CLK v. LHKK

FCMC 11843 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11843 OF 2008

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J U D G M E N T

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Introduction

1. This is an application by a Petitioner wife for maintenance pending suit pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).  The wife also seeks provision for the two children of the family.

2. The husband is 68 years old and his wife 51.  It is the husband’s second marriage. He has three grown up children by his first marriage, a son and two daughters.  The main dispute, and one to be determined at a later date, concerns the ownership of two substantial properties on the south side of Hong Kong Island.  It is not disputed that the husband originally inherited these properties from his own father.  Now he claims that he holds one on trust for his elder son by his first marriage and the second for his younger sons by his present wife. He states that both he and the wife hold life interests in these properties. The wife disputes this.  Thus, there is likely to be argument concerning, amongst other things, the place of inherited property within matrimonial proceedings and how such properties can and should be treated on an application for ancillary relief.  Further the place of the matrimonial home within such proceedings and indeed the definition of a matrimonial home itself is also likely to come under scrutiny.

3. There are other assets, including a number of properties and a large number of companies.  The precise extent of the husband’s asset base is presently unknown.

4. The husband has also transferred shares and other funds into the name of his eldest son.  This took place shortly before the wife issued divorce proceedings.  The wife is considering issuing a s.17 application.

5. Thus the dispute has developed into an argument between the two family lines, with the children of the husband’s first marriage pitted against the wife, something the husband says that he had hoped to avoid.  

6. In the short term however, the wife has issued an application for maintenance pending suit and it is that matter which now falls to be determined by the court.  She also seeks provision for the two children of the family.    

The central issue

7. The central issue is how much the husband should now pay to the wife as maintenance pending suit, bearing in mind his ability to pay and the high standard of living acknowledged to have been enjoyed by the parties previously.

8. The wife wishes to live separately from the husband.  She wishes either the husband to move out of the Shouson Hill property or, in the alternative she says that she will move out with the younger son.  The elder son is presently at boarding school in England.  He returns to Hong Kong for each school holiday and suitable accommodation needs to be provided for him when he is in Hong Kong.  In each alternative the wife asks to be provided for appropriately.  In her last affirmation she sought an order in the region of HK$345,000 per month.  This includes provision for rent and for maintenance for the younger son.  The husband has offered to undertake to continue to pay for the expenses of the elder child.  She is willing to accept that undertaking.  She puts it thus:

63. I expect I will need a flat of no less than 2,000 square feet big with 3 bedrooms to live with A and A when he is back for holidays.  We will also need a domestic helper and a driver.  I expect the rent of such a flat in the southern part of Hong Kong where we used to live during the marriage will be in the region of $70,000 a month.  I will also need an upfront payment for the property agent’s commission, legal costs and a sum equivalent to 3 months’ rent for deposit and advance payment for the rent of the first month.

64. I have set out in my 2^nd Affirmation filed on 8^th December 2008 the amount of interim maintenance I seek.  In view of my suggestion above that the children and I move out of the Shouson Hill Property, I now revise the figures of interim maintenance below.  As I have care and control of the children, I propose that A’s expenses be paid to me so that I can make various payments for him directly.  This will minimize the need for me to have contact with the Respondent and/or A (the eldest son) to ask for money to pay for A’s expenses.  I seek the Respondent’s undertaking to continue to pay for A’s education and necessary expenses in England and expenses for him to come back to Hong Kong for holidays.

65. I estimate that A (the younger son) and I have the following monthly expenses:-

Item	My expenses	A's expenses
Rent	70,000	0
Utilities	4,500	0
Food at home	20,000	0
Meals out of home	20,000	0
Household expenses	6,000	0
Domestic helpers (2) anda driver	14,124
Transport	3,000	1,000
Clothing / Shoes	75,000	1,140.99*
Personal grooming(includinghaircut and cosmetics)	20,000	0
Holidays	25,398	12,641(for both children)
Medical(including Chinese medicine)	5,000	1,500
Insurance premia –AIA,Hang Seng Life andMetlife Insurance	3,534	5,129.29*
Contribution to parents	6,000	0
Dependent family members	3,000	0
Estimated legal costs incurred in these proceedings	20,000	0
Others (specify) –presents, dry clean etc. Massage ($3,500)	8,500	0
School fees	0	4,800
School uniform	0	500
Extra tuition fees and extra curricular activities	0	9,433.15*
School books and stationery	0	1,000
Lunches and pocket money	0	1,500
Entertainment and presents	0	2,486.98*
Total monthly personal expenses	304,056	41,131.41
TOTAL	345,187.41

* figures adopted from Respondent’s Form E

9. The husband says that he cannot afford to pay the wife what she seeks.  He has offered to undertake to continue to pay for all the expenses on the home, the children and otherwise, which he says amounts to approximately HK$180,000 per month.  He wishes the parties to continue to live under the same roof.  He says that he will pay the wife an allowance of HK$30,000 per month.

