CMW v. WTY

FCMC 8759 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8759 OF 2010

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D E C I S I O N

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Introduction

1.  This is the call over hearing of a Summons issued by the Respondent on 26 October 2015 seeking leave to file affirmations as to the preliminary issue over 2 properties, namely, the former matrimonial home (“FMH”) and a Tai Po property (“TP property”).

2.  On 5 October 2015, this Court handed down a written Decision (“the Decision”) dismissed a joinder application taken out by the Respondent’s then solicitors Messrs. C.Y. Lam & Co., where the background of this case had been set out.  I do not intend to repeat those background save and when only necessary for this Decision. 

3.  Following the Decision and on 23 October 2015, the Respondent filed a Notice to Act in Person replacing his then lawyers Messrs. C.Y. Lam & Co.

4.  Suffice to say is that the FMH was registered in the name of the Respondent (Husband) and the Intervener who is his elderly mother as joint tenants.  The TP property was registered under the sole name of the Petitioner’s elder sister.  The trial of the preliminary issue had already commenced on 22, 23 and 28 October 2015 which was adjourned part heard to 23 and 24 December 2015 of which, as at today, had yet to complete for the reasons set out in the next paragraph. 

5.  On 22 December 2015 (which was the day before the adjourned part heard trial), the Respondent faxed in a letter attached with a photocopy of a medical certificate issued by Violet Peel General Out-Patient Clinic recommended 7 days sick leave to the Respondent from 22 December 2015 to 29 December 2015 inclusive.  In the letter, the Respondent said :-

“As I was got hurt and granted sick leave for a week (till 29.12, associated medical certificate was attached herein for reference), I am terribly sorry for not being able to attend the hearings of 23.12 and 24.12 reserved.

Please place before his Honor for consideration.

Thank you for your kind assistance.”

6.  The Respondent had not attended the resumed hearing on 23 December 2015 nor had he provided the Court with details of his condition in the letter.  However and which is unusual, the diagnosis and case number in the photocopy medical certificate was left blank.  Since the Respondent was not present, the Court was only left with the option of further adjourning the part heard trial to 15 January 2016 which was after the recommended sick leave period.  The Respondent was directed to bring along the original medical certificate at the next hearing on 15 January 2016.

The Respondent’s application

7.  The Respondent’s reasons for the present application are set out in his supporting affirmation.  At this hearing, the Respondent was given the opportunity to make any further submissions on his application.  The reasons set forth in the supporting affirmation, as I understand it, are as follows.  First, he claimed that he did not realise there was any requirement for the filing of affirmations on the preliminary issues since the learned Judge Melloy had directed affirmations to be made by his mother (that is, the Intervener) on the FMH and the Petitioner’s elder sister on the TP property (see paragraph 4 of his supporting Affirmation).  Secondly, this Court in the Decision opined the need to identify issues by reading affirmations of which he had yet to file (see paragraph 5 of his supporting Affirmation).  Thirdly, the adjournment of the trial of preliminary issues from 23 October 2015 to 28 October 2015 was not making the way for his application for leave to file affirmations of which he has the liberty to do so in accordance with court procedure (see paragraph 6 of his supporting Affirmation).

The Petitioner’s position

7.  Counsel Mr. Eugene Yim for the Petitioner (Wife) was instructed to oppose to the Respondent’s application and confirmed at this call over hearing that no Affirmation in Opposition will be filed.  Oral submissions in opposition were then made by Mr. Yim on 3 aspects. 

8.  First, this is a repeated exercise of the Respondent since this Court had already refused the Respondent’s then lawyers such application on 19 October 2015 and also on the first day of trial, namely, 22 October 2015.  Secondly and notwithstanding the earlier refusal, the delay in issuing the present Summons still remained unexplained.  Thirdly, the Respondent had not produced the draft of the Affirmations of which leave is now being sought for filing.  Thus the Petitioner does not know the scope and contents of the Respondent’s affirmations.  If leave is now granted, the Petitioner would be prejudiced unless she was given a fair chance to respond.  Further and if so, the adjourned part heard trial scheduled for 15 January 2016 would be jeopardised. This case was started in 2010.  There had been a lapse of 5 to 6 years and from case management perspective, the trial should be dealt with as soon as possible.

The 2 preliminary issues

9.  The first part of the preliminary issue is that whether the FMH is 100% beneficially owned by the Respondent’s mother of which the Respondent is one of the legal joint owners.

10.  The second part of the preliminary issue is that whether the Petitioner has any beneficial interest in the TP property of which the Petitioner’s elder sister is the sole legal owner.

