$5,508.30	42,965
3. Life Insurance
	a) HSBC Life xxxxxxxx, surrender value (subject to Undertaking in the Order dated 18 November 2013 [P12/3999]	US$156,820.52	1,223,200
4. Shares
	a) F xxxxxx (former M pension)	US$777,859.43	6,067,304
	b) Principal Investment Funds xxxxxx-xxxx		Nil
	c) Scottish Provident HFP xxxxxxx	US$10,233.76	79,567
	d) HKEx unvested stock (received in 2012) – 23,539 awarded shares and 623 dividend (HK$117.60 per share = HK$2,841,451 as at 31 March 2014 if had vested [P13/4307])			(2,841,451)
	v) 4,450 awarded shares and 117 dividend shares vest on 7 July 2014 (HK$537,079)			(600,000)
	vi) 7,319 awarded shares and 192 dividend shares vest on 3 December 2014 (HK$883,293)
	vii) 4,450 awarded shares and 117 dividend shares vest on 7 July 2015 (HK$537,079)
	viii)7,320 awarded shares and 197 dividend shares vest on 3 December 2015 (HK$883,999)
	e) HKEx unvested stock (received in 2013) – (HK$1,850,000) – see explanation in Petitioner’s 17th Affirmation [P13/4307]			(1,850,000)
5. Pensions
	a) UK Private Pension Sun Life of Canada (£812.82/HK$10,567 – realisable 2025)		10,567*
	b) HKEx ORSO Pension (HK$604,642 unvested – see vesting explanation in Form E – P11/3517)			(604,642)
	c) HKEx ORSO Pension voluntary contribution (HK$241,856)		241,856*
	d) UK Private Pension Lincoln National	GBP200	2,600*
6. Other
	a) Jaguar motor vehicle		280,000
	b) [Funds currently held for Petitioner’s legal fees – HK$1,053,963.60]
	c) Funds held on owner’s account for loan to developer to discharge mortgage secured on Phuket property [THB1,604,000/HK$384,960
	d) Rental Deposit for Pine Court		227,252
	e) HKCC Membership		188,000
TOTAL ASSETS OF THE PETITIONER			11,897,603
B. Liabilities
1. Petitioner’s liabilities – credit cards			44,857
2. Petitioner’s tax and provisional tax due for 2013/14 (15% of salary and			879,500
3. Anticipated future tax liabilities:
	a) in relation to 4.d)i)
	b) in relation to 4.d)ii)
	c) in relation to 4.d)iii)
	d) in relation to 4.d)iv)
	e) in relation to 4.e)
4. Suzy’s school fees
TOTAL LIABILITIES OF THE PETITIONER			924,357
C. NET ASSETS OF THE PETITIONER			10,973,246
II. THE RESPONDENT
		Original currency if not HK$	H’s Position (HK$)	W’s Position (HK$)
A. Assets
1. Bank accounts
	a) HSBC xxx-xxxxxx-xxx (current)		29,488
	k) HSBC xxx-xxxxxx-xxx (savings)		857
	l) HSBC xxx-xxxxxx-xxx (current)
	m) HSBC xxx-xxxxxx-xxx (savings)
	n) HSBC xxx-xxxxxx-xxx (current)
	o) HSBC xxx-xxxxxx-xxx (savings)
	p) HSBC xxx-xxxxx-x (MPF)		88,729
	q) Wells Fargo xxxxxxxxxx	US$21.85	170
	r) Charles Schwaab	US$5,000	39,000
2. Others
	Money liquidated from Unit Trusts (HSBC xxx-xxxxxx-xxx & HSBC xxx-xxxxxx-xxx) Order dated 20 February 2014:
	a) Third Party in Philippines		480,000
	b) Sum paid to AP
	c) Funds currently held for Respondent’s legal fees
	d) RBG deposit		100,000
TOTAL ASSETS OF THE RESPONDENT			738,244
B. Liabilities
	Respondent’s liabilities		(1,172,500)
TOTAL LIABILITIES OF THE RESPONDENT
C. NET ASSETS OF THE RESPONDENT			(434,256)
TOTAL NET ASSETS (“TNA”) (Petitioner’s + Respondent’s)
	Petitioner’s net assets		10,973,246
	Respondent’s net assets		(434,256)
	TNA		10.538,990
Currency Conversions: 1 USD = 7.8 HKD 1 GBP = 13.0 HKD 1 THB = 0.24 HKD

41. Thus there is approximately HK$10,538,990 in the schedule of assets. In addition there are a number of unvested shares that should accrue to the husband over time.

Should any expenses be reimbursed to the wife?

42. This aspect of the case was also difficult to resolve given a certain lack of clarity surrounding the figures and confusion concerning the approach taken by the wife. It became clear during the cross examination of the wife that a) she was seeking reimbursement for expenses which under the terms of the court orders she was not entitled to and b) once that became clear to her she asked in the alternative for the previous court orders to be adjusted given that it was her case that she simply could not live on the amount of maintenance provided to her by the husband.

43. For the avoidance of doubt I think it might be helpful if reference was made in the first instance to the two court orders in question and the background to the issue. I have highlighted those clauses which deal with reimbursable expenses.

44. On the 21 November 2011 I made the following order with respect to the children:-

Order with respect to the children

Consequently I will make an order that upon the husband undertaking to continue to pay for:-

a) the children’s school fees;

b) op to HK$7,000 per month for the American Club fees and chits;

c) maintenance of the Phuket property;

d) the children’s medical and dental expenses;

e) the fees for the children’s therapy up to HK$10,000 per month; and

f) 70% of the children’s extra tuition fees, extracurricular activities and school camps, within 14 days upon production of receipts for the same.

The husband shall pay the wife interim maintenance for the two children of the family in the sum of HK$46,000 per month per child with effect from the 1 December 2011 until further order.

45. This was on the premise that the wife was then working and earning just under HK$170,000 per month and that she could maintain herself and contribute towards the children’s expenses.

46. On the 19 March 2012 the wife applied to vary the maintenance upwards given the fact that she made redundant on the 30 December 2011. This application was eventually dealt with by consent. The following terms are of some relevance in this context:-

(C) UPON the Petitioner and the Respondent acknowledging to the Court and to each other that the expenses herein set out are agreed for interim purposes only and are without prejudice to the final determination of the Court at the substantive ancillary relief hearing.

(D) AND UPON the Petitioner undertaking to the Respondent and to the Court to pay the following expenses for J and S:-

(i) school fees of HK$29,233 per month;

(ii) extra-tuition fees of HK$1,200 per month for J;

(iii) J’s extra-curricular activities and S’s horse riding expense, total cost HK$4,000 per month;

(iv) the children’s therapy;

(v) the Cricket Club expenses up to HK$2,500 per month.

(E) UPON the Petitioner and the Respondent acknowledging to the Court and to each other that the appropriateness or not of the backdating of this Order from the date of the Respondent’s summons dated 19^th March 2012 has not been determined.

(F) AND UPON the Respondent agreeing, acknowledging and undertaking to the Petitioner and to the Court that S’s interim maintenance amount as specified in paragraph 3 of the Order includes an amount of HK$5,000 for S’s Sylvan and Chinese tuition and HK$2,000 for extra-curricular activities that she agrees to pay directly for S but for S’s horse riding.

(G) AND UPON the Petitioner agreeing, acknowledging and undertaking to the Respondent and to the Court to add the Respondent to his medical health insurance policy as provided by his new employment commencing on 9th July 2012 until further order.

(H) AND UPON the Respondent undertaking to the Court and to the Petitioner not to incur medical and dental expenses not covered by the Petitioner’s insurance policy without the prior written agreement of the Petitioner with the exception of further consultation with Dr C up to a maximum of 4 sessions prior to the return date of this matter on 18th September 2012 at 9:30 am and the ongoing orthodontic treatment in the total sum of HK$15,000.

