庾 v. 劉

FCMC 2567/2019

[2022] HKFC 96

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2567 OF 2019

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DECISION

( Maintenance Pending Suit )

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BACKGROUND

1.  This is an application by the Petitioner Wife (“W”) for maintenance pending suit (“MPS”) seeking a sum of $25,510 per month for herself.

2.  W and the Respondent Husband (“H”) started dating in 2006 and were married in 2007 in Hong Kong, they have a daughter who was born in 2010.

3.  W filed a petition for divorce on 8 March 2019. By Consent Summons filed on 21 April 2020, W and H were granted joint custody of the daughter, with care and control to H and defined access to W.

4.  W and H were born in 1970 and 1968 respectively. W was a housewife during the marriage until November 2017 where she started working as a sushi maker at a restaurant. H at all material times has operated an engineering company founded by himself.

5.  Before the breakdown of their marriage, the family lived in the property registered under W’s sole name in Tai Wai (“the Tai Wai Property). W moved out of the Tai Wai Property after separation. H and the daughter are still living in the Tai Wai Property.

6.  There is a property registered in H’s name in Tai Kok Tsui (“the TKT Property”) currently rented to his friend.

ADDITIONAL BUNDLE

7.  H lodged with the Court an Additional Bundle without seeking leave or consent of W. I accept W’s complaint that it was not fair for H to rely on it especially when W did not have the opportunity to properly refer to the contents therein in her submissions. Accordingly, the Additional Bundle lodged by H will not be considered in this application.

LAW

8.  Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) for maintenance pending suit provides that the court may make an order for such periodical payments for maintenance and for such term it thinks reasonable.

9.  It is trite law that such applications are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a full ancillary relief hearing when there is then the opportunity to achieve fairness by means of set off. If there is any overpayment or underpayment, it can be rectified at a final ancillary relief hearing.

10.  The following principles were set out in the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

c.  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

d.  Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay. The Court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such situation, the Court should err in favour of the payee.

MARITAL STANDARD OF LIVING

11.  W was a housewife during the marriage until November 2017. H used to pay W HK$20,000 per month during the marriage and W would be responsible for paying family expenses, utilities and rates. H stopped paying the HK$20,000 after July 2018.

12.  The gross area of the Tai Wai Property is around 1,100-1,200 square feet with clubhouse facilities. The family had a domestic helper and a car.

13.  W’s case is that the marital standard of living during marriage was of an average middle-class. I agree.

PARTIES’ CASES

14.  Parties have made numerous factual allegations against each other concerning their conducts and events leading to and after their separation. These are not matters considered to be relevant to this application and therefore will not be discussed herein.

15.  W and H signed a divorce agreement in November 2018, but W denies it was signed voluntarily by her.

16.  There is no dispute that H transferred HK$300,000 to W in March 2019. H purported that the transfer was made pursuant to the divorce agreement, W disagreed and contended that the transfer was inconsistent with the terms of the divorce agreement.

17.  The matters concerning the divorce agreement obviously should and can only be dealt with at trial.

18.  H has launched various attacks on W’s evidence for material non-disclosure.

19.  H also complained about non-disclosure of bank accounts of Dah Sing Bank and a bank in Mainland China in her Form E.

20.  W explained that the Dah Sing Bank account was closed in April 2019 and the bank card thereof was kept by H. For the Mainland bank account, she could not go to the Mainland to retrieve the relevant bank records due to the pandemic.

21.  While I do not consider the explanation given by W to be entirely satisfactory, it would still be pre-mature based on the present materials to draw any conclusion or adverse inference against W at this stage.

22.  H further questioned the genuiness of W’s loan from her sister by relying on the inconsistencies in W’s answers on repayments. I find it hard to deal with these allegations on papers.

23.  There are other allegations of H that W took, hid or disposed of family assets, they also have to wait until trial for determination.

24.  W, on the other hand, questioned H’s alleged financial difficulties due to suspicious transactions or deposits and how H decided to repay certain loans after commencement of the divorce proceedings.

25.  Again, this is not the proper forum to deal such allegations raised by W at this stage.

W’S REASONABLE NEEDS

Rent

26.  W claims HK$17,000 for a flat about 400 square feet in Tai Wai close to her workplace.

27.  W initially moved out of the Tai Wai Property to her son’s public housing unit and is now currently staying at a guesthouse at a rent of HK$6,000 per month.

28.  W explained that she is not a registered resident of her son’s public housing unit and she would not want to disturb her son’s life.

29.  H questioned whether W was really staying at the guesthouse as W was inconsistent in reporting her address in previous affirmations and records.

30.  H also attacked the authenticity of the rental receipts produced by W by reason of how they were numbered and handwriting thereon.

31.  However, I am of the view that where W actually resided and authenticity of the rental receipts are not matters that can be decided on affirmations at this stage. These matters should be dealt at trial.

32.  In any event, I accept that W has a need for accommodation. I, however, do not accept that W should be entitled to the claimed amount of HK$17,000.

