|
FCMC 10251/ 2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 10251 OF 2011
-----------------------------------
BETWEEN
| |
FQL |
Petitioner |
| |
and |
|
| |
SKMJ |
Respondent |
-----------------------------------
| Coram: Deputy District Judge PANG in Chambers (Not open to public) |
| Date of Hearing: 21 June 2013 |
| Date of Judgment: 28 June 2013 |
-----------------------------------
J U D G M E N T
(Maintenance Pending Suit)
-----------------------------------
The wife’s application
1. By way of a notice of intention to proceed with an application for maintenance pending suit (“MPS”) dated 3 April 2012, which is followed by a summons issued on 23 August 2012 and amended on 15 June 2013 pursuant to the order of Deputy District Judge A. Yim dated 1 March 2013, the petitioner wife is applying MPS for herself and her son, a child of the family.
Background
2. The parties have cohabited since 2000 in the PRC. They were married on 22 January 2002 in Hong Kong. Since marriage, the wife has been a housewife and financially dependent on the husband. The wife continued to live in the mainland. The parties applied for immigration to the US in mid 2003. The child was born on 30 September 2003. The wife landed in San Francisco on an immigrant status and lived there from mid 2004. The husband remained in Hong Kong for work while the child lived with and was taken care of by a relative in Hong Kong. There was limited but regular parental visitation. The parties have maintained a long-distanced marital relationship between mid 2004 to March 2011. The wife returned to Hong Kong in March 2011. During the period from April to July 2011, the parties together with the child lived in a house in Yuen Long (hereinafter called the “Royal Palms property”), which was purchased by the husband in 1996. Unhappy difference has since arisen and the husband moved out on 1 July 2011.
3. The wife issued her petition for divorce on 27 July 2011 alleging that the parties have separated since about January 2008, which is disputed by the husband, who contends that the parties did not separate until 1 July 2011.
4. In August 2011, the Royal Palms property was undergoing some sort of improvement work and the husband arranged the wife and the child to move in a serviced apartment in the Hung Hom District on a one year term lease.
5. The wife filed a notice of intention to proceed with an application for MPS on 3 April 2012. The husband was absent from the first three hearings of the first appointment, dated 24 October 2011, 17 January 2012 and 10 April 2012 respectively. On 10 April 2012, in the absence of the husband and without the husband’s Form E, Deputy District Judge A. Yim made an order for interim MPS in the sum of $45,000 per month for the wife and the child.
6. The husband appeared at the hearing dated 26 June 2012 during which the parties were directed to file affirmation on the issue of the date of separation and the husband was to file his Form E. The first appointment was adjourned to 5 September 2012.
7. The wife changed her solicitor in August 2012, and she took out a summons on 23 August 2012 for a variation of the interim MPS with supporting affirmation. The husband filed his Form E on 4 September 2012 in which he indicated he wished the court to reduce the interim MPS to $25,000. At the hearing dated 5 September 2012, the wife told the court that she has renewed the lease for the serviced apartment for one further year but the husband refused to pay the September 2012 rent of the serviced apartment. The husband was paying the rent until the expiration of the old lease by August 2012. The husband said the wife should move back to the Royal Palms property, but the wife said the said property was not in an inhabitable state thus she has renewed the lease of the serviced apartment. The parties were directed to obtain a joint surveyor report on the conditions of the Royal Palms property and to file further affirmation on the question of MPS. The hearing of the wife’s application was adjourned to 19 November 2012 for argument.
8. The wife filed her Form E on 3 October 2012, and the husband filed his answers dated 22 October, 14 November 2012 and 22 February 2013 respectively to the wife’s questionnaire. The joint surveyor report dated 13 October 2012 listed out a long list of defects. The wife filed her 3rd affirmation on 16 November 2012, in which she listed out the problematic areas of the said property with some photos and provided a quotation of a contractor for remedial work. At the hearing dated 19 November 2012, it was pointed out by Deputy District Judge A. Yim that this should not be an application for variation pursuant to section 11 of the MPPO but a MPS application pursuant to section 3 of the MPPO. Direction was given to the wife to amend her summons dated 23 August 2012 accordingly. As the husband has prepared the hearing as an application for variation, he did not file any affirmation, and he did not have time to reply the wife’s latest affirmation. The substantive hearing was adjourned to 1 March 2013. In the meantime, the husband was given time to rectify the defects listed out in the said joint surveyor report by mid January. Direction was also given as to the preparation of a progress joint surveyor report to clarify whether the above-mentioned defects have been rectified.