10. As can be seen from the above schedule, the wife also seeks a contribution towards her litigation costs.

 Background

11. The parties married on the 24 February 1992 and separated in September 2008.  They have two sons, A, who is 16 and presently studying at boarding school in England and the younger A, who is 12 and presently still living at home and attending a school in Hong Kong.

12. The wife issued proceedings based on the husband’s unreasonable behaviour in October 2008.  That petition is presently defended.  It is hoped that in due course these proceedings can be compromised, either on the basis of cross decrees, or possibly by consensus on the basis of one-year separation with consent.  I would urge the parties to be sensible in this respect.

13. Clearly emotions have been running high with allegations and counter allegations being made by one against the other.  On the 8 December 2008, the wife issued an injunction, seeking a non-molestation order.  She also sought an ouster order.  Sensibly the parties compromised and both entered into non-molestation undertakings and have to date continued to live under the same roof.  The wife says that this is not sustainable longer term.

Maintenance pending suit

14. The ordinance states that the only governing principle is that the court shall make such order, as it considers reasonable.  (See s.3 Matrimonial Proceedings and Property Ordinance Cap. 192).  Consequently applications such as these are approached on a broad-brush basis.  A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime.

what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See also paragraphs 16.17 of Rayden, 18^th edition).

Further

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……”

(Ref paragraphs 16.18 of Rayden, 18^th edition).

15. Likewise the court may look to the assertions made by the payee and take a similar approach when looking at her means and alleged reasonable requirements.  The court should look to the reality of the situation, in so far as it can, in relation to bare assertions made by either the husband or the wife.    

Litigation costs

16. In so far as the law on the funding of litigation costs is concerned, it has been accepted by both counsel that Currey v Currey [2006] EWCA Civ 1338, is of some assistance.

17. In Currey v Currey [2006] EWCA Civ 1338,

“the conditions for a ‘costs allowance’ are as follows:

(1)        That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2)        That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3)        That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)        That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

(See Family Law, May 2007, Interim Costs Provision out of Costs Allowance, by David Burrows. p.427).

18. There is also a requirement to undertake an overarching enquiry

At para [20], Wilson J held that the initial, overarching enquiry should be into whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means. Therefore, to the extent that an applicant has assets (as in C v C), she has to demonstrate that they cannot reasonably be deployed (whether directly or as the means of raising a loan) in funding legal services …… Other factors may well come into play.  The subject matter of the proceedings would always be relevant, as would the reasonableness of the applicant’s stance in the proceedings.

(See K v C (FCMC 5508/2005, 7 August 2007 and HRT v RHT (FCMC 5488/2006, 21 June 2007 unreported))

The Evidence

19. I must now turn to consider the issues, the law, and the parties’ evidence as set out in their affirmations filed together with the submissions made by counsel.

Discussion

Should the parties continue to live together or separately?

20. The husband says that the parties should continue to reside under the same roof – namely a 1600 square foot property in Shouson Hill, held jointly in the names of both the husband and the wife.  As I have said they have been living separately but under the same roof since 4 September 2008.  Initially the husband was in the master bedroom and the wife stayed in the elder son’s room.  When the elder son returns from England on holiday the wife and elder son then share his bedroom.  The wife complains that this is far from satisfactory.

