HMSE v. JJS

FCMP 70/2008

[2019] HKFC 269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 70 OF 2008

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R U L I N G

(LEAVE TO APPEAL)

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1.  This is an application by the Applicant mother (“M”) for leave to appeal against the judgment handed down on 1 March 2019 (“Judgment”), following a 5-day trial on the application by M for variation of financial provision payable by the Respondent father (“F”) in favour of their daughter HOLTT (“T”). 

2.  I shall adopt the same abbreviations as in the Judgment.

3.  M applied for leave to appeal by way of Summons filed on 27 March 2019, which has set out the grounds of appeal.  She has also lodged her skeleton submissions. 

4.  F opposed to the application.  The skeleton submissions for F was filed on 9 April 2019. 

5.  As I have already set out the background of the parties, their evidence and the reasons for my ruling in the Judgment, I am not going to repeat the same here.  This ruling has to be read together with the Judgment.  Background of the case has been set out in paragraphs 9 to 30 of the Judgment.

The legal principles

6.  The legal principles governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance, Cap. 336:-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

M’s proposed grounds of appeal

7.  There are 6 proposed grounds/headings of appeal of M, which is recited as follows :-

“1. The Accommodation – Judge wrongly failed to take into account”

“2. Lump sum for immediate and non-recurring needs – related to T – Judge failed to rule on some items”

“3. Mother allowance was too low – Judge wrongly failed to take into account”

“4. Lump sum on mother allowance as immediate and non-recurring needs – if the Court of Appeal granted a higher amount on mother allowances”

“5. Mother allowance should be a solid figure but not an open figure – Judge failed to take into account”

“6. Periodical payment – Judge wrong understanding of the application”

8.  Under each of the 6 proposed grounds/headings of appeal, there are different sub-paragraphs explaining further each of the proposed grounds/headings of appeal.  The 6 proposed grounds/headings of appeal could be grouped under 4 headings :-

(1)  About accommodation

(2)  About lump sum payment

(3)  About mother’s allowance

(4)  About periodical payments

Discussion

(1) About accommodation

9.  M complained about my ruling in relation to accommodation.  She is of the view that I should not have used the market price of the Mei Foo Property as a reference but should use the existing premises of Cox’s Road Flat instead.  M is of the view that I have failed to put any focus on the current circumstances, interests, benefits and welfare of T.  M alleges that I have instead put my focus on the judgment made 10 years ago and the undertaking in 2010. 

10.  In the Summons taken out by M for variation of financial provision payable by F in favour of their daughter T, M asked, inter alia, “M be released and discharged from the undertaking not to vary the sum of HK$12,000 as referred to in Section II (2) & (3) of the 2010 Order by Consent, and that the sum of HK$12,000 for the housing needs of T be varied and increased to HK$45,000”.

11.  In the 2010 Order by Consent, there were various undertakings by M and F respectively.  Amongst which, the relevant parts for this application is Section II, which it is the mutual undertaking and agreement by the parties, as follows :-

“II. Upon the parties’ mutual undertaking and agreement to deal with the Mei Foo Property as follows :

Either

(1) The Respondent [F] is to provide the Mei Foo Property for the accommodation of T, the Applicant [M] and B until T reaches 18 years of age or until T finishes her first full-time tertiary degree whichever is later;

Or

(2) To pay the Applicant [M] a sum of HK$12,000 each month if the Applicant [M] chooses not to live in the Mei Foo Property. In this circumstances, the Respondent [F] is entitled to rent out the Mei Foo Property for rental income.

(3) The sum of HK$12,000 mentioned in (2) above is independent from the amount of rental income received from the Mei Foo Property and is not subject to variation by either party; This sum is payable on the 1^st day of each month commencing 1^st April 2010 until the Applicant [M] and T move back to the Mei Foo Property.

(4) If the Applicant [M] and T wish to move back to the Mei Foo Property in the future, the Applicant[M] shall give reasonable and sufficient notice to the Respondent in order for him to facilitate the delivery of vacant possession of the Mei Foo Property.

(5) The above arrangement will survive the death of the Respondent [F].”

12.  The Mei Foo Property was bought by F in compliance with his undertaking in the 2009 Order, which was the order resulted from the trial in 2009 regarding financial provisions for T.  The undertaking by F to the Court and to M in the 2009 Order is as follows :-

“(a) (1) To buy a property in the name of the Respondent [F] at the value of not more than HK$3.5 million (in Shatin or in Mei Foo Sun Chuen) within 3 months and to provide this property for the accommodation of T, the Applicant [M] and B until T reaches 18 years of age or until T finishes her first full-time tertiary degree whichever is later.”