9. The progress joint surveyor report was filed on 7 February 2013 by which the joint surveyor concluded that the said property was fit for habitation.
10. Since the husband was late in the filing his affirmation in reply to the wife’s affirmation, the hearing dated 1 March 2013 was further adjourned to 21 June 2013.
11. The wife filed her 4th affirmation on 23 April 2013, however. A solo surveyor report dated 27 February 2013 was exhibited and marked “FQ-1” to her 4th affirmation. The wife’s solo surveyor found there were defects in the installation of the bath tub on the 1st floor and the toilet bowls in the rest rooms on the 2nd and the 3rd floors of the said property, and most of the electrical power socket plates there were not equipped with required three rectangular slots and therefore did not comply with the requirement of the Electrical and Mechanical Services Department. Also, water seepage from the said bath tub on the 1st floor when it was filled up with water was detected. Based on the findings of the solo surveyor report, the wife insists that the said property was unfit for habitation.
12. One day before this hearing, the husband took out a summons on 20 June 2013 for the court’s leave to file an affirmation dated 20 June 2013, in which the husband drew the attention of the court to the fact that the wife has commenced legal proceedings in the PRC against the husband in relation to the ownership of a PRC property which was registered in the husband’s name. It is the wife’s case that the husband is the beneficial owner of the PRC property but he says he is just a nominee owner for a brother. An arbitration award dated 5 June 2013 of the arbitration proceedings taken place between the husband and his brother in relation to the PRC property was also exhibited to the affirmation dated 20 June 2013. The wife’s position to the application is that, if the court allows the filing of the husband’s latest affirmation, the wife will need time to file a reply affirmation, which will necessitate the further adjournment of the substantive hearing of the wife’s MPS application.
13. This matter has been dragged on for over a year. It is an unusually long time for the disposal of an application for MPS which is supposed to be approached by the court with board brush. In my view, any further delay in the matter is extremely undesirable. At any rate, in my view the new evidence now sought to be adduced by the husband is not relevant to the present application. True, the parties dispute on the beneficial ownership of the PRC property. By any means, for the present purpose it is not necessary, nor is it appropriate, for the court to make a finding of fact in this issue. Having carefully considered, I make the order that the husband’s summons dated 20 June 2013 be dismissed with costs to the wife, summarily assessed at the sum of $3,900, payable forthwith.
14. Before I turn to discuss the wife’s application, I should give a brief introduction to the law in this subject.
The Law
15. The law in this subject is well settled. The wife’s application for herself is governed by section 3 of the Matrimonial Proceedings and Property Ordinance (“MPPO”), Cap.192. Provision for the child is under section 5 of the MPPO.
16. The court has a wide discretion in the matter, subject to the result being reasonable. In TL V ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263, Deputy High Court Judge Mostyn QC (as he then was) stated at 1289: -
“The sole criterion to be applied in determining the application is ‘reasonableness’ (s 22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with ‘fairness’.”
17. The court will consider all factors that may influence the outcome of the application so as to make such order as it regards reasonable in all circumstances of the case. In C v F [2006] HKFLR 41, HHJ Bruno Chan stated at 45: -
“Although the sole statutory guideline in considering maintenance pending suit is that the award shall be ‘reasonable’, the court will nevertheless bear in mind all the factors drawn to its attention relating to the marriage and the parties to it and perhaps the two most outstanding matters in every case, as in this one, are the standard of living of the parties, and the ability of the husband to pay.”
The parties’ respective positions
18. By her summons dated 23 August 2012, the wife was in effect seeking MPS in the sum of $66,000 per month.
19. By his Form E dated 4 September 2012, the husband indicated he wished the court to reduce the interim MPS to $25,000 per month.
