LLC v. LMWA AND ANOTHER

FCMC 4683 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4683 OF 2014

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J U D G M E N T
(Legal costs provision)

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Introduction

1.  The petitioner of this case is the wife. The 1^st respondent is the husband. The 2^nd respondent is the father of the husband and he does not feature in this application now before me. He intervenes into the ancillary relief proceedings solely for the purpose of determining as a preliminary issue the beneficial ownership of the matrimonial home of the couple and a carpark space at the Sorrento, Kowloon (“Sorrento Property” and “Sorrento Carpark” respectively).

2.  Shortly before the commencement of the trial of the aforesaid preliminary issue, the wife filed her summons on 30 October 2015, seeking legal costs provision from the husband in the sum of $100,000 per month backdated from August 2015 (when she first requested for litigation funding by way of her solicitors’ letter) up to the stage of the financial dispute resolution (FDR). Such payment is to be in addition to his existing obligation to pay her maintenance pending suit and interim maintenance for the two young children of the family (collectively the “MPS”) under an order made by this court on 30 June 2014 and subsequently varied by the order of 11 September 2015 (collectively the “MPS Orders”).

3.  This hearing on the dispute of litigation funding is already the 4^th round of contentious litigation between the couple since the breakdown of their marriage. Previous contentious disputes include the wife’s application for MPS; her application for enforcement of the undertakings in the MPS Orders and the trial of the preliminary issue in respect of the Sorrento Property and Sorrento Carpark. Litigation costs are flaring up to about $4.6 million within 2 years, with some $1.75 million on the part of the wife (estimated up to about March 2016)[1] and almost $2.85 million on the part of the husband (estimated up to April 2016). Yet, there is still a long way before they will reach the stage of the FDR. At this juncture, I cannot help urging the parties and their legal teams to seriously reflect their respective approach to the ancillary relief proceedings and pending the judgment on the preliminary issue to attempt/return to mediation in the hope for an amicable settlement, before it is too late to regret that the family assets have evaporated with little, if any, left for their children who are still at a very tender age.

4.  For the purpose of this hearing, it is the wife’s case that she is a full time housewife and caretaker of 2 young children. She has no income or immediate financial resources which she can reasonably deploy to procure legal service apt to these proceedings. By contrast, the husband was the main breadwinner before the breakdown of their marriage. He is in control over the whole marital assets which has been depleted by him to meet his own legal costs which has reached $2.85 million or so as at April 2016 within 2 years. She asks for an order in terms of her application so that an equality of arms can be achieved to enable her to obtain comparable legal representation of her choice by utilizing the matrimonial assets.

5.  The husband defends this application on a number of fronts. He argues that he does not have the ability to pay for her legal fees. He also submits that the wife has alternative financial means which she can deploy to fund her legal fees. For example, she can have asked her own sister to repay the debt of US$50,000 owed to the husband. He says that she has not exhausted the alternative of obtaining legal aid. Last but not the least, he says the wife’s claim of $100,000 per month as legal costs provision is unreasonable and disproportional to the actual amount of the assets of the parties, which should have better been saved up for their young children.  He asks that the wife’s application be dismissed.

6.  In view of the above, the core issues for determination are:

(1)  Whether the wife has alternative financial means to fund her own litigation;

(2)  Whether the husband has the financial ability to provide litigation funding for the wife;

(3)  Depending on the finding of (1) and (2) above, what should be the amount of such legal costs provision.

7.  Before I go to the issues, it is necessary to set out the following brief background.

Background

8.  The wife was born in 1981 and is now aged 35. The husband was born in 1980 and is now 36. They were both born in Hong Kong but immigrated to the USA, the wife at 10 and the husband at 12. The wife came from an average middle-class family, while the husband’s family is one of the shareholders of 2 companies in Hong Kong. The 2 companies (“NW Co Ltd” and “HKB Co Ltd” respectively) specialise in trading of fabrics.

9.  While in the USA, the couple studied in the same university between 1999 and 2003 and had common friend(s). They met again in Hong Kong in late 2004 and started their romance in/about July 2005 after they both returned to the USA. At that time, the wife was working as an assistant engineer and the husband was a management analyst.

10.  Upon the death of his grandfather, the husband eventually moved back to Hong Kong in/about September 2006 and the wife in/about November 2006. In May 2007, the husband formally proposed to the wife, after which they started cohabitation in the Sorrento Property since February 2008.  

11.  They got married in September 2008.  Two children, a son and a daughter, were born within their wedlock, in 2011 and 2014. They are now 5 and 2 respectively.