13.  Since about 2009, M, together with T, B (the half-sister of T) and a maid, had moved home for several times.  They have been living in Tsimshatsui area.  M, together with T, B, and a maid, have later moved to live at a flat in Cox’s Road (“Cox’s Road Flat”) in April 2017, which is now where they are living.

14.  It is M’s case during trial that she should be discharged from the undertaking to agree on the monthly sum of HK$12,000 to be received as M chooses not to live in the Mei Foo Property (as stated in Section II (2) & (3) of the 2010 Order by Consent).  It is M’s stance that the monthly sum of HK$12,000 should be varied to HK$45,000. It should be noted that the rent of the Cox’s Road Flat is HK$48,000 (including the use of a carpark space).  

15.  After consideration of all the evidence before the Court and as I have explained in paragraphs 72 to 100 in the Judgment, I am of the view that leave should be granted for the undertaking to be discharged. 

16.  I have in fact taken into account all the evidence, including the current circumstances, the interest, benefits and welfare of T about accommodation, and considered what the next step should be after leave is granted to M to be released or discharged from the undertaking to accept the HK$12,000 monthly sum.  Further analysis had been made in paragraphs 101 to 108 of the Judgment.

17.  In gist, M’s complaint in relation to accommodation are fundamentally premised upon a continued insistence that she was correct to move to Cox’s Road Flat and that Mei Foo Property no longer represents appropriate accommodation for T.

18.  I have stated clearly in paragraph 104 of the Judgment that I do not accept T’s accommodation ought to be “upgraded”.  I have considered all the evidence and submissions put forward by the parties, and I have ruled that F’s standard of living had not increased so substantially as to constitute a lavish lifestyle, not least such as to justify variation based solely on this reason (analysis set out in paragraphs 52 to 62 of the Judgment).   

19.  As explained above, I do not agree the “upgrading” of accommodation to the Cox Road Flat and it follows that M should not have moved T around. 

20.  I do not see the basis of M’s complaints.  Bare assertions do not take M’s case any further.  No reasonable prospects of success are shown by M under this ground.

(2) About lump sum payment

21.  It is M’s complaint that there are items of expenses which had not been considered in the lump sum payment, which are the immediate and non-recurring needs spent on T.  These items include :-

(i)  accommodation (from March 2016 to March 2019);

(ii)  purchase of a second hand car;

(iii)  moving costs;

(iv)  extra-curricular activities and tuition fees (from March 2016 to March 2019); and

(v)  loans interests and re-mortgage lawyer fees

22.  I have stated clearly the legal principles in relation to lump sum payment in paragraph 40 of the Judgment, and I am aware that as stated in section 10(2) of Guardianship of Minors Ordinance, Cap. 13, lump sum payments could be made by the Court for the immediate and non-recurring needs of T or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining T before the making of the order as the court thinks reasonable.

23.  I am also aware of the relevant principles in the authorities as set out in paragraphs 41 to 47 of the Judgment.  I have to stress that in the application for variation, M bears the burden of proof.  I have also set out in paragraph 113 of the Judgment of the importance of keeping relatively detailed accounts of the outgoings and expenditure, especially for any application for variation.

24.  Especially in this case where F had clearly stated his position as early as in call over hearings that F is of the view that M has exaggerated the expenses for T and some of the items M claimed are not justified, it becomes more important for M to justify her claim and to provide accounts or supporting documents to prove her case.

25.  As set out in paragraph 114 of the Judgment, I notice that there was court order asking M to provide supporting documents.  However, M has failed and/or refused to keep proper accounts and/or documentary evidence, whether before or after the said court order directing the provision of supporting documents.  I am of the view that M has not discharged her burden to prove her case at trial.

26.  To take as an example, in relation to expenses for extra-curricular activities and tuition fees, I have pointed out in paragraphs 164, 167, 169 and 170 of the Judgment that there is the lack of evidence, there are hardly any supporting documents for some items and the minimal documents in support certainly did not add up to over HK$10,000 per month as claimed by M.

27.  In relation to claim for lump sum payment, the amount M claimed for, which I have set out in paragraphs 232 and 233 of the Judgment, has increased from HK$960,000 (as stated in the Summons) to HK$3,103,934.40 (as she asked for during trial).

28.  What has raised more concern is that when F criticised the loans M had taken out (which according to M, loans / debts were taken out / incurred for maintaining T) and pointed out that there is no evidence to show that the alleged loans, if they are loans at all, had been used on the maintenance on T, the evidence of M during cross-examination (which I set out in paragraph 235 of the Judgment), is that the liabilities incurred represent “everything”, ie. expenses not only for T, but also for T’s half-sister, the family and M herself.  Without being able to distinguish and show the amounts incurred in maintaining T, the Court cannot possibly ascertain what the reasonable amounts are for the immediate and non-recurring needs of T. 