20. In her 3rd affirmation dated 16 November 2012, the wife has revised the amount sought to $67,800 per month.
21. At the hearing dated 1 March 2013, the husband proposed to pay $18,000 per month plus the use of the Royal Palms property on an “as is basis”.
22. By her submissions filed on 19 June 2013, the wife at this moment seeks (a) $67,800 per month or (b) $45,000 per month plus use of the Royal Palms property and the provision of a car, provided that the husband shall be responsible for the costs of further renovation.
23. Upon Deputy District Judge A. Yim’s suggestion dated 1 March 2013 that the parties should examine the possibility of renting out the Royal Palms property, the husband has put up the said property on the market for lease for the asking rent of $30,000 since March 2013. It remains vacant up to-date. In the premises that the said property is to be let out, the husband at this moment proposes to pay MPS in the sum of $18,000 per month plus an additional sum of $20,800 per month to cover the rent of the wife and the son’s current residence.
Discussion
24. On 10 April 2012, Deputy District Judge A. Yim was presented with a situation where she has to make an extempore decision as a stopgap measure. It was in that context that she decided upon a figure of $45,000 on a temporary basis. The parties agree this figure should now be re-assessed in accordance with the principles of law that I have mentioned in the above.
The standard of living of the parties
25. According to the wife, since marriage the parties have maintained an above-average living standard. The husband used to give her a cash payment of $20,000 per month. On top of that, the husband gave her a subsidiary credit card to shop and buy, with which she spent about $20,000 per month. Up to June 2011, she has kept her own expenditure, exclusive of the household expenses such as monthly mortgage repayment or rent and the child’s education expenses, in the region of about $40,000 to $50,000 per month.
26. According to the husband, after the wife went to live in the US in 2004, he used to pay about USD2,000 to USD2,500 per month to the wife for her rent and living expenses and $8,000 per month to the relative for the son. In addition, he arranged for the travel for the family between Hong Kong and the US. After the wife returned to Hong Kong in March 2011, he continued to pay the wife about $20,000 per month. At all times, he has been responsible for his living expenses and the monthly mortgage repayment of the Royal Palms property in the sum of $24,741 per month.
27. As to the wife’s assertion that she spent about $20,000 per month with a subsidiary credit card, Mr. Yim has taken the court through some of the monthly statements of the subsidiary credit card account, which show that during the period from March 2011 to June 2011, the transactions in the account have amounted to around $5,000 a month. Since the husband has moved out of the Royal Palms property on 1 July 2011, there has been an increase in the amounts. For example, for August 2011 and September 2011, the monthly amounts are $10,267.78 and $25,830 respectively. It appears that, contrary to the wife’s assertion, her spending with the subsidiary credit has been about only about $5,000 per month during the marriage.
28. In a gist, when she was in the U.S., the wife was given about USD2,000 to USD2,500 and the relative who took care of the child was given about $8,000. The wife was given about $20,000 per month, plus a subsidiary credit card with which, as shown by the monthly statements, she spent in an average of about $5,000 per month when she was in Hong Kong and the parties were living together. The husband was responsible for some of the household expenses such as the monthly mortgage repayment and the education expenses of the child at the same time. Before separation, the family lived in a comfortable three-bedroom house in Yuen Long, about 1980 sq. ft. in area. They employed a part-time domestic helper. They travelled by a family car owned and kept by the husband.