(I) AND UPON the Petitioner undertakes to the Court and to the Respondent that he be responsible for the reasonable costs of S and J seeing their respective doctors at Stanford, United States of America and the costs of any prescribed medication.

(J) AND UPON the Respondent’s return to Hong Kong, she will deliver J’s medication to the Petitioner.

BY CONSENT, IT IS ORDERED THAT:-

1. The Order dated 21^st November 2012 and the undertakings contained therein be discharged.

2. The Petitioner shall pay to the Respondent the sum of HK$65,000 as maintenance pending suit from 1^st July 2012 until further order.

3. The Petitioner shall pay to the Respondent the sum of HK$55,000 as interim maintenance for the two children of the family, namely J …and S …, with the amount of HK$23,000 for J and HK$32,000 for S from 1^st July 2012 until further order.

47. An order was made to this effect on the 22 June 2012. It is the wife’s case that in reality this order simply meant that the husband was paying for her rent. She says that she agreed to the order because she had been under the misapprehension that this would only be a short term measure designed to tide her over until either the parties reached an agreement on ancillary relief at FDR or otherwise or there was a trial. She says that it was clear that she was not going to be able to support herself and the children on this sum, if she was going to maintain anything like the standard of living that they had enjoyed before the marriage broke down and if she did not return to work.

48. In real terms then the husband’s maintenance obligations increased from HK$92,000 per month to HK$120,000 per month. He continued to be responsible for the children’s school fees and his undertakings with respect to the children’s other expenses were further particularized. The previous undertakings were discharged. It was also specifically acknowledged by the wife that she would be responsible from that date on for S’s extra tuition and other extracurricular activities save for the horse riding which was dealt with separately. These points are important in the context of “reimbursement”.

49. On the 7 January 2014 the wife issued a further Notice of Application seeking an increase of the interim maintenance payments to a) cover her medical and dental insurance and b) to cover the costs of her accommodation pending determination of the final ancillary relief. This matter was set down for hearting on the 20 February 2014. On that day a consent summons was filed inter alia in the following terms:-

AND UPON the Petitioner undertaking to the Court and to the Respondent that he will pay to the Respondent the sum of HK$18,775 within two days of the date of service of the Order to be made herein by way of reimbursement in respect of the Respondent’s claim for reimbursements set out in the letter from Stevenson Wong & Co dated 9 January 2014;

AND UPON the Petitioner and the Respondent acknowledging and agreeing that the Respondent’s claim for the balance of reimbursements will be dealt with at the ancillary relief trial or earlier by consent and that the Petitioner’s claim for reimbursements will be dealt with at the ancillary relief trial or earlier by consent;

AND UPON the Petitioner and the Respondent acknowledging and agreeing that the terms of the Order to be made herein is without prejudice to their respective positions as to the appropriate level of maintenance for the Respondent and the children;

AND UPON the Petitioner and the Respondent acknowledging and confirming that the Petitioner maintains his position in respect of the Respondent’s medical and dental insurance as stated in the letter from Withers dated 18 February 2014 and the Respondent maintains her position as set out in the letters from Stevenson Wong & Co dated 18 February 2014 and 19 February 2014 and in the event the Respondent’s insurance premiums are over HK$3,230.80 as a result of the lapse of the Respondent’s medical and dental insurance that any claim by the Respondent for the Petitioner to meet this shortfall shall be dealt with at the ancillary relief trial or earlier by consent;

AND UPON the Petitioner undertaking to the Court and to the Respondent that subject to Recital (D) above and Recital (F) below, the Petitioner will pay to the Respondent the sum of HK$25,846 as payment for the Respondent’s insurance premiums from February 2014 to the end of September 2014 within two days of the date of this Order; and

AND UPON the Petitioner undertaking to the Court and to the Respondent pay the Respondent’s medical/dental insurance premiums from February 2014 pending further order of the Court.

BY CONSENT, IT IS ORDERED that:-

1. The Respondent be released from his Undertaking at Recital E of the Order dated 22 June 2012;

2. The Respondent’s Notice of Application for Ancillary Relief filed on 7 January 2014 to vary interim maintenance be adjourned from 20 February 2014 to 10 June 2014 to be determined at the ancillary relief trial; and

3. Costs be reserved.

50. It is clear from this that there continued to be inter alia an issue between the parties with respect to the reimbursable expenses.

How much was the wife claiming?

51. In the letter of the 9 January 2014 referred to in the court order the wife said that the total reimbursements due to her were HK$315,282.60. In her 16^th affidavit filed on the 17 April 2014 in preparation for the trial she said that she sought reimbursement of HK$483,335 for the period from October 2011 to date. This included a short fall of rent in the sum of HK$252,128. Following the trial during which time both parties were cross examined extensively on this point, the husband’s solicitors wrote confirming that in the witness box he had agreed to pay HK$55,881 of the so called reimbursable expenses. However on reviewing the matter he said that of those sums, some had already been paid previously and that infact he was in credit by HK$21,864. This point had not been picked up during the trial and consequently the wife had had no opportunity to challenge him on it. Counsel for the husband put it thus in his closing submission:-

85. The Petitioner’s position as to reimbursements as referred to in correspondence is as follows:-

i) When first taken to the new schedule on 7 August 2014 he agreed re-imbursements of HK$55,881

ii) On reviewing the transcript and the previous documents as referred to at C9/3191 the Petitioner considers that of the HK$55,881 he had in fact paid HK$25,434 therefore the sum due was HK$30,447 ($55,881 - $25,434)

iii) Following the hearing in August 2014 the Petitioner paid HK$52,311 [C9/3176] which was an over payment of HK$21,864 ($52,311 - $30,447)

86. Therefore the Petitioner’s reconciliation of the reimbursements that the Respondent owes him is HK$21,864 plus HK$27,449 in relation to the damage to the Jaguar car and excess medical claims. The total sum due to the Petitioner is therefore HK$49,313 [HK$21,864 + HK$27,449]

52. In the wife’s Reply to the husband’s closing she says as follows:-

15. Although the Petitioner agreed at the end of the Trial to reimburse the Respondent HK$52,311 to be taken into account once the Transcript of evidence is available, he then sought to change the amount to HK$50,281…. On the Respondent’s calculation, the amount which the Petitioner agreed during his cross examination to pay her is HK$59,961 and the amount that H is entitled to deduct by way of agreed reimbursements which he has paid is HK$24,854, see attached table.

16. The Respondent accepts that the amount owed by the Petitioner by way of agreed reimbursements should be HK$35,107 with her claims for non-agreed items to be adjudicated [C9/3074] of HK$530,031 (less the HK$59,961 dealt with in paragraph 15 above) comes to HK$470,070.

53. Thus the husband originally paid HK$52,311. The wife says that the correct figure according to the transcript is HK$59,961. I have tried to reconcile these figures – but with respect it is impossible for me to determine that on the basis of the letters that have passed between the parties since the conclusion of the trial. Given that this point was not raised during the trial and arguably should have been, I have therefore decided to proceed on the premise that what the wife says is correct – i.e. that the husband is entitled to deduct HK$24,854 and that the original figure should have been HK$35,107 and not the HK$52,311 paid. Thus arguably the wife owes the husband HK$17,204. (HK$52,311 – HK$35,107 = HK$17,204). In so far as the other items are concerned that the husband says are due and owing to him i.e. the damage to the jaguar car and the medical claims, these will be dealt with below.