21. The husband now argues that living under the same roof is the only viable alternative at present, notwithstanding the fact that even on his own case, the parties have clearly found this difficult in the most recent past. Prior to the non-molestation undertakings being entered into, the husband’s solicitors wrote to the wife’s solicitors on the 24 October 2008, as follows:

 We have instructions to put on record that on 21^st October 2008, your client had encouraged the elder son, A (who had come back to Hong Kong for holidays) to join hands with her to mock and bully our client by saying that “he is old and of no use”, “he is mentally incapacitate” and “he is insane to have listen to his son of previous marriage”, etc.  Even worse, your client falsely accuse our client of having affairs with “wives of his friends” and his “daughter-in-law”.  Our client was so upset by your client and the son’s behaviour that his blood pressure shot up and felt very sick.  When our client consulted the doctor the next day it was found that both his blood pressure and creatinine level (indication of kidney/renal function) were so high that it may be life threatening.  In the circumstances, please advise your client to restrain from harassing, molesting or interfering with our client or to encourage the minor children to take side with her to do so.  If your client shall repeat such behaviour, we have instructions to seek injunctive measure from the Court.

And again in his affidavit of the 17 December 2008:

22. On 16^th November 2008 and soon after my telephone conversation with A, the Petitioner yelled at me and threatened me that if I do not pay her HK$230,000 per month as per her solicitor’s letter of 7^th November 2008, she will tell everyone that I am broke and impotent.  She then came forward and pinched my face.  I shrug off her hand and she fled into the guest bathroom and locked herself in there.  I asked her why she pinched my face and she said that she can pinch me whenever she wanted to.  I ignored her and likewise went back into my master bedroom to watch TV.  With my health condition, it is unimaginable how I could chase her when she is 18 years younger and much healthier and stronger than me.

22. The wife says that generally things have improved since the parties entered into non-molestation undertakings but

3.  … The Respondent, however, regrettably continued to speak badly of me to others.  I see this as a form of harassment which did not and does not help reduce the stress of the litigation and runs counter to what I had hoped would follow from proper observance of the undertakings given.  Quite apart from this, the current living arrangements were and are by no means satisfactory.  During the Christmas holidays when A came back from England, he again shared the room I occupy.  A’s room, currently packed full of things, is not sufficiently big enough, for A to also occupy, even temporarily and A did not want to share a room with the Respondent.  I had to sleep in the 26 inch wide pull-out bed, with A in the main bed in what was originally his bedroom.  I tried to discuss with the Respondent the possibility of changing bedrooms with him, so that I could occupy the master bedroom and share it with A when he is back on his holidays.  Until last week, there was no reply to the letter issued by my Solicitors on 7^th January 2009….

 On or about 11^th February 2009, I again asked the Respondent if he would change rooms with me knowing that A was coming back on the 13^th.  The Respondent said to me that he did not mind changing bedrooms with me but only temporarily, whilst A was home.  Pursuant to his offer, on 12^th February 2009, I instructed the maid to help move the Respondent’s belongings from the master bedroom into A’s room.  The Respondent is now occupying A’s bedroom.  To my very great surprise, my solicitors received a letter from the Respondent’s solicitors, on 13^th February 2009, complaining that I have breached my non-molestation undertaking, by having unilaterally “excluded” the Respondent.  There was also a threat of bringing contempt proceedings against me.  I do not understand why the Respondent reneged on his own voluntary offer and instructed his Solicitors to write the said letter.  I confirm it was only pursuant to the Respondent’s offer that I proceeded as I did.  I did not unilaterally “exclude” the Respondent as alleged.  The Respondent also confirmed to A, when he met him off the plane on 13^th February that he had changed bedrooms with me.  I therefore deny I am in breach of my undertaking. 

23. The husband says that he cannot move out of the Shouson Hill property because he is old and suffering from ill health.  He says that he needs the assistance of the domestic helpers and the driver and that he wishes to continue to live with his children.  Further he says that he cannot afford alternative accommodation.

24. With respect I do not accept the husband’s position in this regard.  On either side’s account it is clear that living under the same roof has been extremely difficult and is likely to be untenable longer term.  At present the litigation is very active.  It could take many months before the situation is resolved satisfactorily – either by agreement or ultimately by court order.  Clearly living under the same roof is only likely to increase the strain on both parties.  I do not believe that this can be beneficial for the husband’s health.

25. Either the husband moves out of the matrimonial home, or the wife does.  The parties sensibly entered into an agreement concerning the children and according to the consent order of the 9 January 2009, they now have joint custody of the boys with care and control to the wife and reasonable access to the husband.  Therefore the boys will reside for most of the time with their Mother, but will see their Father frequently.