29. All things considered, I agree with the wife that the parties have maintained an above-average living standard.
The wife and the child’s needs
30. As stated in her form E, the wife and the child’s current monthly expenses are as follows:
General household expenses
| Item |
Amount (HK$) |
| Rent |
20,800 |
|
Utilities (electricity, gas, rates, telephone & water) |
2,000 |
|
Food |
10,000 |
| Household expenses |
2,000 |
|
Cleaning fee |
560 |
|
Sub-total |
35,360 |
Wife’s expenses
| Item |
Amount (HK$) |
| Meals out of home |
5,000 |
| Transport |
1,500 |
| Clothing/ shoes |
3,000 |
| Personal grooming |
2,000 |
| Entertainment/ presents |
3,000 |
| Holidays |
2,000 |
| Medical/ dental |
3,000 |
| Insurance premia |
2,900 |
| Contribution to parents |
1,000 |
| Mobile phone |
500 |
| Sub-total |
23,900 |
Child’s expenses
| Item |
Amount |
| Extra tuition fees |
9,280 |
| School books and stationery |
400 |
| Transport to school |
300 |
| Medical/ dental |
1,500 |
| Extracurricular activities |
1,000 |
| Entertainment / presents |
1,000 |
| Holidays |
1,000 |
| Clothing / Shoes |
300 |
| Lunch and pocket money |
1,500 |
| Other transport |
300 |
| Uniform |
150 |
| Sub-total |
16,730 |
General expenses
Rent
31. Despite the parties’ dispute on the issue as to whether the Royal Palms property is or is not fit for habitation, the husband proposes to accept this sum of $20,800, in the premises that the Royal Palms property is to be leased out for rental income. I prefer this proposal to the option that the wife and the child are to move back to the said property, for two reasons: -
(a) The market rent of the said property is about $30,000 per month whereas the rent for the serviced apartment is $20,800 per month. The family can gain a few thousand dollars per month with this proposal.
(b) The serviced apartment is situated near to the young child’s school in Hung Hom. If the wife and the child are to move back to live in Yuen Long, the young child will need to travel a very long distance everyday to go to school, which should be avoided, so far as it is feasible.
Utilities
32. The husband suggested $1,197. I regard a sum of $2,000 is reasonable.
Food
33. The husband suggests $3,000. For two persons, I regard a sum of $10,000 is reasonable.
Household expenses
34. The said sum of $2,000 is acceptable to the husband.
Cleaning fee
35. If the Royal Palms will be let out, the husband is prepared to pay the said sum of $560.
Wife’s personal expenses
Meals out of home
36. Given the wife being an at home mother, I regard a sum of $1,000 is reasonable.
Transport
37. Again, as the wife is not working, I regard a sum of $500 is reasonable.
Clothing/ shoes
38. I regard a sum of $500 is reasonable.
Personal Grooming
39. I regard a sum of $500 is reasonable.
Entertainment/ present
40. I regard a sum of $500 is reasonable.
Holiday
41. I regard a sum of $500 is reasonable.
Medical/ dental
42. The husband suggests $200. Even with the wife is not suffering from any serious or chronic illness, I regard a sum of $1,000 is reasonable.
Insurance premia
43. For the reason stated by the husband in his submissions dated 20 June 2013, I agree with the husband’s suggestion of $500.
Contribution to parents
44. I agree with the husband that this is not a suitable item under MPS.
Mobile
45. The husband suggests $100. I regard a sum of $500 is reasonable.
Child’s expenses
Extra tuition fee
46. The husband suggests $2,000. The child is attending English classes. I regard a sum of $4,000 is reasonable.
School books and stationery
47. The said sum of $400 is acceptable to the husband.
Transport to school
48. The said sum of $300 is acceptable to the husband.
Medical/ dental
49. The husband suggests $200. The child is receiving psychotherapy. I regard a sum of $1,500 is reasonable.
Extracurricular activities
50. The husband suggests this item is overlapping with the item under extra tuition fee. I disagree. I regard a sum of $1,000 is reasonable.
Entertainment/ present
51. The husband suggests $500. I regard a sum $1,000 is reasonable.
Holiday
52. The husband suggests $500. I regard a sum of $1,000 is reasonable.
Clothing/ shoes
53. The husband suggests $200. I regard a sum of $300 is reasonable.
Lunches and pocket money
54. The husband suggests $600. I regard a sum of $1,500 is reasonable.
Other transport
55. The said sum of $300 is acceptable to the husband.
Uniform
56. The husband does not make a suggestion. I regard a sum of $150 is reasonable.
57. In conclusion, the reasonable monthly expenses of the wife and the child are estimated at $52,310. If the husband is to pay the wife $52,310 per month as MPS, after the payment of the rent for the serviced apartment, the wife will have a disposable income in the sum of $31,510, i.e. the difference between $52,310 and $20,800, which, worth noting, is in the same ballpark of what the wife and child were given during the marriage (see para [28] above).