33.  In my view, it is reasonable for W to continue staying at the guesthouse. I have considered the marital standard of W during marriage. The social unrest and pandemic have affected Hong Kong society in general. H’s company, from its records, can be seen to be performing worse than before. Further, when a household is split into 2, one cannot always expect each of 2 households to maintain their exact same standard of living. Guesthouse is a viable option when W is living alone.

34.  I will allow HK$6,000 to be the reasonable amount for rental at this stage. This amount is subject to any adjustment that will be made after trial.

Food and Meals Out of Home

35.  W claims HK$4,000 and HK$1,500 for food consumed at home and out of home respectively. H proposed HK$3,000 in total.

36.  My view is that HK$3,500 should be reasonable in total.

Utilities and Household Expenses

37.  W’s figure is HK$5,000. H submitted that it is exaggerated for 1 person, I agree with H’s proposed figure of HK$2,000.

Rates for Tai Wai Property

38.  W seeks HK$1,300. H explained that he used to pay for this item, he neglected to pay it simply because W changed the correspondence address with Rating and Valuation Department.

39.  H is the one responsible for making the mortgage payment of and occupying the Tai Wai Property, he should be the one also paying for the rates and he apparently is willing to do so. Accordingly, there is no need for me to allow this item.

Transport

40.  W asks for HK$1,500. H submitted that W failed to mention the Government’s refund/allowance of HK$300 and agreed to only HK$1,000. W did not reply on this point. I accept HK$1,000 to be the reasonable amount.

Clothing, Personal Grooming and Entertainment

41.  W seeks HK$1,000 for each item. I agree with H that HK$500 each should be enough.

Medical/Dental

42.  W does not say she has regular need for medical and dental attention, her budget of HK$500 is estimated in case of need. I consider HK$300 to be reasonable.

Insurance Premium

43.  W claims HK$1,710 for this item. H accepts there is such item but calls it litigation tactics. I am prepared to accept W’s amount to be reasonable.

Total

44.  In light of the foregoing, I accept the aggregate amount of HK$16,010 as W’s Reasonable Needs.

45.  By a broad brush approach, after taking into account of W’s salary of HK$10,000, she can have a claim for MPS against H for HK$6,000.

H’S ABILITY TO PAY

46.  H used to be paid salary of HK$30,000 per month and an annual bonus of HK$390,000 in 2018 by his company. H’s case is that since March 2019, he was paid only HK$30,000 per month, there was no longer annual bonus paid due to deterioration of the company’s business during the pandemic.

47.  The only other income H has is the rental income from the TKT property in the sum of HK13,000.

48.  It is H’s case that he is in financial difficulties and his company have been using new loans to cover old loans.

49.  H’s evidence is that his total monthly expenses amount to HK$62,505 for mortgage repayments, management fees, domestic helper, insurance, food, utilities, daughter’s tuition and credit card repayments.

50.  H has already tried to tighten other monthly spending of meals out, transport, household expenses, clothing, personal grooming, entertainment, medical to HK$9,150 per month.

51.  The total monthly expenses of H and the daughter are therefore HK$71,655.

52.  H has 2 batches of personal loans of HK$2,523,400 and HK$400,000. The monthly interest payment is HK$21,358 per month.

53.  As a result, H has a total spending of HK$93,013 per month. Given H’s income of HK$43,000, the deficit of each month is HK$50,013.

54.  As discussed above, the sum that W now claims as MPS is HK$6,000. Compared to the total monthly expenses of HK$71,655 of H and the daughter, W’s claim for MPS is roughly 8% thereof. As H can manage to maintain the livelihood of himself and his daughter with HK$50,013 deficit per month, H should be able to manage to pay HK$6,000 to W as MPS. H has the ability to borrow. I am also satisfied that H can further tighten his budget for expenditure to meet the need of W for MPS.

55.  Based on the materials before me, I am satisfied that H has the ability to pay MPS.

BACKDATING

56.  W asks that MPS be backdated to the date of the Petition.

57.  The Court has a very wide power, including a power to backdate the order for an award. The overall objective is to achieve a fair outcome.

58.  W argued that H stopped making payment of HK$20,000 after July 2018. However, W received HK$300,000 from H in March 2019 whether or not pursuant to the divorce agreement.

59.  The present Summons was taken out by W on 28 October 2020 when the Petition was filed on 6 March 2019, if W was in need of MPS, she could have made the present application sooner.

60.  In my view, the fair outcome is that the present order should take effect only from the date of W’s Summons on 28 October 2020.

ORDER

61.  In the present application, neither party is considered totally successful as their respective proposals were not accepted by me. By reason of the foregoing, I make the following orders:

(a)  The Respondent shall pay maintenance pending suit to the Petitioner in the sum of HK$6,000 per month to be backdated to 28 October 2020 and to be paid on the 28^th day of each calendar month thereafter until further order;

(b)  There shall be an order nisi to be made absolute in 14 days that costs of the Petitioner’s Summons filed on 28 October 2020 be in the cause of the claim for Ancillary Relief.