54. For the record I accept that the wife was claiming many items as reimbursable, which under the terms of the court order were not strictly speaking reimbursable to her. It also seems to me that the issue of the rent needs to be dealt with under a separate head. It is almost impossible now to go back in order to adjudicate over each and every item in order to determine what should or should not have been paid. The parties have attempted to do this and at great cost. However the wife attached to her 16^th affidavit a schedule of items that she sought to be reimbursed to her. At that point the total amount in that schedule stood at HK$470,450. For the avoidance of doubt I do not accept that the wife was entitled to claim the following under the terms of the court order dated the 22 June 2012:-

Cooking	7,000
Chinese lessons	17,010
Kumon	2,400
Gymnastics	7,653
Piano	12,704
Art classes	12,320
Ballet	2,000
Girl Scouts	6,210
Total	74,297

55. In addition I accept that the husband was not liable for the three baseball trips that J went on, in the total cost of HK$29,444 or for the rent shortfall of HK$252,128. Thus of the HK$470,450 claimed by the wife, under the terms of the court order she was not entitled to at least HK$355,869 of it – on my calculation. Of the remaining items the husband says that they have been paid unless for example the receipt was unclear or not forthcoming. He has also refused to pay for additional items not particularly specified such as extra eye glasses for S.

56. The difficulty during the first tranche of the trial was that it became almost impossible to determine exactly what it was that the wife was claiming. Consequently I suggested that a comprehensive schedule be compiled. The wife’s solicitors produced this under cover of their letter of the 7 August 2014. This led to a further problem in that it was not always clear how the comprehensive schedule differed from the original schedule attached to the wife’s 16^th affidavit. In any event this schedule allegedly showed the full amount claimed by the wife, the sum that the husband had agreed to reimburse and what was outstanding. As before it included the items referred to above, to which the wife was not entitled to in any event. In total she claimed just under HK$550,000. This included for example hotel bills for the baseball trips not claimed previously, additional items, such as camps for the children, some of which arguably she was entitled to and others which she was not (e.g. science camp for S – 1 June 2013, that she was not entitled to claim for and a Lego workshop dated the 31 January 2012, that arguable she was entitled to claim for). In any event the wife’s claim had risen to HK$549,316.

57. In so far as the remainder of the so called reimbursable items are concerned, as indicated at least approximately HK$355,000 cannot be claimed back by the wife in any event. In broad terms that leaves a balance of just under HK$300,000 (if I were to accept the figure of HK$550,000 which is putting the wife’s claim at its very highest). The further difficulty I have is that it is clear from the comprehensive schedule produced that many of the items that were claimed as reimbursable were paid for by the Respondent using her credit card. The wife also seeks repayment of her debts, which are mainly her credit card debts. Thus there is likely to have been some double accounting here. In such circumstances I will not add back into the asset pool any of the so called reimbursable expenses. I am not of the view in the circumstances that any sums should be added back into the schedule of assets under this heading. I accept however that there is a related issue concerning the appropriate level of maintenance paid to the wife in the past – especially following her redundancy in December 2011.

Should there be any “add backs” on either the husband or the wife’s case?

The law

58. The law on “add backs” is well established.

If one or both of the parties have by their dealings with the assets enjoyed by the family severely depreciated or destroyed those assets, this is a matter to which the court might properly have regard… in the award that is made. It might be appropriate to add back the value of the asset lost or diminished in value to the balance sheet of the defaulter’s assets. (Rayden 18^th edition, para 16.80)

59. The point on “add backs” as claimed by the wife is similarly confused. In her letter of the 30 June 2014, which was after the first tranche of the trial, the wife attached an updated schedule of assets to the letter in which she claimed HK$566,446 for “add backs”. It is not clear what this figure is based on. Previously in her 16^th affidavit, she asked for an additional HK$460,000 be added back as follows:-

31. Add backs: I also seek to be added back and credit to be given to me for the following items of expenditure on the Petitioner’s 3^rd wife: The additional spend on a forensic accountant could have been better used on reducing liabilities or reimbursing me for amounts outstanding for more than 2 years. Half of the amount the Petitioner spend on purchasing his 3^rd wife a ring from the joint common funds, could have also gone a long way towards meeting maintenance payments the Petitioner says he is simply unable to afford.

Description	Date	Amount	Ref
Diamond ring	07.08.2013	399,000	P11/3567
Jewellery	08.09.2011	36,000	P7/2064
Chanel	11.12.2011	8,000	P7/2070
Carrera jewellery	03.12.2013	17,300	P7/2064
Costs of wedding		Unknown
Total		460,300 plus unknown

60. Given the court’s attempt to try to stick to a cut off point of the 30 April 2014, reference will accordingly be made to this sum and not the HK$566,446 referred to subsequently. In any event I do not accept that this sum should be “added back” into the schedule of assets. I accept the husband’s primary position on this which is that it was entirely proper for him to pay for those sums in a situation where the parties had been separated since August 2009, he had received a number of bonuses which were arguably “non matrimonial” and he was in a committed relationship with a third party. I agree that in the context of this case these sums could not be said to be inappropriate expenditure.

61. In so far as the husband’s claims for add backs are concerned he asks that there be an add back of HK$15,522 for the alleged “keying” of his jaguar car by the wife and that he be reimbursed for medical expenses in the sum of HK$11,897 that were not reimbursable to him under the terms of the court order dated the 22 June 2012.

62. In so far as the medical expenses are concerned this all goes to whether or not the wife was being paid an appropriate amount of maintenance at the time. This is a small sum. In such circumstances it does not seem to me to be appropriate for that sum to be added back to the schedule of assets.

63. Having reviewed the affidavit evidence in relation to the alleged keying of the husband’s car, I accept on the balance of probabilities that it was more probable than not that the wife was responsible for this rather unfortunate incident. I should add that emotions were running very high at the time on both sides and that there had been a number of physical altercations between the parties. Notwithstanding that I accept that the sum of HK$15,552 (say HK$15,000) should notionally be deducted from the wife’s final award in order to recompense the husband for the damage to his car. However given that the wife accepts that the husband has over paid her by HK$17,204 (see paragraph 53 above) and that these two sums more or less balance each other out, I will not make any final adjustments in this respect.

What weight should be attached to the Single Joint Expert’s Report?

64. The husband requested a single joint expert in order to a) categorise the nature of the wife’s spending with particular reference to her bank accounts and credit card accounts and b) in order to assess her monthly expenditure. The SJE was informed in the joint letter of instruction dated the 9 April 2014 that:-

2. The Petitioner considers that the Respondent has been incurring expenditure in excess of the party’s standard of living during the marriage and beyond what is affordable with respect to income. The Respondent has incurred outstanding liabilities of approximately HK$1.6 million as a result of her spending beyond her income/maintenance. The Respondent holds the view that the Petitioner has failed to pay sufficient maintenance to her and the children since their separation in August 2009.

65. The report was dated the 6 June 2014 and was filed with the court shortly thereafter. It purported to cover the period from late 2010 to February 2014. Unfortunately there were several difficulties with the way in which the report had been complied. Counsel for the wife summarized the situation in her closing submission as follows:-

SJE Report

26. There are obvious flaws in the report produced by Mr W, of particular note is his failure to properly apportion the significant cash spending, the wrong apportionment of other items of spending and the differing periods of time that he has used to arrive at his averages. In addition to this, it covers a period of approximately 9-12 months (end of 2010 to October 2011) when P was paying for many of the household expenses himself directly (ie all utilities). This would therefore result in an artificially lower figure for these expenses.

27. Despite the report’s obvious flaws, principally the fact that it does not include what P was paying direct for household expenses resulting in these figures being lower than they should be, it is of note that Mr W’s overall conclusion is that R’s monthly spending has been on average HK$291,275, a figure that is very close to what she estimated in her Form E at the outset taking account of what P was paying for. It is approximately HK$30,000 more than the income that she was receiving after the 1^st MPS Order when she was still earning and HK$171,275 short of what she has been receiving from P for the last 2½ years under the 2^nd MPS Order. The SJE Report is dealt with further below.