The Court’s views

11.  At the sake of repetition, in paragraph 38 of the Decision, this Court had found that the Respondent in his 2 Form Es (dated 10/9/2011 and 2/2/2013 respectively) had never asserted the Petitioner have had any beneficial interests in the TP property.  Such assertion only came into the scene at the time when the Respondent, with the benefit of legal advice, issued the joinder application trying to bring in the Petitioner’s elder sister as a party and he deposed in his supporting affirmation that he came to know about the Petitioner’s interest in the TP property as early as 1997 and 2007.

12.  Throughout these proceedings the Respondent acted by himself.  He saw fit to engage lawyers Messrs. C.Y. Lam & Co., on 16 September 2015 and then chose to resume to self representation on 23 October 2015.  Whilst he was legally represented, apart from the joinder application filed by Messrs. C.Y. Lam & Co. on 25 September 2015 upon Mr. Lam’s undertaking to do so at the hearing on 18 September 2015, there was a letter dated 19 October 2015 from Messrs. C.Y. Lam & Co. seeking leave to issue a Summons for the Respondent to file Affirmations on the 2 preliminary issues returnable on 22 October 2015, which is the first day of trial of the preliminary issues.  This application was opposed to by the Petitioner’s solicitors.  In the end, this Court refused such application.   

13.  What had happened was that at the hearing on 22 October 2015, Mr. Lam made reference to this Court’s refusal 3 days ago on 19 October 2015, but nevertheless, sought to apply for adjournment of the trial so that the Respondent might be able to file evidence and then for other parties to reply.  Given full consideration to the oral submissions made by Mr. Lam and all the circumstances, the application for adjournment was refused there and then by this Court and the trial immediately commenced. 

14.  In reply to the first contention of Mr. Yim, the Respondent agreed his attempts to seek leave for filing Affirmations on the preliminary issues was without success.  He did seek his then lawyers’ opinion as to the issuing of the present Summons but at that time the focus rests upon the joinder application. In my view, the Respondent’s explanation is plainly unsustainable and cannot be accepted.  Reason being that the Decision dismissing the joinder application was made on 2 October 2015 and full reasons handed down on 5 October 2015.  There was a period of inactivity of, say, 21 days (from 5/10/2015 to 26/10/2015) before the Respondent issued the present Summons seeking leave to file Affirmation on the preliminary issues.  The Respondent was legally represented until 23 October 2015 and must have been fully advised on his legal position.   The trial on preliminary issues in fact had started on 22 October 2015.  The present Summons was only issued 4 days after the trial started.

15.  As to the letter dated 11 October 2015 which was attached and marked as exhibit “A1” to his supporting Affirmation of which the Respondent now relied upon as his explanation to this Court for the inactivity, this is also a sham argument. First of all, since the Respondent was legally represented at the time of this letter, this Court directed the Respondent on the next day, that is, 12 October 2015 as follows :

“Please liaise with your own lawyers.”

16.  According to the records, this Court’s letter stating the direction was despatched both to the Respondent and also his then lawyers Messrs. C.Y. Lam & Co. on 13 October 2015.  I am entitled to consider that the Respondent would have had the full benefit of legal advice both as to his writing in the letter to the Court direct without going through his then lawyers on record and also on the contents of his 11 October 2015 letter when this Court’s direction was known to his then lawyers.  The Respondent cannot, in my decision, now rely upon such letter as his ‘reasons’ for seeking the Court’s indulgence to grant him leave to file Affirmations or ‘explanation’ for the lateness in so doing.  I have canvassed the issue of lateness in making applications to Court and the case management aspects in the Decision (at paragraphs 30 to 34 and 50 to 52) which I do not intend to repeat here. 

17.  Secondly, the Respondent’s contention that he did seek his then lawyers’ advice as to issuing the present Summons but the focus by then rests upon the joinder application is misconceived.  The joinder application was taken out on 25 September 2015 and dismissed after hearing on 2 October 2015.  The Decision had not been taken any further to appeal and there was ample time for the Respondent, who was legally represented by Messrs. C.Y. Lam & Co. by that time, to tackle the issue of filing of Affirmations on preliminary issues. 

18.  For these reasons, I do not accept the Respondent’s first contention.  As rightly pointed out by Counsel Mr. Yim, this is a second attempt to adduce evidence without any change of circumstances since the last refusal by the Court.