12.  Marital discord started to surface in 2013. In October 2013 when the wife was still pregnant with the younger daughter, the husband moved out of the matrimonial home then at King’s Park Hill. Shortly after the birth of the daughter, the wife and the children moved back to the Sorrento Property in April 2014 and have been staying there up to now.

13.  The wife issued her petition in April 2014, alleging unreasonable behaviour on the part of the husband. It was later amended and toned down to an allegation that the husband has an extra marital affair, to which he does not defend in his Form 4 filed on 2 January 2015. For unknown reasons, the wife has not proceeded to applying for a decree nisi up to today and I urge her legal team to follow up on this without delay.

14.  By a consent order dated 12 May 2016, the custody of the children is granted jointly to the parties, with care and control to the wife and access to the husband. It cannot be disputed that the wife is the main care-giver of the children.

15.  Under the MPS Orders, the husband claims that he has paid or is paying the wife for herself and the children, in very broad terms, the following:

(1)  MPS of a fixed sum of $57,500 per month sum for the wife ($27,500), the son ($19,000) and the daughter ($11,000);

(2)  A sum of $3,500 per month to cover their transport-related expenses;

(3)  School fees of the children of about $13,960;

(4)  Shadow teacher/play therapy for the son at $30,000;

(5)  Medical fees and/or expenses of Kowloon Tong Club of about $8,700;

(6)  A sum of 370,000 to reimburse the wife/children’s car rental and transport-related expenses during April to September 2015 (when they were deprived of the use of the company car provided by NW Co Ltd) and to enable her to rent/purchase a vehicle for the use of the family, without prejudice to his right to argue that this sum should be treated as a capital distribution and set-off with her final ancillary relief award.

16.  Currently, the wife is a full-time housewife taking care of the children with the assistance of maid(s). She and the children are totally and financially dependent on the husband. The husband is now a director of both NW Co Ltd and HKB Co Ltd. The evidence shows that he owns about 8% of the shares of NW Co Ltd and about 12 % shares of HKB Co Ltd.[2]  The wife seems keen to aver that NW Co Ltd and HKB Co Ltd are the “family companies” controlled by the husband’s family and that they have substantial value. The husband insists that his family (including him) is only the minority shareholder(s).  As such, the battlefield of the parties is likely to extend to the valuation of and/or the extent of control by the husband’s family of both companies.

Applicable Legal Principles

17.  There cannot be any dispute that the words of section 3 of the the Matrimonial Proceedings and Property Ordinance (“MPPO”), Cap 192 are wide enough to empower the Hong Kong courts to include an element towards a party’s legal costs in an order for maintenance pending suit: see KGL v CKY [2005] 1 HKFLR 215.

18.  The guiding principles are set out in the English Court of Appeal case of Currey v Currey (No 2) [2007] Costs LR 227 which has been adopted by the Hong Kong Court of Appeal in HJFG v KCY [2012] 1 HKLRD 95 per Hartmann JA (as he then was) at §§74-85. His Lordship articulated that the overriding principle in this kind of application is “reasonableness” which is synonymous with “fairness”.  The other relevant conditions are best summarised by HH Judge Bruno Chan in H v H (Interim Maintenance) [2007] HKFLR 311 as follows:

(1)  that the applicant has no assets, or none that can be reasonably deployed;

(2)  that he/she can provide no security for borrowing, or none which could reasonably be offered;

(3)  that he/she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation;

(4)  that he/she cannot secure publicly funded legal help at a level of expertise apt to the proceedings.

Wife’s alternative means to meet her legal costs

19.  Ms Josephine Law, counsel for the wife, submits that the wife is a full time housewife taking care of 2 young children of 5 and 2. She is currently maintained by the husband under the MPS Orders. Due to the relative young age of the children, she would not be expected to enter the work market soon.  Further, she does not have substantial savings and funds in her bank account that can be deployed to engage legal services at a level of expertise apt for the proceedings.  She holds mainly 3 bank accounts, 2 with HSBC and one with Citibank. The HSBC savings account has a balance of about $195,000 odd representing the children’s red packet money and thus is holding by her in trust for the children, which the husband does not seem to dispute. For the sum of $837,176 which she claims that she is holding in trust for her mother and was transferred out of her HSBC Advance account to her mother, the same has been transferred back to her to meet various expenses of her/children, as well as her legal costs. The most updated and available balance at her bank accounts as at 28 October 2015 was only about $74,696. Since then, a further $20,000 was withdrawn for co-parenting sessions, leaving a balance of about $54,696 odd only.