Wife’s financial position and alleged non-disclosure
58. The husband says the wife, 35 years old and being an adult with earning capacity, cannot require the husband to continue to pay for her living expenses, whether as MPS or long-term periodical payments under section 4 of MPPO, and the wife has been less than candid about her financial position.
(a) He asked the wife to obtain written confirmation from HSBC and the Bank of America, her bankers, that she holds no other bank accounts except as disclosed. However, his request was responded by a point-blank refusal.
(b) Of her 50% shareholding of F & Co., in her answer to the husband’s questionnaire, the wife claims to be just a nominee owner for the husband, in contradiction to her Form E in which she states that she has 50% “beneficial interest”.
(c) How the wife funded her deficit way is questionable.
(d) The wife failed to mention a PRC property registered in her name in her From E dated 21 October 2011.
(e) The wife joined a program known as “Online Business Course (Japanese Korean product)” offered by the YWCA of Hong Kong in about March 2012, which purports the wife is operating some undisclosed business or at the very least she is planning to do so.
59. The wife counters that:
(a) She does not have any undisclosed bank accounts and she is unable to obtain the further information requested by the husband.
(b) F & Co. is a U.S. company established at the request of the husband and has been an outlet agent for the husband for his sports goods. She is a nominee for the husband and she did not have any beneficial interest in the company. She was not involved in the business of the company, which has ceased operation since 2011.
(c) She borrowed from a friend and her younger sister to get by.
(d) She is a nominee owner of the PRC property, where her father is living, for her father.
(e) She is not operating any undisclosed business.
60. Regardless of the husband’s doubts and queries stated in the above, for the present application, it is not appropriate for the court to conclude a finding of fact in this regard. Time will tell whether the wife’s assertion is to be accepted by the court. For the purpose of the present application, I tend to take an overview in the matter. The wife has been a full-time housewife and financially dependent on the husband since 2002. There is not a shred of solid evidence before me that the wife can in any way amass a fortune. On the other hand, her evidence adduced before this court is that she has no assets, except perhaps the said PRC property in which her father is now living, of which the beneficial ownership is in dispute, and no income. For the present purpose I do not treat that the wife has any undisclosed assets, nor has she any undisclosed income.
61. MPS applications are approached on a broad brush basis. Further affirmation will be filed and witnesses will go to the box and be cross examined, when a detailed examination of the party’s financial resources and needs will be taken, at the substantive hearing. With the benefit of further evidence and a detailed examination, the court will make its conclusion in the matter and any under provision or over provision in the MPS order may be set off if it is fair and just so to do.
The father’s ability to pay
62. The husband’s financial position is set out in his Form E and his three answers to questionnaire.
63. The husband says he is not a person of substantial wealth, his only income being a fixed monthly salary at the rate of $25,000 for 2010 and 2011, and $30,000 for 2012 from his employer K Ltd. Although the husband is the registered holder of 39% shareholding of K Ltd., he says, he is holding the company shares as nominee for a brother. As to the interim MPS in the sum of $45,000, he says, he has been made to pay what he cannot afford to pay and has resorted to his depleting savings and, having exhausted his savings, obtaining loans. His current monthly expenses are $114,647, inclusive of the interim MPS of $45,000 per month, which is well beyond his alleged monthly income, and this does not include any personal or monthly mortgage loan repayment.
64. The husband says he used the sale proceeds of his previously owned property in Kowloon to pay the down payment in the sum of $1,099,860 for the purchase of Royal Palms property in 1996. His late mother paid the mortgage repayment for him before she passed away in 2006. Thereafter, he used his savings (including the proceeds of sale from the said Kowloon property) to make the monthly mortgage repayment. In 2007, the husband arranged a re-finance of the Royal Palms property and obtained approximately $2.45 million to finance the subsequent mortgage repayments. Later on, as his financial position became worse, he borrowed money from banks and K Ltd to meet the mortgage repayment and his expenses.