She added:-

SJE Report

51. As set out above, the SJE report was unfortunately lacking in many respects. Firstly a significant amount of cash spending – HK$50,775 per month was wrongly allocated or simply unallocated, distorting the true picture of R’s spending. Without accurately attributing the cash spending to, for example, wet market purchases which would have been consumed more or less equally by the entire household, the SJE inexplicably assigned $20,809.73 to the general household, $28,441.76 to R personally, and merely $1,505.82 to both of the children. Under cross-examination, the SJE admitted that some of the cash expenses assigned to R personally could have qualified for the general household bucket instead. R had provided receipts for as many purchases as possible, and had compiled six box files worth by the time the report was prepared. Most of these receipts related to cash spending. It is clear that very little use was made of these receipts and records to improve the accuracy of designation. The SJE did not ask to meet with R in order to compile his report with greater accuracy, this was a glaring oversight.

52. Secondly, when the SJE encountered bills which he was unable to allocate a category for, he did not consult R, and as a result, there is $15,571.44 per month of unidentified expense. Simple consultation with R may easily have cleared this up. Furthermore, although the SJE pegs R’s jewellery expenses at $10,359.57 per month, he did not know, as R told the Court in her oral evidence, that some of these purchases were in fact made for R’s brother, and that R’s brother would fund R and the children’s expenses in return while they were staying together in the U.S. Therefore, some of the “jewellery” expenses were actually real day-to-day living expenses, and the lack of consultation by the SJE grossly distorts the true picture of spending.

53. Thirdly, the SJE underreports the most basic elements such as her rent, which both parties agree is $62,000 a month. The SJE has stated her rent to be $36,614.89. How such a big discrepancy could come about is very curious indeed, the SJE was unable to provide an explanation for this. The SJE was questioned about how a sum as low as $1,894 per month for utilities was generated in his report when some of the electricity bills alone exceeded that sum. He admitted that he had only included electricity and gas into this sum, not water, internet, or telephone expenses. Additionally, the SJE did not take into account the fact, as set out above, the P had been paying for all utilities until October 2011, when the period examined ran from late 2010 until 2014. The average would therefore be skewed by the period before October 2011 when no expenditure on this category would be found in R’s accounts.

54. Although the SJE report was regretfully not as accurate as one would hope, and R’s input was never sought, it nevertheless shows very clearly that her needs are much closer to the amount stated in her Form E than the amount that P alleges she needs. The SJE report acknowledged that she spent at least $291,275 a month, only a few hundred dollars off R’s estimate in her Form E taking off expense paid by P.

55. Under cross examination P stated that adopting the SJE’s total for R’s average monthly spend was too high as it included unnecessary items that he did not agree with such as jewellery purchases, legal costs and loan repayments. However, even if these items are deducted from the sum of $291,275, the overall total would still be roughly $248,000, almost $100,000 more than the highest sum P had been prepared to offer in these proceedings. It is therefore clear that if a broad-brush approach is taken, the SJE’s report still corroborates far more with R’s position than it does with P’s. It is of note that this is very close to the amount that R is claiming by way of her Open Offer, made before seeing this report in full.

66. I accept the criticisms made by Ms Rattigan with respect to the way in which the report was compiled and its obvious deficiencies. I also accept that in general it goes to support the wife’s case as opposed to that of the husbands. Given the obvious difficulties with the report I do not generally intend to attach very much weight to the individual items of expenditure referred to in it when considering the question of maintenance. In so far as the capital position is concerned, I accept that in general it supports the wife’s case that she got into debt because she had insufficient funds to cover all of her requisite expenditure. The bigger question is whether or not that was justified in the circumstances or whether she should or could have trimmed her expenses so that she was able to live within her means – or alternatively whether she could or should have obtained other remunerative employment.

Should this case be regarded as a “needs based case” or should the sharing principle be applied?

67. In this instance it is the wife’s case that she “needs” a lump sum that vastly exceeds a 50% share of the asset pool once the reimbursable expenses and the debts are taken into account. But in doing so she is only able to articulate what her needs are in very general terms. In her closing counsel for the wife said as follows:-

“given all the circumstances of the case and particularly the fact that P will have the opportunity to build his assets going forward and R will not, it is submitted that is an appropriate case for an award of 60% of the assets to R as she has proposed at page 2 and 3 of her open proposal” [C8/2792-3]

68. With respect this does not appear to me to be a sufficient reason to classify this case in the first instance as a “needs based” case, although I accept as set out below that the issue of needs may then be addressed in the context of the sharing principle.

69. Paragraph 80 - 82 of LKW v DD (FACV no 16 of 2008) 13 HKCFA 537 sets out the correct approach with respect to the “sharing principle” as follows:-

E.4 Step 3: Deciding to apply the sharing principle

80. If surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle (as pointed out by Sir Mark Potter P in Charman v Charman (No 4) cited above). In other words, the court should not make an immediate allocation but should return to “needs” for them to be dealt with alongside all other material factors in the processes described below as Steps 4 and 5.

In the event that this is a sharing case how the assets should be divided?

70. Consequently I accept that the sharing principle should prima facie be adopted, which in this case would mean that both parties will be entitled to approximately HK$5,269,495 of the available assets. I accept that the Phuket property is an asset that can be dealt with now and that in the circumstances it would make more sense for the husband to retain it as part of his share of the assets. As indicated above there is an acknowledged difficulty with the title and further monies will need to be spent on the property to make this “good”. Hopefully this will be easier for the husband to do than the wife. It cannot be easily sold at present. I have also taken on board the fact that the husband’s life policy also accounts for over HK1.2 million worth of assets and again this is an asset which is not liquid and which will form part of the husband’s share of so called matrimonial pot. In addition the husband will retain whatever pensions he has left once the lump sum order is made. These are also largely illiquid.

Should the yardstick of equality be departed from and if so on what basis? Should the issue of the unvested shares/debts and add backs be looked at again in this context?

71. However I also accept that fairness dictates that this is a case where the yardstick of equality should be departed from.

72. In considering this next stage of the exercise I am assisted by the following extract from LKW v DD, when Mr Justice Ribeiro says as follows:-

E.5 Step 4: considering whether there are good reasons for departing from equal division

83. The fourth step therefore involves considering whether good reasons exist for departing from the principle of equal division. Any such departure means increasing or reducing one party’s share and correspondingly reducing or increasing the share of the other. The question for the court is whether the balance ought to be shifted from a point of equality to some other point in the circumstances of the case. This is necessarily a complex question which raises a range of separate issues.

84. What then are potentially good reasons for such a departure? The answer is to be found in the terms of section 7 and the implicit objective of a fair distribution of the assets. Any of the matters listed in paragraphs (a) to (g) of section 7(1) may provide an appropriate reason, as may the “conduct of the parties” and “all the circumstances” referred to in section 7(1). The catch-all category of “all the circumstances” makes relevant any matter which bears on the fairness of the financial outcome in a matrimonial context.

85. It is important to stress that while such factors, individually or cumulatively, are potentially capable of resulting in a departure from an equal division, a finding that one or more of those factors are engaged does not necessarily mean that a departure must occur. The weight to be given to such factors is in the court’s discretion to be exercised in Step 5 as described in Section E.6 below. It cannot be over-emphasised that the matter is fact-specific and discretionary. The sharing principle must not be mechanistically applied.

73. Turing next to the s 7 factors for guidance and in particular in the context of this discussion sub section a), b) c), and d)

(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;

The wife’s earning capacity

74. In this instance the wife’s earning capacity has been a pivotal point in the case. The wife is a well educated woman with undergraduate and post graduate degrees. She historically worked in the management side of banking and as stated above was working up until December 2011 when she was made redundant. The husband makes a persuasive argument in support of his case that the wife engineered her own redundancy in his closing argument as follows:-

46. It is the Petitioner’s case that the Respondent took voluntarily redundancy in December 2011.

47. It is important to consider the context of the proceedings and the immediate history to the Respondent’s purported termination of employment in December 2011.