20.  I accept the submission of Ms Law that this balance $54,696 odd is of such a token and negligible sum that it should be kept by the wife as emergency capital to meet any unforeseen expenses. I also agree with counsel that the wife does not have any landed property which can be put up for sale or as security for borrowings. She does not have any employment which may enable her to borrow from banks or finance companies. Her parents have retired and diagnosed with Parkinson’s disease and gastric cancer respectively a few years ago. It is unlikely that they would be able to render any or any further financial support to fund her litigation.

21.  However, Mr Eric Leung, counsel for the husband, argues that the wife has not exhausted the alternative of applying for legal aid. To this argument, I have 2 points to make.

22.  First of all, it is the husband himself who submits that the overriding principle in this kind of application is “fairness”. In my view, it would not be fair that while the husband, who has the control of the family purse, can spend, and in fact has already spent, about $2.85 million out of the family assets to choose and change his legal teams at his own preference (this is already his 3^rd legal team) and to fund his litigation, but the wife has to resort to publicly funded legal help in the result of which she may not have the liberty to pick her own legal team apt to the proceedings.

23.  Further, although the total value of the family assets is yet to be ascertained, it is very likely that the Sorrento Property (at least 50%) and the husband’s shares of NW Co Ltd and HKB Co Ltd carry not an insignificant value. The Sorrento Property and Sorrento Carpark, according to Mr Leung’s submission, are worth $21 million and free from mortgage. According to the audited account of NW Co Ltd as at 31 December 2012, it owned investment properties close to $107 million and its total assets less current liabilities was about $116.5 million.[3] According to the audited account of HKB Co Ltd as at 31 March 2012, it owned investment properties in the value of about $22.2 million and its total assets less current liabilities was close to $30 million.[4] When there are sufficient resources available within the family fund, there is no reason why public funds should be expended to fund litigation (See: KGL v CKY (supra) at §21).  

24.  Mr Leung also puts forward other alternative means that may be available to the wife in meeting her legal provisions:

(1)  She can recover a sum of USD50,000 (equivalent to HK$388,000) owed by her elder sister to the husband;

(2)  She can sell or return to the husband his vintage camera and lens kept at the Sorrento Property. Once returned to him, he can sell them at estimated sale proceeds of $440,000 which can be utilised to fund her litigation;

(3)  The husband has recently sold his BMW Z4 at $110,000 and he would pay the said sale proceeds to the wife within 7 days;

(4)  She can sell her handbags. She has sold one of her handbags, which is a Birkin bag, in December 2013 for $158,000.

25.  Mr Leung no longer suggests in his oral submission that the Sorrento Property may be sold or mortgaged in meeting the wife’s legal costs.

26.  In my view, her sister’s debt and the vintage camera and lens are the assets possessed by the husband, and cannot possibly be regarded as the wife’s own and alternative means to fund her litigation. Quite on the contrary, they throw light on the financial resources available to him. Besides, the wife has explained in her affirmation why that particular Birkin bag sold in December 2013 can worth $158,000, namely it is a brand new and limited edition. She is able to provide whatsapp messages from Milan Station, chain stores specialising in sale and purchase of 2^nd hand brand name handbags, to show that her other used Chanel and Hermes handbags are worth less than $200,000.[5] I hold the further view that even if these handbags are sold, the sale proceeds are unable to answer to her reasonable need for litigation funding very much.

27.  Therefore, I conclude that the wife has satisfied the conditions set out in Currey v Currey (supra). That would bring me to the next issue which I think is of major dispute in this application, ie the husband’s financial ability and resources.

Husband’s financial ability

28.  Mr Leung submits that the husband has only 2 main financial resources that can be used for immediate deployment, namely (i) his income including the dividends; and (ii) savings/investment at his bank accounts.

29.  On income, Mr Leung refers me to the husband’s tax return for 2014-2015 showing that his monthly income is $153,142. The total dividends received by him for the fiscal year of 2014-2015 are $1,518,314,[6] averaging $126,526 per month. Hence, the total income including dividends of the husband would be $279,668 per month. However, his monthly personal expenses are approximately $145,267. On top of his personal expenses, he is paying $120,860 per month under the MPS Orders. Clearly, Mr Leung says, the surplus of his income, after deducting his expenses, is minimal and insufficient to satisfy the unreasonable demand of $100,000 per month from the wife to fund her legal fees. The relevant figures are expressed below in a table for easier understanding:

