BT v. YHK

FCMC 943/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 943 OF 2011

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RULING
(Committal)

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Introduction

1.  The application now before me relates to the proper procedure for enforcement post the Court of Appeal decision in YBL v LWC [2017] 1 HKLRD 823 dated the 30 December 2016.

Background

2.  On the 29 May 2015 I handed down a judgment following the trial of a judgment summons and a request for interest payment and surcharge that had spread over the best part of a year. The matter first came before me on the 11 – 12 February 2014 and then again in September of that year and finally on the 24 February 2015. The debt in question arose out of a consent summons dated the 1 August 2011 in which the husband had agreed to pay the wife a lump sum of HK$26 million by seven instalments. Payments were to be effected in full within a two-year period i.e. by the 1 September 2014. Infact the husband did not pay as agreed and this led eventually to the wife issuing three judgment summonses dated the 21 September 2012, the 16 May 2013 and the 22 November 2013.

3.  The husband repeatedly made proposals to pay during the period of the trial, but eventually this came to nought. The matter was heard according to the pre YBL v LWC procedure and the law was summarized in the judgment as follows:

7.   Turning next to the law on judgment summonses. The judgment debtor is required to show cause. He has to show the court why he should not be committed to prison for contempt. The court is to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so, reference Ellis v Ellis. The judgment creditor needs to prove this beyond reasonable doubt. Mubarak v Mubarak is the case in question. Further, it is accepted that a judgment summons like all proceedings for contempt is a remedy of last resort and, particularly so, in the Family Court, reference CYM v YML, the Court of Appeal decision.

8.   The court has the power to commit a judgment debtor to prison certainly for up to 3 months and, arguably, for longer, or to commit suspended upon payment of the outstanding debt, either in its entirety or by instalments, or to adjourn sine die with liberty to restore.

9.   When considering the possibility of imprisonment, the court is bound by the claims made in the original judgment summonses. In other words, the court looks at the amount that the judgment creditor says it is owed at that date and the judgment debtor is put to strict proof in relation to those amounts. If the court is considering the possibility of making a new order in which the judgment debtor is, for example, asked to pay by instalments, then it is possible to calculate the outstanding amount due up-to-date or to remit or suspend or in some other way to vary the amount owed.

10.   In this case the amount outstanding is not in dispute, and I accept the up-to-date calculation as set out in the schedule attached to Mr Leung’s submission in reply. As indicated above, as at 5 May 2015, the sum of $24,170,410.67 remained outstanding. This includes interest payable on the sum owed as of that date.

4.  At the end of the day I decided not to immediately imprison the husband, as it seemed to me at that time that it would serve no useful purpose to do so. I did though suspend the committal. I gave the husband one year to make the payment in full and in the meantime the he was to continue to pay the wife $300,000 per month on the first day of each month as proposed by him. The final order stated as follows:

29.   Upon the examination on oath of the judgment debtor in open court, this court finds that:

•   pursuant to an order dated 9 August 2011, the judgment debtor was ordered to pay the judgment creditor a lump sum of 26 million by seven instalments, all payments to be made by 1 September 2014, he has failed to make such payments and there is due and owing under the said order the sum of $24,170,410.67 as at 5 May 2015. Interests thereafter should accrue at a daily rate as indicated above. In addition, he shall pay a surcharge of $1,208,520. Pending payment the Petitioner shall continue to pay the Respondent the sum of $300,000 per month.

•   The judgment debtor has not shown cause why he should not be committed to prison as he had the ability to make the payments ordered but has wilfully failed to do so and he is in contempt of this court’s order of 9 August 2011.

•   The judgment debtor be committed to prison for the period of 3 months, suspended, provided that the judgment debtor pays the judgment debt and surcharge in the total sum of $25,378,930 plus daily interest; such sum to be calculated on or before 1 June 2016.

•    For the avoidance of doubt, the costs of these enforcement proceedings be to the judgment creditor, to be taxed if not agreed on an indemnity basis.

•    A warrant of arrest shall be issued upon the solicitor for the Judgment Creditor filing an affidavit of non-compliance with the terms of the suspension.

•    It goes without saying that in that event in accordance with the Court of Appeal’s decision, the matter should come back before me in the first instance. I will therefore give liberty to apply, in addition.

5.  The husband did not pay as ordered. The wife eventually sought leave to activate the suspended committal order and on the 11 October 2016 she issued an ex parte application to that effect. Complaint is made that the wife did not inform the husband’s legal representatives of this. Suffice it to say that I accept what the wife says in this regard and that all reasonable efforts were made by her to inform the husband’s lawyers of the same. On the 17 October 2016 a warrant of arrest was issued and the husband was ordered to be brought before the court to explain why he should not be committed to prison for contempt. On the 30 December 2016 the Court of Appeal handed down its judgment on YBL v LWC which prescribes a very different process for hearing matters of this nature. Given that the husband says that it is no longer appropriate to activate the suspension without hearing the matter afresh first.

6.  Although it pains me somewhat I am inclined to agree with Mr Barnes on this point. It is then for the wife to decide whether or not to issue a fresh judgment summons, which will in effect be an examination summons only under the new procedure, or to proceed directly to an application for contempt of court.

7.  Consequently, I shall make an order as follows:

order 4 contained in the court order dated the 29 May 2015 shall be discharged.

The suspended committal order shall not be activated.

8.  Costs shall be reserved.