48. Following the Respondent’s failure to proceed with her own Petition the Petitioner filed his own petition on 8 September 2011 on the basis of 2 years separation [P4/1150].

49. On 22 September 2011 the Respondent filed her application for leave to permanently remove the children of the family from Hong Kong to the United States of America [P2/514].

50. On 20 October 2011 there was a physical altercation between the parties at access changeover with the Respondent scratching the Petitioner’s arms and drawing blood [C2/336].

51. On the 21 October 2011 the Petitioner’s undertaking not to have access to the children in the presence of Ms V expired [P2/478].

52. On 4 November 2011 the Court heard the MPS application and gave a ruling on MPS and the costs of the dismissed divorce suit on 21 November 2011 [P4/1290].

53. The Respondent ‘keyed’ the Petitioner’s Jaguar [C2/438] on 17 November 2011. On the same day the Respondent gave 2 months’ notice to the [flat] Landlord concluding “My Husband H I lost his job. We will be moving back to California in January next year.” [C2/453].

54. In her email to the Petitioner of 22 November 2011 the Petitioner said “HK is not home. We’re only here because it was a neutral place to have our family when we started. That family isn’t here anymore.” [C2/484].

55. On 30 November 2011 the Petitioner obtained an Ex Parte Stop Order preventing J and S being removed from Hong Kong [P4/1361].

56. The termination letter from [the bank] [C2/468] is dated 9 December 2011.

57. The termination letter states the Respondent’s employment was to cease on 30 December 2011 and that the Respondent would be on Garden Leave from 17 December 2011.

58. It was put to the Petitioner in cross-examination that the Respondent had been asked to stay on in her role as an administrator which was why she was not asked to leave the office immediately; this was never part of the own Respondent’s own evidence either written or oral.

59. The reality of the situation in late 2011 was that:-

i) The Petitioner had filed his own Petition.

ii) The Petitioner would be able to have access to the Children in the presence of Ms V.

iii) The Respondent had applied to permanently relocate from Hong Kong to the United States.

iv) The Respondent gave notice on her and the Children’s accommodation in Hong Kong.

60. It was therefore entirely logical, from the Respondent’s perspective and position in late 2011, to bring her employment to an end, as she had similarly done with her and the Children’s accommodation in Hong Kong, she was after all planning to relocate to the United States.

75. It is clear that this was a time of great emotional upheaval for the wife and the family as a whole. Thus although I accept that the wife may not have been overly disappointed when she was made redundant and may even have welcomed it, I do not accept that she deliberately set out to orchestrate it. I am also conscious of the fact that this was not a case of a career woman suddenly being made redundant after a long and successful career in banking. The wife had not pursued a career throughout the marriage; she had not worked for 7 years or so while the children were young and she went with the husband to Singapore for two years during this period. In other words she supported the husband in his career choices at that time. It was the wife’s evidence that when she returned to the workforce that she did so through some personal contacts and that she had been fortunate in that respect. I accept what she says in that regard.

Should she have made more of an effort to then go back to work?

76. The husband argues that the wife should have returned to work and that she has deliberately chosen not to do so. With respect I think that is to oversimplify the issue. The wife is now 52 years old. Both parties have been involved in ongoing litigation for over 4 years. The proceedings have been extraordinarily contentious. The wife wishes to relocate back to the United States and therefore before the relocation judgment was handed down I can understand that it made little sense from her perspective to seek alternative employment in Hong Kong. Even after the relocation judgment was handed down she still clung to the possibility of relocating on the premise that this would be better for S educationally. I also accept that she has had some health issues which may also have made a job search somewhat difficult. It is also true to say that she has found it extremely hard initially to come to terms with the end of the marriage – although I believe that she has now done so.

77. All in all I accept that it was not really feasible for the wife to return to work before now. As things stand there are some very serious issues to be resolved regarding J which makes a return to the workforce unlikely in the immediate to short term.

78. Longer term I accept that the wife does have a significant earning capacity and one that she will need to realize in the event that she wishes to enjoy the same standard of living that the parties had enjoyed during the marriage. She could return to banking. She has talked about retraining as a special needs teacher. She also has other skills which she could utilize. I accept however that it is unlikely that she will be able to return to the workforce in any meaningful capacity for at least a year or so – perhaps longer depending on what happens with J. Even then I accept that her earning capacity is always likely to be significantly lower than that of the husband’s.

The husband’s earning capacity

79. In contrast the husband has a very significant earning capacity. His base salary is currently HK$280,000 per month and he is also entitled to cash bonuses and shares on an annual basis. Mr. Egerton submits that the court should put the husband’s cash bonus no higher than HK$1 million per annum. It should be noted however that historically the husband has received the following cash bonuses:

i)	2009 Calendar Year:	HK$1,710,100.00
ii)	2010 Calendar Year:	HK$656,471.59
iii)	2011 Calendar Year:	HK$112,053.56
iv)	2012 Calendar Year (new employ):	HK$2,250,000.00
v)	2013 Calendar Year (new employ):	HK$2,500,000.00
	Total	HK$7,228,625.25

80. The husband says, and I would accept this, that there have been very particular reasons why he has been able to receive such significant cash bonuses in the more recent past. I accept that this may not continue going forward.

Other financial resources

81. As indicated above the husband also has other very significant financial resources that are available to him namely the shares that he will continue to receive and that will continue to vest on a rolling basis. Although I accept that these should not be divided between him and the wife as of right, I also accept that these shares may need to be called upon by the husband going forward.

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

82. In general terms both parties need sufficient money to house, feed and clothe both themselves and their children. They will also need to provide for J and S’s future education. This may include boarding school fees for J in the relatively short term.

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

83. This is a very contentious issue. As indicated above although in general terms it is accepted that as far as possible the standard of living of both parties should be maintained post divorce, it is also understood that often this is very difficult if not impossible to achieve. Consequently it is generally the case that both parties standard of living will of necessity come down post divorce. That is the case here.

(d) the age of each party to the marriage and the duration of the marriage;

84. As indicated above the wife is 52 and the husband is 44 years of age. The wife has been out of the workforce this time around for nearly three years. The parties were married for 11 ½ years.

Should the issue of the debts, reimbursements, add backs and unvested shares be looked at again in the context of a departure from an equal division of the assets?

85. As indicated above I accept that the wife has accumulated debt partly because she did not have sufficient maintenance with which to support both herself and the children. However I also accept that she did not choose to reduce her expenditure to a more manageable level. Thus it seems to me that repayment of some but not all of that debt is a valid reason to depart from an equal division of the assets. Thus the wife shall receive an additional sum of HK$820,750 in order to partly repay her debts – i.e. approximately 2/3 of the outstanding debts. She will need to meet the rest from her share of the assets. In addition I accept, and this is borne out by the SJE report, that she owes her landlord some outstanding rent. She seeks just over HK$250,000 in that respect. I will allow this sum also. Thus the wife will receive an additional HK$1,070,750 on top of the proposed asset split. The wife will need to settle the remainder of the debts from her share of the assets. The husband asks that an additional sum of HK$200,000 be taken into account – this being a sum of money advanced to the wife at the end of the first tranche of the trial so that she and the children could go on holiday over the summer. This will not be deducted. I accept the submission made by counsel for the wife that this was not originally referred to in the schedule of assets and appears to have been something of an afterthought. In any event this money could perhaps be better described as advanced maintenance as opposed to an advanced capital sum. There will be no additional adjustment for the reimbursements claimed by the wife or for the add backs on either side save for the sum of HK$15,000 to be added on the husband’s side of the equation for the so called “keying incident”.

What is an appropriate division of assets in the circumstances?

86. Thus the wife shall be entitled to a lump sum of (HK$10,538,990 divided by 2) = HK$5,269,495 + HK$820,750 + HK$250,000 = HK$6,340,245. This is just over 60% of the assets.