	2014-2015
Average monthly income	$279,668
LESS
Personal expenses	$145,267
MPS Orders	$120,860
Surplus:	$13,541

30.  Mr Leung goes on to point out that since the husband’s income is barely sufficient to meet the expenses of 2 households, he has obviously to eat into his savings to provide for the family whenever there are unexpected amounts to pay. This explains the significant depletion of his savings from October 2013 (the month of separation)[7] to April 2016 as follows:

	Bank	October 2013 (approximation only)	April 2016
(1)	Hang Seng Bank	$2,300,000	$107,513
(2)	HSBC	$3,000,000	$273,120
(3)	Citibank	$  580,000	$128,463.84
	Total:	$5,880,000	$509,096.84

31.  On the face of it, his bank savings have decreased by about $5.37 million within a period of 31 months (or about $173,225 per month). But Mr Leung is adamant in explaining that the money had been applied to meet the husband’s unexpected expenses/spending as follows:

	Items	Amount
(1)	Injection into P Ltd (a company jointly owned by him and his elder brother)	$500,000
(2)	2nd renovation of Sorrento Property in preparation for the wife/children to move back	$221,000
(3)	Payment to the wife for purchase of an Audi A5 car	$370,000
(4)	Payment to Little Kids & his accountant (for valuation of the shares of HKB Co Ltd)	$130,000
(5)	Legal fees	$2,400,000
(6)	Private investment in hedge funds and stocks through a friend	$1,130,000
	Total:	$4,751,000

32.  I have the following observations and/or views to Mr Leung’s submission.

33.  Firstly, it has become very clear during the hearing (and I also so find) that the husband has the following financial resources of about $1,573,000 to meet the wife’s reasonable litigation funds without resorting to his monthly income and bank reserves:

(1)	Debts owed by the wife’s sister:	$388,000
(2)	Debts owed by the husband’s elder brother:	$500,000
(3)	Vintage camera and lens:	$440,000 [8]
(4)	Sales proceeds of BMW Z4:	$110,000
(5)	Rental deposits of King’s Park Hill:	$135,000
	Total:	$1,573,000

34.  Secondly, even if (just assuming) Mr Leung’s submission at §[31] was to be totally accepted by this court, the husband has yet to explain where the balance of about $619,000 ($5.37 million - $4,751,000) has gone, which he has failed to do.

35.  Thirdly, for the purpose of this hearing, I do not find it necessary to comment on each and every item of the alleged unexpected spending set out at §[31] . Suffice it is for me to point out that the alleged private investment in hedge funds and stocks through a friend is not supported by any affirmation evidence. It is merely disclosed by way of a letter from the husband’s solicitors at the eleventh hour of the hearing of 25 April 2016. The alleged investment was allegedly made on 17 September 2014 and 8 January 2015 respectively. No explanation whatsoever is provided by the husband on why the alleged investment and monthly statements were not disclosed in his affirmation or earlier by other means.

36.  It is trite to say that an application for MPS and/or legal costs contribution is always disposed of by way of an argument hearing, based only on affirmation evidence without calling any oral evidence. But it is not uncommon for legal practitioners in this field to put in “new documents” through their written submission on the pretext for updating the court of the financial situation of the parties in fulfilment of their duty for continued disclosure. I think the case law is clear that one needs to mark a clear distinction between these 2 situations, namely (1) updated financial documents that come into being between the date of the affirmation in question and the date of hearing, which is relevant to the issues; and (2) financial documents which are already in existence but failed to be disclosed at the time of the relevant affirmation. It requires no further explanation to point out that, under general legal principles, the documents under scenario (2) above are unable to pass the thresholds set out in Ladd v Marshall[1954] 1 WLR 1489.

37.  I am convicted to say that the documents so belatedly disclosed by the husband in relation to the alleged private investment in hedge funds and stocks through a friend falls within the above scenario (2) and should not be consider by this court for the purpose of this hearing.

38.  Even if this court was to consider the monthly statements so belatedly disclosed by the husband, I agree with Ms Law for the wife that there is suspicion concerning the genuineness of this alleged investment. I accept counsel’s submission that it is very dubious that the February 2015 monthly statement contains an erroneous “future” entry dated 16 March 2015. I cannot see why the husband does not disclose the name of this friend.  In any event, these monthly statements are unsworn evidence. 