26. There are options here and ones that I did raise during the hearing.  The wife owns a small flat in Convention Plaza.  The lease is up in August – but it would be possible to terminate the lease early.  In that event the mortgage would need to be paid on the property, in the sum of c HK$25,000.  At present the rental defrays the mortgage expenses. One option would be for the husband to live in that property, at least in the short term.  He says that it would not be suitable.  It is a 700 square foot property and therefore I accept that it would be far from ideal either for the husband or indeed for the wife and the boys.  If however, the husband is seriously concerned about expenses, it seems to me that this might be an option worth considering, at least in the short term.

27. Another alternative would be the Happy Valley property.  The husband purchased this property in July 2008 and 19/20 shares are held in the name of one of his daughters.  It is empty at present.  I accept that the husband purchased it as an investment.  No evidence was produced concerning the present habitability of this property – but again on the face of it, this may be another viable alternative.

28. The wife also suggested that the husband consider living with his elder son.  The husband says that this would not be possible.

29. Having considered all these various factors it seems to me that it is not appropriate for the parties to continue to live under the same roof.  In the event that the husband does not elect to move out of the Shouson Hill property, say within the next 28 days, then the husband shall pay the wife HK$70,000 per month as a rental allowance in order to enable her to move into a new property in the short term.  I accept that in addition the wife will need an increased allowance for the first month to cover the cost of the rental deposit and property agent’s commission – say an additional HK$175,000.                

How much maintenance pending suit should the husband pay to the wife for herself and the children, bearing in mind the standard of living enjoyed by the parties and the husband’s ability to pay? 

Standard of living

30. It is clear that the parties have enjoyed a high standard of living historically.  It is accepted that the husband paid the wife an allowance of HK$30,000 per month for herself and a further HK$50,000 per month for the household expenses.  From this she was responsible for two maid’s salaries, fresh food expenses and other cash items.  The husband paid for the mortgages, the overdraft facility, utility expenses, grocery shopping, all expenses pertaining to the children, club fees and chits etc.  The wife states that the husband did not query whether the HK$50,000 per month was spent or not.  If there was any money spare she kept it – a claim that is borne out by her bank statement. Notwithstanding that I intend to use these figures as a yardstick going forward – to the extent that they are indicative of the sort of figures that the parties considered reasonable as an allowance for the wife’s own personal expenses, together with the household expenses.

31. The wife had access to six credit cards – three in her own name and three supplementary cards.  The majority of the statements for these cards are missing, although the wife says that she spent approximately HK$100,000 – HK$120,000 on these cards per month and that these expenses were also met by the husband.  The husband has since cancelled her supplemental credit cards and her membership of the clubs (The Hong Kong Club, The Hong Kong Country Club, The Hong Kong Jockey Club, The Hong Kong Banker’s Club and Kiangsu & Chekiang Residents (Hong Kong) Association).  Although I accept that in due course the wife would have to give up her membership to the clubs unless she was able to make an application in her own right, as membership generally ceases upon divorce, I agree with Ms Irving that to unilaterally cancel them now was churlish in the extreme.

32. The husband’s case is that the wife spent to excess on the credit cards, that she treated him as a cash cow and that in any event he cannot afford to spend at the same rate as before.

33. I await with interest the production of the credit card statements.  In the meantime on the evidence that I have before me now it is clear that a great deal of money has been spent on credit cards historically.  For example the wife has been able to produce part of the Amex centurion credit card statements held in the name of the husband for July, September, December 2007 and February, March, August and September 2008.  These are all for the period prior to separation.  Only the top page has been produced showing the credit card expenditure for the husband.  It also seems to be accepted that as well as the wife, the husband’s elder children are also signatories to this account.  In July 2007, HK$174,647.14 is referred to as payment received, of which only HK$40,675.20 was attributable to the husband.  The husband spent HK$33,057 at Versace Collections. In September 2007 HK$447,686.79, is referred to as the payment received, of which the husband was only responsible for HK$12,700.02 in his own name. In December 2007, HK$108,182.17 is referred to as the payment received.  It is unclear how much of this is attributable to the husband.  He spent HK$22,800 at Fook Lam Moon restaurant on the 30 November 2007.  In February 2008 HK$167,773.15 is referred to as the payment received and likewise a further HK$123,331.47 in March 2008, HK$214,515.38 in August and HK$123,667.27 in September.  I accept that this is certainly indicative of a high standard of living, which showed no signs of abating in the year or so prior to the divorce petition being issued.