87. In coming to this assessment I am aware that the husband does not have the available liquid assets to pay for all of these sums in one go and that therefore it will be necessary for him to rely on the unvested shares to some degree. Although the husband originally offered a lump sum payment in excess of this sum and by two tranches – I am aware as stated above that he has had to liquidate some further assets in part because of J and that consequently it is unlikely that he will be able pay as originally planned.

How much maintenance should the husband pay to the wife for herself and the children going forward?

88. I have been through the arithmetical exercise and in order for both parties to have an acceptable standard of living significant compromises will need to be made on both sides. It is of course imperative that funds are made available so that all essential expenses are covered for both children.

89. As indicated above the husband currently earns a base salary of HK$280,000 per month. Mr Egerton for the husband asks me to proceed on the basis that the husband’s anticipated cash bonus will be in the region of HK$1 million. Although I accept that the bonus might infact be worth a great deal more than that I also accept that these sums are not guaranteed. Therefore for present purposes I am prepared accept that the husband’s income will most likely be in the region of HK$365,000 per month (HK$280,000 + (HK$1,000,000 divided by 12 = HK$83,333) = HK$365,000 rounded up). Although it could be argued that the husband’s cash bonuses are also post separation accruals, the reality is that necessity dictates that the cash bonus will need to be relied upon in addition to the husband’s base salary. There is though the possibility that his monthly income could be as much as HK$488,000 per month (HK$280,000 + (HK$2,500,000 divided by 12 = HK$208,333) = HK$488,000 rounded down). Ms V is said to earn in the region of HK$113,000 per month and therefore the husband’s household income, put at its lowest, is going to be at least HK$478,000 per month rising possibly to HK$600,000 per month. I do not know if Ms V receives an annual bonus on top of her salary.

90. The husband says he has outgoings of just under HK$420,000 per month. This includes maintenance of HK$120,000 per month and expenses for the children.

91. In her most updated Form E the wife puts her expenses at just over HK$316,600 per month. In her open offer she seeks approximatelyHK$235,000 per month. The husband offers HK$110,000 per month although he acknowledged in court during cross examination that the wife “needed” HK$153,000 per month. As I have said his position is that the wife should provide the shortfall by returning to work and earning the difference.

92. Each party’s respective positions in relation to the wife’s maintenance are helpfully encapsulated in the table set out below that was attached to a letter from the husband’s solicitors dated the 6 August 2014:-

M and Children’s Estimated Monthly Expenses 4.1 General
Item	M’s Form E dated 10.06.2013 (HK$)	M’s Open Proposal (HK$)	Petitioner’s Proposal (HK$)
Rent – H.K.	62,000	62,000	50,000
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone & water)	12,000	12,000	1,894
Management fees	N/A
Food	18,000	18,000	7,754
Household expenses (dry clean, finance charge, water, internet, phones)	12,656	6,000	2,500
Car expenses (Petrol, toll, car)	9,000	9,000	5,000
Insurance premia	900	900	900
Domestic helper(s)	17,000	7,000	4,500
Others (specify) – car maintenance / registration	10,000	10,000	3,000
Club membership – American Club Annual rental fee of HK$36,000 Monthly Subs HK$1,800		4,800	4,800
Total monthly household expenses	141,556	129,700	80,348

4.2 Personal
Item	M’s Form E dated 10.06.2013 (HK$)	M’s Open Proposal (HK$)	Petitioner’s Proposal (HK$)
Meals out of home	7,000	7,000	7,000
Transport	600	600	600
Clothing / shoes	10,000	10,000	10,000
Personal grooming (including haircut and cosmetics)	5,500	5,500	5,500
Entertainment / presents	2,000	2,000	2,000
Holidays airfare / meals on travel / shopping for myself alone	11,800	11,800	5,000
Medical / dental (premium only, does not include actual expenses)	7,200	3,280	3,280
Tax for US account	8,200	833	833
Insurance premia life / accident	9,828	-
Interim maintenance	TBD
Contribution to parents	N/A
US Taxes / HK taxes	16,250	?
Other (specify) fitness, membership, personal clubs	3,000	2,400	0
Total monthly personal	81,378	43,413	34,213

4.3 Children
Item	M’s Form E dated 10.06.2013 (HK$)	M’s Open Proposal (HK$)	Petitioner’s Proposal (HK$)
School fees	Petitioner to pay in full 15,250 for S only	-
Extra tuition fees	Petitioner to pay in full 4,500 for S only	-
School books and stationery / computer	Petitioner to pay in full 5,000 for S only	-
Transport to school (including school bus)	200 for S only	-
Medical / dental expenses. Petitioner to provide full medical and dental coverage for Suzy	6,000 for S only	-
Extra Currricular Activities for Suzy only – tutors Sepcialist – 8k, gavik 9.6k, Chinese 1,920 ballet 1,800, piano, gymnastics, kumon	21,320 for S only	-	5,000
Entertainment / presents		5,000	2,000
Holidays for both kids (airfare, food, incremental)	31,500 to be paid in full by Petitioner	23,600	10,000
Clothing / shoes	6,000	6,000	3,000
Insurance premia	To be covered in full by Petitioner for 1st family (2 kids any myself)	-
Lunches and pocket money	800 + 250	1,050	1,050
Other Transport		6,600	2,000
Child-minding fees
Uniform	350	-
Other (specify) Cricket Club	350	-
Total monthly expenses for children	93,670	42,250
Total monthly expenses (4.1 + 4.2 + 4.3)	316,604	215,363

I have highlighted in bold and italics those areas where the parties are in dispute.

93. In general though I accept that the husband has an income of approximately HK$365,000 per month out of which provision will need to be made for his share of his household expenses, the children’s expenses and the wife’s household expenses. There is also an obvious difficulty now in that I do not know the financial ramifications of J’s present situation.

94. If both parties are to live on HK$365,000 per month then economies will need to be made, both in terms of rental, food, the employment of one domestic helper and not two, (or one domestic helper and a driver on the wife’s case), holidays and their own personal expenses. Of course the husband will also have the benefit of Ms V’s income coming into his household – but Ms V also has her own financial responsibilities with respect to I and her own expenses to cover including her tax etc. On the husband’s case she presently contributes to the general household expenses.

95. From the wife’s perspective she too will need to make some hard choices. Should she retrain and commence work as a special needs teacher where the pay is a lot lower than in the banking field, or should she return to work in an area that she knows better. She will also have a significant cash sum available to her post settlement which she can utilize in part to support her monthly needs – if she so chooses. It is a matter for her.

96. Ms Rattigan for the wife argued persuasively that the wife’s estimates for expenditure should be maintained in a variety of different areas – such as housing, food, holidays etc. I will go through these below. However – simply put it is clear to me that on the face of it that the husband simply cannot afford to maintain the wife at the standard sought.

What then would be an acceptable level of expenditure in each household?