39.  Fourthly, the husband’s disclosure on the dividends that he actually received from NW Co Ltd and HKB Co Ltd is piecemeal and unsatisfactorily. The overall affirmation evidence at this stage shows that NW Co Ltd and HKB Co Ltd declare interim dividends as well as final dividends each year, but there is a lag time in payment of such dividends. For the purpose of this hearing, Mr Leung for the husband focuses on the financial year of 2014-2015.

40.  Pausing here, I notice that while the husband has attempted to produce belatedly other new and/or updated financial documents (in an attempt to explain why his bank reserves has reduced) for the part-heard hearing of 13 June 2016, he has not, at the same time, provided any, and if so, how much, the interim and/or final dividends declared for the year of 2015-2016, in order to update this court of his financial means.

41.  Putting aside this observation and if only to focus on the financial year of 2014-2015, I note that in his 6^th affirmation (dated 22 January 2016) filed in opposition to this application, the husband deposes that he has received 2 cheques of dividends in 2014, respectively of $160,792 and $186,460 (totalling $347,252) but that he has not banked them yet. It certainly begs an explanation why he chose not to bank in these cheques if he was bona fide in such dire financial situation.[9] Then in his supplemental written submission, the husband through his counsel reveals that he has actually received 2 other sums of dividends, respectively of $803,960 and $367,102 (totalling $1,171,062), which he has banked into his HSBC account on 9 March 2016. Yet he chose not to disclose these during the argument hearing of 25 April 2016, so that his counsel’s then written submission on his means was based on non-updated figures. In the adjourned hearing of 13 June 2016, Mr Leung revises the dividend figures and submits that the total dividends received by the husband for the fiscal year of 2014-2015 is $1,518,314 (or $126,526 per month).

42.  However, this line of submission has overlooked the fact (and Mr Leung has to accept this during his oral submission) that the husband has actually received into his HSBC account at least 3 other substantial sums of dividends during the financial year of 2014-2105 as follows:

	Date	Amount
(1)	22/10/2014	$1,407,722.03
(2)	23/1/2015	$919,076.88
(3)	23/1/2015	$1,075,296.50
	Total:	$3,402,095.41

43.  I am of the view that in computing how much has been depleted from his bank reserves, these 3 sums have to be taken into account.  Therefore, at least a total sum of about $8.77 million ($5.37 million + $3,402,095.41) has been siphoned off by him from his bank reserves between October 2013 and April 2016. Putting his case on the unexpected spending to its highest (see §[31] above), there is still a balance of about $4 million that has been depleted without an explanation.

44.  Since in applications for interim maintenance which include litigation funding, it is not appropriate, nor possible, to conduct a detailed investigation into the parties’ finances. As such, I do not intend to go further into the other computation tables made by Ms Law in her written submission or the unreasonable expenses allegedly spent by the husband each month, eg dog breeding at $2,300 per month.  Due to the composite effect of the above analysis on the husband’s financial means, I conclude, on adopting a broad brush approach, that he has means of at least $1,573,000 to fund the wife’s legal costs without resorting to his income and bank reserves. Further or in the alternative, even accepting his best case on unexpected spending, he has failed to disclose the whereabouts of at least $4 million which has been siphoned off from his bank account during between the separation month and April 2016.  It is well established that in the ancillary relief proceedings, including MPS, there is a duty on both parties to make full and frank disclosure of all relevant materials to enable the court to exercise its discretion in making the order. If the court is of the view that the evidence disclosed by a party is deficient, adverse inferences may be drawn against that party (See: C v F (Maintenance Pending Suit) [2006] HKLFLR 41at §28).  I will thus draw adverse inference against the husband that he is able to pay the legal costs contribution that is ordered by me in this judgment.

Reasonableness and proportionality

45.  Mr Leung for the husband submits that in any event, the wife’s request for litigation funding is unreasonable and disproportionate. He stresses repeatedly in the hearing that this is a short marriage of about 5 years with 2 very young children and that it is not a big money case. Money should thus be saved for the children rather than funding the litigation. Yet, the wife has conducted the litigation in an unreasonable manner so far. For example, she chose to dispute the beneficial ownership of the Sorrento Property and Sorrento Carpark by engaging a senior counsel in the trial; she exhausted her savings on renting an Audi car for use instead of accepting to use a 7-seater Japanese car (Nissan Serena) provided by the husband.

46.  It is my broad brush view that the wife cannot be regarded as unreasonable in engaging a senior counsel to represent her in the trial for the preliminary issue of the beneficial ownership of Sorrento Property and Sorrento Carpark, as the husband’s father has the service of a very experienced senior counsel specialising in the family law in the same trial. The expenses spent on renting an Audi car (about $110,270), even if saved, is insufficient to cover the reasonable legal costs of the wife.  