Husband’s ability to pay  

34. The husband says that he cannot afford to pay the wife at the same level as before.  He says that he has always relied on overdraft facilities secured against the properties in Deep Water Bay and that now that the present overdraft facility of HK$32.5 million has almost reached its limit that he simply cannot afford more.  He says that he is relying on the good offices of his eldest son.  He receives an income of approximately HK$60,000 per month and says that he is willing to undertake to pay as follows:

a) … to continue to pay up to the date of final determination of the Court for all the household expenses including

30.1          Monthly mortgage instalments of the MH at Orchid Valley;

30.2          Utilities of the MH – electricity, gas and land line;

30.3          Management fees and rates;

30.4          All expenses relating to use of the car and the driver;

30.5          The domestic helper;

30.6          All expenses incidental to the driver and helper’s employment such as insurance and air-tickets, etc.

30.7          Food for the household up to $4,200/mth² (per H’s Form E³ [A2/288];

30.8          Others such as groceries, toiletries, etc up to $3,200/mth (per H’s Form E [A2/288]).

b) He further undertakes to continue to pay up to the date of final determination of the Court for the children’s expenses including

30.9          school fees;

30.10      private tuition fees;

30.11      medical and dental expenses;

30.12      insurance premia;

30.13      A’s reasonable travelling expenses between England and HK; and

30.14      All other reasonable expenses of the children such as pocket money, gifts, uniform, books, etc.

35. Counsel said in submissions that this amounted to HK$189,000 per month.  She did not explain how he could afford to pay for these sums other than by relying on the eldest son.

36. In response the wife asks me to look at the reality of the situation.  In particular she points to the fact that the husband transferred HK$6.4 million to the eldest son around about the same time that the divorce petition was issued.  The husband says that HK$5 million was for the renovation of the two houses.  A lot has been said to date about the renovation costs of these properties.  The wife was said to have been given an initial budget of HK$1 million which was then extended to HK$1.5 million.  Infact a much larger sum is alleged to have been spent, but it would seem, for no useful purpose.  The wife alleges that House X was close to completion when the eldest son took over the project in June 2008.  She alleges that he then completely gutted the property again.  He has since been given funds to complete the project, which he says have now been spent. During the hearing the husband produced two surveyors reports dated 13 February 2009, with photographs attached.  This shows that both houses are in a state of near total disrepair. The remarks for X state as follows:

 Due to large amount of defective works, the property is unlike to be in a reasonable liveable condition until remedial works have be carried out.  It is estimated that basic remedial work will require not less than six month.

37. With respect none of this makes sense.  Where has the money gone for the renovation works?  What works have been undertaken since July 2008?  Why isn’t this project close to completion – especially, if at Ms Yip asserts, the husband now wishes to rent out both properties so that they yield a rental income?

38. I am also conscious of the fact that the husband has also divested himself of many of his shareholdings, he says because of ill health, but again at a time when the wife has decided to end their marriage.

39. Historically the husband says that he used the over draft facility to invest in different projects.  In particular he invested in properties – especially those with good redevelopment potential.  It appears that the sale proceeds would then be off set against the over draft account on a running basis.  He has also invested in several other projects.

40. All in all I accept that historically money was never really an issue and to put it at its lowest, it now seems very odd indeed, not to say strangely coincidental that the husband is now allegedly without funds.  Clearly the husband has financial resources at his disposal, including the net equity in the two properties in Deep Water Bay.  He should take whatever steps are necessary to ensure that the wife and the two younger children are provided for appropriately pending the outcome of final ancillary relief.

How much should the husband now pay the wife as maintenance pending suit?

41. In the event that the husband decides to stay in the Shouson Hill property, he shall pay to the wife maintenance pending suit of HK$200,000 per month for herself and HK$20,000 per month for the boys i.e.