97. The husband’s sets out his expenses in his latest Form E as follows:-

Part 4 Current Monthly Expenses 4.1 General
Item	Amount	H’s Share
Rent	HK$75,000	HK$50,000
Mortgage instalments	HK$	HK$
Utilities (electricity, gas, rates, telephone, mobile & water)	HK$8,000	HK$6,000
Management fees	HK$	HK$
Food	HK$12,000	HK$10,000
Household expenses	HK$1,500	HK$1,200
Car expenses	HK$9,300	HK$9,300
Insurance premia	HK$	HK$
Domestic helper(s)	HK$9,000	HK$5,000
Other (specify): NOW Broadband / TV / Phone for Repulse Bay - $1,500 (will stop at end of contracts by end 2013) Phuket - $9,000 HKCC - $4,500	HK$15,000	HK$15,000
Total monthly household expenses Attach copies of the latest rental receipt.	HK$129,800	HK$96,500

4.2 Personal
Item	Amount
Meals out of home (daily lunch, coffee, dinner 2-3 times per week)	HK$15,000
Transport	HK$500
Clothing / shoes (increase as no casual dress at work in new job)	HK$6,000
Personal grooming (including haircut and cosmetics)	HK$1,500
Entertainment / presents (gifts / theatre / concerts / books / magazines / movies etc previously under other, also under counting of family gifts etc)	HK$10,000
Holidays (expense slightly higher as not able to book and plan long in advance)	HK$7,500
Medical / dental (non-covered dental, therapists, physio)	HK$4,000
Tax	HK$65,625
Insurance premia	HK$5,900
Interim maintenance	HK$120,000
Contribution to parents	HK$
Dependent family members	HK$
Other (specify): Pension contribution (12,500) Gym membership (Pure – 1,797)	HK$14,297
Total monthly personal expenses	HK$250,322

4.3 Children
Item	Amount
School fees	HK$31,645
Extra tuition fees (S)	HK$9,600
School books and stationery	HK$1,000
Transport to school (including school bus and taxi to / from after school events)	HK$3,000
Medical / dental (significant expense on J’s medication, orthodontic work and other non-covered medical expense – ADHD not covered by insurance)	HK$6,000
Extra Curricular Activities (J’s baseball, sailing, cotillion, S’s horse riding)	HK$5,000
Entertainment / presents	HK$5,000
Holidays	HK$6,000
Clothing / shoes	HK$3,000
Insurance premia	HK$
Lunches and pocket money	HK$1,500
Other Transport	HK$
Child-minding fees	HK$
Uniform	HK$
Others (specify):	HK$
Total monthly personal expenses for children	HK$61,745
Total Monthly Expenses (4.1 + 4.2 + 4.3)	HK$418,567

98. Turning next to the wife’s arguments in relation to the items disputed by the husband in her list of expenses

a) Housing

The husband has consistently offered the wife HK$50,000 for her housing although he knows that her current rent is HK$62,000. His primary case is that that is a more reasonable figure given the original order for shared care of the children. The husband had initially moved into Baguio Villas following the separation where his rent was HK$28,000 per month. Recently he moved and the rent is now HK$75,000 per month. He says that he is paying HK$50,000 of that and that Ms V pays the rest. During the trial the husband explained his rationale for this increase on an “expense per head” basis. I don’t intend to go into this now. Suffice it to say that I accept that the husband’s standard of living has increased significantly since the separation. I am also reluctant to reduce the wife’s rental cost especially given the present upheaval within the family and the fact that S’s school place at the ESF has not yet been confirmed. I will therefore allow both parties a notional figure of HK$62,000 for rent – out of which the husband should contribute 2/3 as he does at present or HK$43,400. If the husband and Ms V wish to remain in their present flat then Ms V may have to pay more for this expense going forward.

b) Utilities and household expenses

The wife claims HK$12,000 per month and the husband offers HK$1,894 per month for utilities. This was an area of the SJE’s report that was particularly unhelpful. In his own updated Form E the husband puts his utility expenses for his household at HK$8,000. This was on the premise that it also included phones, internet etc and that therefore there was some interplay with that and the estimate for household expenses at HK$1,500. Ms Rattigan points out therefore that the husband is estimating a total for HK$9,500 for these expenses. It seems that the wife is seeking HK$18,000 for both. This seems excessive. I will allow HK$6,000 per month for each side.

c) Food

The wife claims HK$18,000 under this head and the husband offers HK$7,754 based on the SJE’s report. Again I did not find the SJE very helpful in respect to this item and I accept that many cash items were not included in this amount. By the same token the wife’s estimate of HK$18,000 per month – although a consistent figure throughout the proceedings and one that the husband originally accepted, seems high. The husband’s estimate for food is HK$12,000 per month for his household. Going forward I will allow each side HK$8,000 per month.

d) Car and car maintenance/registration

The wife seeks HK$19,000 per month under this head in total, which even taking into account the fact that she has purchased a new car and that the HP agreement is HK$5,500 per month, seems excessive. The husband’s estimate for his own car expenses, without the HP agreement is for HK$9,300 per month. The wife’s original estimate was HK$9,000 per month which included the cost of a car loan. I will allow HK$9,500 each for all car expenses. In doing so I have noted that S now gets the school bus in the mornings.

e) Domestic helper and driver

The wife argues that she needs a driver primarily in order to take S to and from school and also to take her to her various after school activities. The difficulty with that argument is that it is accepted that the family only had a driver when the wife was working. She is not working and thus a driver is an unjustifiable expense at present. The wife has one domestic helper and the husband has two, I will allow HK$7,000 under this head for each household on the premise that they each have one domestic helper each.

f) Wife’s holidays

This has also become a huge bone of contention between the parties. It is accepted that during the marriage the parties regularly visited the UK and the States to visit family and friends and that they also went to their house in Phuket on a regular basis. The wife seeks HK$11,800 per month or HK$141,600 per annum for herself for holidays. I accept that this is excessive and not in line with the standard of living enjoyed by the parties during the marriage. The husband estimates HK$7,500 per month for his own holidays. Going forward I will allow each side HK$5,000 per month for themselves for holidays and in addition HK$2,500 per month each for the children.

g) Gym’s and clubs

The wife seeks a club for her and the children’s use during the weekends. The husband agrees to contribute the sum of HK$4,800 so that she can rent a club membership at the American Club. I accept that this is reasonable in the circumstances and will enable the wife to access club facilities during the week. I also accept the husband’s evidence that it would be possible for the wife to purchase a club membership at P Club for HK$40,000. This is a capital expense and I accept that it is a matter for the wife to decide whether to spend part of her share of the capital award on the purchase of a debenture or club membership. In that event the allowance of HK$4,800 would need to be utilised for monthly chits and other expenses. I will allow the husband’s expense of an additional HK$1,800 per month for a gym. Given that the wife is not working she should be able to use the gym at the American Club. I will not allow a further sum of HK$1,800 for that purpose.

h) S’s expenses

In general the husband proposal is set out in his solicitor’s letter of the 6 August 2014.

Further, we confirm that, the Petitioner proposes he pay the following amounts direct for S:-

1.	School Fees	$12,250
2.	Extra tuition	$8,300
3.	School books	$500
4.	School Bus	$1,250
5.	Medical / dental	$3,000
6.	Uniform	$200
7.	Total:	$25,500

i) S’s school transport

The issue of the school bus has now been resolved and S goes by bus to school in the morning. Both parents are responsible for S’s pickups when she is with them. This largely been allowed for in the cost of the car and car maintenance/registration referred to above and other transport below.

j) S’s extracurricular activities

The husband will pay HK$8,300 directly for S’s extra tuition. In addition he offers HK$5,000 per month to cover further items whereas the mother seeks HK$21,320 per month. I will hold the father to his undertaking to pay for the extra tuition directly. A further HK$5,000 will be provided for S’s extracurricular activities and it will be for the wife to budget within this sum. The same amount of money will be allowed for J, but on the premise that the wife is now responsible for those payments.

k) J and S’s holidays

The husband claims HK$6,000 under this head whereas the wife seeks a staggering HK$23,600 per month or HK$283,200 per annum. I will allow HK$2,500 per month each. This should cover the cost of a return flight to the United States or the United Kingdom plus one short haul holiday per annum.

l) J and S’s entertainment and presents

I will allow HK$2,000 per month under this head.

m) J and S’s wardrobe

I will allow HK$5,000 per month under this head.

n) J and S’s other transport

I will allow HK$3,000 under this head – to include the additional costs associated with getting S back from school on days that she is with the wife.

0) Insurance and tax

This is a new proposed expense and will not be allowed. It is for the wife to make whatever arrangements with respect to this matter as she thinks fit in the circumstances. I will deal with the issue of the husband’s insurance below. The wife also asks that her maintenance be equalised for US tax. However no expert evidence was produced in this respect. It is simply referred to in her open submission. Consequently I am not in a position to take this aspect of her case any further.