47.  In relation to the submission on the shortness of the marriage, I only need to recap that Mr Leung has himself stressed that the overriding principle in this kind of application is “reasonableness” which is synonymous with “fairness”.  My observation and view stated at §[22] of this judgement is thus reiterated. I would add that given the wife is a housewife taking care of 2 young children of the family at this stage, it would not be fair to deny her of reasonable litigation funding under all the circumstances of this case. It is also erroneous for the husband to object to her such request on the pretext that money should better be saved up for their young children, but with himself already spent about $2.85 million out of the family pool to fund his own legal costs. This is double standard, which this court should refrain from applying in recognition of the overriding principle of “fairness”.

Amount of litigation funding

48.  According to her Form H filed on 21 July 2015, the wife has incurred legal costs of about $743,300. She estimates that her legal costs since this Form H until the FDR would be around $1,242,500.[10]  Ms Law proposes in her written submission that the legal costs funding should either a lump sum of $1.4 million or a monthly payment of $100,000 from the date of the summons (30 October 2015) until the FDR (estimated to take place 12 months in October 2016).

49.  In reply, Mr Leung points out that the total legal costs, spent and/or estimated by the wife, are $743,300 and $966,650 respectively (totalling $1,709,950). According to his calculation and on the assumption that the FDR will take place within 6 months, the average monthly legal costs of the wife (over 30 months) would only be $56,998, thus suggesting that her demand of $100,000 per month is overstated.

50.  With respect to Mr Leung, the above calculation has overlooked the wife’s costs estimation since her Form H in July 2015 up to the date of her 1^st MPS affirmation (October 2015). When that is added, the total legal costs spent and/or estimated should be about $1,985,800. Further, upon subsequent enquiry and/or clarification from this court, Mr Leung agrees that his estimation of 6 months from now to reach the stage of the FDR is too optimistic. He accepts that the likely time table is 12 months from now. He also fairly concedes that the valuation of the shares of NW Co Ltd and HKB Co Ltd will be an issue of dispute, which means that application relating to the valuation of shares is foreseeable and further costs are likely to incur. Without admission on the ability to fund the wife’s litigation, Mr Leung says that the likely amount of her legal costs leading up to the FDR would be about $1,098,000 (averaging $91,500 per month). In the case that the husband is found to have the ability to fund the wife’s litigation costs, Mr Leung has not suggested whether this sum should be paid by way of a lump sum or monthly instalment.

51.  Having considered the affirmations and submission, I take the view that in computing the reasonable legal fees funding of the wife, I should only take into account her estimated costs since her Form H in July 2015. Her previous legal costs would and should have been covered by her bank reserves, including a sum of about $837,176 which she claims was transferred back from her mother to her HSBC Advance account (See §[19] above). It would mean that her estimated costs from her last Form H (July 2015) up to the FDR, which in my view will realistically take place within 12 months from now, should be $1,242,500, which I would round it down to $1.2 million for easy calculation.  

52.  To avoid any possible future dispute of whether a lump sum payment at this stage should be set off against any capital award eventually made to the wife, and thereby incurring further costs in such argument, I do not think it is appropriate to order the husband to pay a lump sum of $1.2 million to the wife to fund her litigation. A monthly payment is more suitable in all the circumstances of this case. And given the wide time gap between the date of the wife’s summons and the date of actual hearing of her summons, she would, prima facie, end up getting more than what she has estimated as her legal costs in her supporting affirmation during the relevant period, if I back-date the order to the date of her summons until the stage of the FDR. Hence, I conclude that I would order the husband to pay the wife as her legal costs funding by way of monthly payment of $100,000 per month for 12 months, when the FDR is likely to take place. (See: DX v LN, FCMC No. 7870/2014, judgment dated 21/9/2015, per HH Judge Bruno Chan at §89).    

Conclusion

53.  Due to the matters set out aforesaid, I will allow the wife’s application and order that the husband do pay her a sum of $100,000 per month for 12 months in order to contribute her on-going litigation fund up to the stage of the FDR, which is anticipated to take place 12 months from today. Such sum shall be paid on the same day of the MPS payment into a bank account designated by her, starting from 2^nd September 2016.

54.  There is no reason that costs should not follow the event. I thus make a costs order nisi that the husband shall bear the wife’s costs of and incidental to this application, to be taxed if not agreed, with certificate for counsel. Such costs order nisi will become absolute within 14 days from the date of this judgment if there is no application to vary the same.