HK$70,000 – rental allowance (I accept the wife’s submission that this would be an appropriate amount to pay as rental for a property on the South side of Hong Kong island)

HK$50,000 – household expenses

HK$30,000 – personal allowance (I have used the amount paid to the wife previously as a rough yard stick when determining this amount together with the HK$50,000 for household expenses)

HK$50,000 – additional allowance to take into account monies previously spent on credit cards

HK$20,000 – interim maintenance for the two children of the family – (HK$15,000 per month for the younger child and HK$5,000 per month for the elder child)

42. I will also hold the husband to his undertaking as set out in paragraph 34 (b) above to pay inter alia for both son’s education costs, including school fees for both, extra tuition costs for the younger son and travel costs for the for the elder son.  In addition he will continue to be responsible for maintaining the overdraft facility for both Deep Water Bay properties and the mortgage instalments on the Y and Shouson Hill properties.  In the event that he does not live in the Convention Plaza property, the present arrangement shall continue whereby the rental payments are used to defray the mortgage costs.  The wife will be responsible for her own expenses i.e. rental, utilities, management fees, rates, food, staff etc.  She will also be responsible for the younger son’s transport costs, clothes/shoes, holidays, extra curricular activities, lunches, pocket money and other entertainment. It seems that private tuition costs and extra curricular activities may be a bone of contention between the parties. As they have joint custody of the two children of the family these items should be agreed between them, but in the event that they are not able to do so at present and for the avoidance of doubt the husband shall be responsible for private tuition costs of an educational nature and the wife shall be responsible for the costs associated with any other extra curricular activities.  

43. In the event that the husband moves out of the Shouson Hill property and the wife remains then he shall pay the wife HK$130,000 per month for herself and HK$20,000 for the boys, subject to the same undertakings set out above.

44. I appreciate that this amount is a lot lower than that claimed by the wife and a lot more than the husband is prepared to pay.  Without further evidence it is impossible for me to be any more accurate in determining the standard of living previously enjoyed by the wife and the two sons.  In any event I am satisfied that it ensures the wife a very comfortable standard of living in the interim.  In the circumstances it seems to me to be reasonable to order that the husband pay this sum.  If there has been any under payment, or indeed over payment, that may be rectified at a final ancillary relief hearing.  

Should the husband also be ordered to make a contribution towards the wife’s litigation costs?

45. The wife also asks for HK$20,000 per month as a contribution towards her litigation costs.

46. As Ms Yip pointed out for the husband the Family Court in Hong Kong has consistently of late relied on the guidance provided by the English Court of appeal case, Currey v Currey.  I will therefore adopt the two-stage approach identified by Wilson LJ.

That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2)        That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3)       That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)       That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

47. On the wife’s evidence it seems to me that she does have other assets at her disposal, which may be reasonably deployed by her to pay for legal costs, in particular she has some cash savings.  I accept though that it is unlikely that she could obtain legal services on the basis suggested by 3) above or that she would be eligible for legal aid.

Overarching enquiry

48. Overall I am not of the view that this is a case, which warrants the granting of litigation costs as part of a maintenance pending suit order.  It seems to me that the wife should be in a position to continue to avail herself of suitable legal representation going forward.  

Undertakings and Orders

49. Upon the husband’s undertaking to continue to pay for the children’s expenses up to the date of final determination of ancillary relief including:

school fees;

private tuition fees;

medical and dental expenses;

insurance premia;

A’s reasonable travelling expenses between England and HK; and

 all other reasonable expenses of the children such as    pocket money, gifts, uniform, books, etc.

IT IS ORDERED THAT

1)  In the event that the husband elects not to move out of the Shouson Hill property within the next 28 days, the husband do pay to the wife maintenance pending suit for herself at the rate of HK$200,000 per month commencing on the 15 May 2009 until further order. On the 17 April the husband shall pay the wife an increased amount of HK$375,000. In the intervening month the husband shall continue to pay the outgoings on the Shouson Hill property as set out in 34 (a) above.

2)  In the event that the husband does elect to move out of the Shouson Hill property, the husband do pay the wife maintenance pending suit for herself of HK$130,000 per month commencing on the day following the day upon which he moves out until further order. Pending the husband moving out he shall continue to pay the outgoings on the Shouson Hill property as set out in 34 (a) above. The husband is to move out within the next 28 days.

3)  The husband do pay the wife interim periodical payments for the boys in the sum of HK$20,000 per month, HK$15,000 for the youngest child and HK$5,000 per month for the eldest child, such payments to commence on the same day as the substantive payments for the wife set out above.

Costs

50. Costs shall be reserved. There shall be certificate for counsel.