19.  The second contention is that this Court in the Decision had referred to the need to identify issues by reading affirmations of which he had yet to file.  This was contained in paragraph 60 of the Decision.  In my view, the Respondent had misread and misunderstood that paragraph of the Decision.  The Court was considering the basis for exercise of discretion whether or not a trial should be postponed or adjourned for compliance with the TL v. ML procedure (see paragraph 59 of the Decision).  That part of the Decision does not dispense with the pre-requisite of the filing of Affirmations on preliminary issues for the TL v. ML process in usual cases or the need to seek leave to file such Affirmations.  The Respondent’s second contention fails.

20.  The third contention was in consonance with the earlier contention that paragraph 60 of the Decision had referred to the need of Affirmations of which he had the liberty to do so and that he was acting in accordance with court procedure.  In his oral submissions, the Respondent attempted to place emphasis upon his then lawyers’ inactivity which had prompted him into writing the 11 October 2015 letter directly to the Court.  He also submitted that Counsel Mr. Yim in his oral submissions this morning had not commented or gave a single word on the contents of his letter but simply keep on saying that the delay was unexplained.

21.  To start with, the Court would not be bothered with any miscommunication or complaint by a litigant against his or her lawyers.  Any grievance or complaint should have been addressed to the relevant governing bodies.  Thus, a party cannot simply put up some sort of assertion of his or her lawyers’ inactivity, neglect or even omission in the conduct of proceedings as any kind of ‘explanation’ for delay in seeking reliefs or for the Court’s indulgence or to be able to rely upon as ‘reasons’ for such application which should have been done.  It would not only be unfair to the other party in the litigation but also to the then lawyers who have had no chance to respond.  Accordingly, the Respondent’s letter of 11 October 2015, whether for its existence or contents, could not assist the Respondent’s present application for leave to file Affirmations on the preliminary issues.

22.  The Respondent’s assertion that Counsel Mr. Yim had not commented upon his letter of 11 October 2015 is also misconceived.  Given the fact that this Court had already directed the Respondent to liaise with his then lawyers on his 11 October 2015 letter, such letter could not be said as being accepted by the Court which requires the other party’s comment.  It is always the Respondent’s burden to substantiate his grounds of application and justify the reasons for delay.  It is not otherwise for the Petitioner or her Counsel to comment on the contents of that letter which was not addressed to them and also contained matters which are self serving if not at all privileged.     

23.  I do not accept the Respondent’s third contention.      

Other considerations

24.  Before leaving this case, I take the chance to reiterate here those matters set out in paragraphs 50, 54 and 55 of the Decision of which I have casted my mind upon in light of the peculiar circumstances of the present case.  At the risk of repetition, I had said as follows :-

“50. Part A of the Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) sets out the applicability of the Rules of the High Court and Rules of the District Court under the Civil Justice Reform to the Matrimonial Proceedings and the Family Proceedings with necessary modifications. At Part G (New Measures under the Civil Justice Reform), it provides that the Court may exercise the case management powers under Order 1B having regard to the underlying objectives of the Civil Justice Reform under Order 1A.

54. As said, the Petitioner’s ancillary reliefs have yet to be determined after the disposal of the preliminary issues. Custody issue was resolved back in September 2012 after a 6-day trial. Three years have already elapsed with the question of ancillary reliefs nowhere close to trial. This is unacceptable and completely falls apart from the underlying objectives of the CJR on expeditiousness, procedural economy, fairness and fair distribution of court’s resources.

55. The Respondent’s joinder application at this stage, with no explanation whatsoever as to the lateness, not only fly in the face of the CJR objectives, would also have a significant impact since the Fourth Trial Dates would have to be vacated, the already lateness in resolution of disputes would be further exaggerated, public funds would be escalated as both the Petitioner and Intervener are legally aided. Moreover, the Respondent’s asserted case as per paragraph 11 of his supporting affirmation that the other 3 siblings of the Petitioner are also beneficial owners might have the ramifications that further parties might be brought into the proceedings whether as witnesses or further interveners.”

Conclusion

25.  For all the above reasons, I do not accept the Respondent’s application. 

26.  The Respondent’s Summons dated 26 October 2015 be dismissed.

Costs

27.  Since the Respondent failed completely in his application, it is fair and reasonable that the normal rule on costs should apply.  I find there is no basis for departure from such rule.

Orders

28.  I now grant the following Orders :-

(a)  The Respondent’s Summons dated 26 October 2015 be dismissed;

(b)  The Respondent do pay the costs of the Summons dated 26 October 2015 to the Petitioner, including all costs reserved (if any), to be taxed if not agreed; and

(c)  The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

29.  I also grant Certificate for Counsel.