65. For the period from 1 April 2011 to 31 March 2012, he borrowed $1,836,626.97 from K Ltd. From 1 April 2012 to 31 August 2012, he borrowed a further $525,127, making a total of $2,362,753.97. It appears that the husband’s drawings from K Ltd are regularly made.
66. In the husband’s answers dated 22 February 2013 to the wife’s questionnaire, he says his friend WSH usually pays for some of his expenses and later he would withdraw funds to reimburse her out of his Bank of China account. During the period from about January 2010 to July 2011, the average monthly withdrawal is around $85,000.
67. The husband has been able to afford a standard of living way over the affordability of his alleged monthly income for the parties since 2004. That whether he has the means to pay, he can borrow or he has made arrangements with his family or family business to pay for it is another issue that will be left to be sorted out at the substantive hearing of the question of ancillary reliefs. Still, there has not been any significant change in the financial circumstances of the husband since the separation of the parties. The way I see it, there is no reason why the husband should not continue to provide, as MPS, the wife and the child a standard of living comparable to what they have had since marriage.
68. It is trite that resources may include the husband’s ability to provide funds by overdrafts or through loans for the purpose of MPS provisions.
69. Altogether, I am satisfied on the balance of probabilities that the husband is able to pay the said sum of $52,310 per month (see para [57] above) as MPS.
70. The issue on the husband’s financial resources has remained a continuing source of disputes throughout these proceedings. The wife says the husband is a very rich man owning landed properties in the PRC and substantial shareholdings of a thriving family business of sports accessories that was left by his late father and is operated through K Ltd and other companies of the same group. Time will tell whether the wife is correct. Yet again, I should leave the issue to be sorted out at the substantive hearing.
Conclusion
71. I consider an order that the husband is to pay a monthly sum of $52,310 to the wife as MPS for her and the child would do broad justice to the situation. The husband has paid $45,000 per month plus the monthly rent of $20,800 for the serviced apartment during the period from April 2012 to August 2012, which means he has paid $13,490 more than the said sum of $52,310 for about four months. He has stopped paying the rent, which means he has paid roughly $7,310 less, since September 2012. In view of the above, I consider it is just for him to pay the wife MPS in the sum of $52,310 from April 2013. As stated in his Form E dated 3 September 2012, the husband had $198,836.73 in his bank accounts. Taking into consideration the cash at bank and his financial conditions as a whole, I allow him to pay the outstanding MPS for the period from April to June 2013 by three monthly instalments.
Costs
72. On the face of it, the adjournment of the hearing dated 19 November 2012 was occasioned by the wife’s need to amend the summons dated 23 August 2012. I consider that the wife shall pay the husband’s costs of the hearing dated 19 November 2012, being costs thrown away by the amendment.
73. The husband’s offer is in no way close to the order I made. Apart from the costs of the hearing dated 19 November 2012, tentatively, I consider that the husband shall pay the wife’s costs of this application.
Order
74. It is ordered that:
(a) the husband is to pay the wife $52,310 per month for her and the child as MPS commencing from 1 April 2013 and thereafter on or before the 1st day of the following months until further order;
(b) the husband is to pay the wife the outstanding MPS for the period from April to June 2013 in the sum of $21,930 by three monthly instalments, the 1st payment of $7,310 on or before 1 August 2013, the 2nd instalment of $7,310 on or before 1 September 2013 and the 3rd instalment of $7,310 on or before 1 October 2013.
75. It is ordered nisi that:
(c) The wife is to pay the husband’s costs of the hearing dated 19 November 2012 with certificate for counsel’s attendance.
(d) Subject to the paragraph (c) above, the husband is to pay the wife’s costs of this application.
(e) This order nisi becomes absolute after 14 days of the date hereof unless a party has applied to vary the order.
| |
( K.K. Pang ) |
| |
Deputy District Judge |
Mr. Jesse H.Y. Kwok of Messrs. Jesse H.Y. Kwok & Co., for the petitioner
Mr. Eugene Yim instructed by Messrs. Joseph C.T. Lee & Co. for the respondent
|