99. Thus I intend to make an order allowing each side the following:

4.1 General
Item	Husband	Wife
Rent – H.K.	43,400	62,000
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone & water)	6,000	6,000
Management fees	N/A
Food	8,000	8,000
Household expenses (dry clean, finance charge, water, internet, phones)	Nil	Nil
Car expenses (Petrol, toll, car)	9,500	9,500
Insurance premia		900
Domestic helper(s)	7,000	7,000
Phuket	(9,000)
Club membership and subs and chits	4,800	4,800
Total monthly household expenses	78,700	98,200

(Please note that I am proceeding on the basis that any expenses for the Phuket property will be covered by its rental income).

4.2 Personal
Item	Husband	Wife
Meals out of home
Transport	15,000	10,000
Clothing / shoes
Personal grooming (including haircut and cosmetics)
Entertainment / presents	2,000	2,000
Holidays airfare / meals on travel / shopping for myself alone	5,000	5,000
Medical / dental (premium only, does not include actual expenses)	4,000	4,000
US accountant		833
HK tax for husband	65,625	-
Insurance premia	5,900
Pension contribution	12,500
Gym membership	1,800
Total monthly personal	111,825	21,833

4.3 Children – in addition to the husband’s undertaking
Item	Husband	Wife
School fees	12,500 Undertaking
Extra tuition fees	8,300 Undertaking
School books and stationery / computer		500
Transport to school (including school bus)	Undertaking 1,250
Medical / dental expenses. Petitioner to provide full medical and dental coverage for S	Undertaking	3,000
Extra Currricular Activities		10,000
Entertainment / presents	2,000	2,000
Holidays	5,000	5,000
Clothing / shoes		5,000
Other Transport		3,000
Uniform		200
Total monthly expenses for children	29,050 (including undertaking)	28,700
TOTAL			HK$368,308

100. As will be noted above I have significantly reduced each party’s personal expenditure out of necessity. I have allowed the husband HK$5,000 per month more because he is working and he will additional funds to pay for lunches, work clothes etc. These figures also do not include J’s school fees. Provision will also need to be made for either his school fees in Hong Kong or his boarding school fees plus any related expenses. I will allow for this in the court order in so far as it relates to his immediate to short term needs.

101. There has been a huge issue in this case with respect to reimbursable expenses. Consequently I will hold the husband to his undertaking only in so far as it relates to the school fees for S, payment of S’s extra tuition costs, medical and dental expenses that are covered by his medical insurance and payment of her school fee bus. The mother will receive the remainder of the funds in the sum of HK$3,700 related to his undertakings in cash plus an additional HK$22,500 per month to cover the children’s actual expenses.

102. In so far as the general expenses are concerned I will attribute 1/3 of these to J and S each on the premise that eventually J will most likely be based with his mother and that this is likely to be the most tax effective way to proceed. Thus there will be an order for maintenance for J an S in the sum of HK$46,000 per month each. The maintenance for the mother will be set at HK$56,500 per month. Thus in total the husband shall pay maintenance in the sum of HK$148,500 per month.

What if the husband’s cash bonus is in excess of HK$1 million?

103. Notwithstanding the argument that the husband’s cash bonus is a post separation accrual, it seems to me that there would be an obvious inequity here if the husband received a significantly enhanced cash bonus in the immediate to short term which meant in turn that the wife’s standard of living was reduced but not the husband’s. Thus I will order in that event that the husband shall pay to the wife an additional 50% of any cash bonuses received for the year ended 2014 and 2015. Thereafter I will expect the wife to have returned to work in some capacity and to be contributing towards her own outgoings.

Section 7 factors not referred to above

(e) any physical or mental disability of either of the parties to the marriage;

104. Thankfully this is not in issue.

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

105. I accept, as at the time of the trial that both parties have each made a full contribution.

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

106. This has been dealt with above.

What should the final decision be?

107. On the 17 October 2014 the court received a letter from the husband’s solicitors stating that the husband had liquidated a further HK$500,000 from his F fund to meet J’s ongoing legal fees and his own legal costs. I am also very conscious that J’s future needs, whatever they might be, should as far as possible be appropriately catered for.

108. Consequently as things stand there is approximately HK$5.5 million in the F fund. The husband will also receive approximately HK$880,000 on the 3 December, being the next tranche of vested shares and a further HK$540,000 on the 7 July 2015 being the next tranche thereafter. The additional stock referred to under 4 (e) does not vest until 2016 and 2017.

109. I will therefore make an order that HK$5 million shall be paid to the wife within the next 28 days from the F fund. The balance of HK$500,000 shall be paid into court in order to cover any potential school fees and other related expenses for J in the immediate to short term. The husband shall retain the HK$880,000 and HK$540,000 from his vested shares. Two further sums of HK$670,122.50 each shall be paid to the wife on or before the 1 January 2016 and 1 January 2017. These payments, along with any potential additional payment from the additional cash bonus shall be in full and final settlement of the wife’s capital claims.

110. The husband has undertaken to meet certain of S’s expenses directly. I will hold him to that undertaking only in so far as it relates to her school fees, extra tuition fees not to exceed HK$8,300 per month, the school bus fees and those medical and dental expenses covered by his medical insurance. The wife has complained that the husband pays the maintenance in tranches at the beginning of each month. This will need to be corrected and going forward the husband will need to pay the sum of HK$148,300 in full by direct debit on the 1^st day of each month.

111. The husband also undertook in the court order dated the 18 November 2013 to maintain the existing HSBC insurance policy no XXXXXXXX. I will release him from that undertaking.

The order

Therefore I will make an order as follows:

UPON the husband undertaking to continue to pay for S’s school fees, extra tuition fees not to exceed HK$8,300 per month, the school bus fees and her medical and dental fees to the extent that they are covered by his medical insurance. His undertaking to pay for J’s medical and dental fees to the extent that they are covered by insurance shall continue.

AND UPON the husband being released from his undertaking to maintain the existing HSBC insurance policy no XXXXXXXX.

IT IS ORDERED THAT

1. There shall be a transfer of property order in relation to the Phuket property such property to be transferred from the joint names of the parties into the sole name of the husband, to take effect within the next three months.

2. The husband shall pay to the wife a lump sum of HK$6,340,245 in three tranches namely HK$5 million to be paid within 28 days and two further tranches in the sum of HK$670,122.50 each to be paid on or before the 1 January 2016 and on or before the 1 January 2017.

3. The husband shall pay to the wife an additional sum representing 50% of his annual cash bonus in excess of HK$1 million for the years ending 2014 and 2015.

4. The husband shall pay the sum of HK$500,000 into court within the next 28 days – such sum to be ear marked for J’s immediate educational needs.

5. The husband do pay to the wife periodical payments for herself in the sum of HK$56,500 per month first payment to be made on the 1 day of November 2014 and subsequent payment to be made on the 1^st day of each succeeding month, such payments to be made at the same rate and in the same manner during the joint lives of the parties or until the wife’s remarriage, whichever is the shorter, or until further order.

6. The husband do pay to the wife periodical payments for the two children of the family in the sum of HK$46,000 per month each first payment to be made on the 1^st day of November 2014 and subsequent payments to be made on the 1^st day of each succeeding month until each child’s 18^th birthday or cessation of full time education, whichever is the later or until further order.

7. The division of capital as set out in paragraphs 1 above shall be in full and final settlement of the husband’s claims for all forms of ancillary relief and the division of capital in paragraphs 2 and 3 above shall be in full and final settlement of the wife’s claims for capital ancillary relief.

8. There shall be liberty to apply on an urgent basis

9. Costs shall be reserved for argument.

112. It is further ordered that the Court order dated the 22 June 2012 shall be discharged and the parties be released from their undertakings contained therein.