29.  In the circumstances, I had taken a practical approach, having considered the welfare and best interests of T, and in view of M’s non-disclosure and insufficiency of evidence, adopted the approach proposed by F to backdate the sum awarded to M.

30.  It should be pointed out that for accommodation, I have analysed in paragraphs 13 to 19 above, and I am not going to repeat here.

31.  M’s claim for the reimbursement of expenses for :-

(i)  accommodation;

(ii)  purchase of a second hand car;

(iii)  moving costs;

(iv)  extra-curricular activities and tuition fees; and

(v)  loans interests and re-mortgage lawyer fees

had been stated in her various affirmations, which I have set out in paragraph 233(c) (for purchase of a second hand car), paragraph 233(f) (for moving costs, paragraph 233(d) and (e) (for loans interests and re-mortgage lawyer fees) of the Judgment.  For extra-curricular activities and tuition fees, I have explained in paragraph 26 above, which I am not going to repeat here.  It is wrong to say that I have not considered those items.

32.  With the reasons explained above, with the lack of supporting documents, I have considered all the items alleged by M, and had decided to take a practical approach to be awarded to M.  As to the start date of the backdating for the lump sum payment, I have explained in paragraph 242 of the Judgment.

33.  Should M provided sufficient supporting documents, the Court could have taken a different approach to descend into details and to do actual calculations of individual items. M is now trying to have second bite of the cherry.  After the court has taken a practical approach, even with the lack of all sufficient supporting documents, M now asks the court to rule separately those items. I see no reasonable prospect of success of her intended ground of appeal.

(3) About mother’s allowance

34.  Proposed grounds 3, 4 and 5 are considered together under this part.  The main complaint about mother’s allowance is that the amount granted for mother’s allowance is too low. 

35.  It should be pointed out that the increase in mother’s allowance is not to be simply calculated arithmetically or proportionately to other expenses, but should be considered carefully all the evidence.

36.  From my analysis, as set out in paragraphs 195 to 226 of the Judgment, I have considered all the evidence, circumstances of the case, parties’ submissions and the legal principles, before I made a ruling about mother’s allowance.  In proposed ground 4, M is basically repeating what she had explained during trial (see paragraph 204 of the Judgment), which I had already considered in the Judgment.  Simply disagreeing with the amount awarded and stating that a higher amount should be awarded does not further M’s case. 

37.  Another complaint by M is that the amount awarded should not be an open figure.  With the analysis of the amount of mother’s allowance to be increased, as set out in paragraphs 220 to 227 of the Judgment, I have considered and rounded up the figure of mother’s allowance to be increased by about HK$2,000 to about but not more than HK$10,000 per month.  What I meant was rounded up to HK$10,000 as mother’s allowance per month.  I agree that it is preferable if I had directly stated the mother’s allowance be HK$10,000 per month. 

38.  However, by looking at the entirely of the Judgement, I have ordered that the periodical payment of HK$35,000 be increased to HK$53,000 per month.  I have also summarised the breakdown of the calculation of the periodical payment of HK$53,000, including the mother’s allowance in paragraph 227 of the Judgment.  Mother’s allowance is to be included in the periodical payments anyway.  Therefore, I do not agree that there is prospect of success for the ruling of mother’s allowance, which is included in the periodical payments of HK$53,000 per month as a total.

(4) About periodical payments

39.  M is of the view that I have wrongly understood M’s application in relation to periodical payments, as shown in paragraph 37 of the Judgment.  M explains that it has never been her case to apply for periodical payments from HK$30,000 to HK$90,000 to HK$184,150, but HK$135,000 to HK$184,150.

40.  I have to point out that in paragraphs 35 to 39 of the Judgment, I was stating the father’s case under the section “F’s case”, and in paragraph 37 therein, I clearly stated that it was the submissions of the F’s counsel that the amount of periodical payment M sought has been exaggerated and much inflated.  It is clear that I have not misunderstood M’s case and her claim for periodical payments. 

41.  I do not see any prospect of success for this proposed ground of appeal.

Orders

42.  To conclude, M has failed to show that she has an arguable case on any of her proposed grounds.  I am of the view that the intended appeal has no reasonable prospect of success.  It does not appear that M is relying upon, and at the same time M has not shown, that there are any reasons in the interests of justice why leave to appeal should be granted.  With the reasons aforesaid, the application for leave to appeal must be dismissed and I so order.

Costs

43.  I see no reason why M should not be responsible for the costs of this application.  I order that M do pay F costs of this application, summarised assessed at HK$50,000, to be paid forthwith.  This is costs order nisi, which shall be made absolute within 14 days.