WONG TSANG SHUI KAM v. WONG KIN WAH

IN THE COURT OF APPEAL

1992, No. 157
(Civil)

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. This is an appeal from the decision of Judge Rattigan given on 8th September last year in the course of a wife's application for ancillary relief in proceedings which she was bringing against her husband for divorce and which at the moment are still pending.

2. The appellants are neither the wife nor the husband. The first is Flower Engineering Limited, a company having only two shareholders and directors, both being the sisters of the husband; the second is Wong Mee Wa, one of those sisters; and the third the Huapoa Construction Company Limited, a company in which the husband once held shares but of which he is now only a director and an employee.

3. The order of the judge restrained the appellants variously from dealing with three specific properties, to which they hold the legal title, or with the proceeds of a fourth property recently sold by Flower Engineering; it further required Flower Engineering and the husband to give an account of the said proceeds. The restraining orders were not expressed to be interlocutory but it seems obvious that they were so intended. We note also that the order does not contain the usual undertaking as to damages.

4. Dealing with the substance of the matter, rather than the form in which it at times unsatisfactorily appears in the papers before this and the lower court, the wife's case was that the beneficial ownership in the four properties is, or was, either in herself or her husband; and that if the restraining orders are not upheld there is every likelihood that little will remain to satisfy her application for financial relief, which we understand will come on for hearing next month.

5. By the submission of Mrs. Spruce, who now, but not below, appears for all the appellants the appeal is confined to two approaches. First it is suggested that the judge had no jurisdiction to make the orders. In this respect Mrs. Spruce makes three points. The first is based, with respect, upon a complete mis-reading of Rule 74(3)(b) of the Matrimonial Causes Rules. The second imports a confusion between what is alleged and the evidence which is put forward to support the allegation. We will say no more about these two points. The third is that the notice, on which the proceedings were based, duly conforming, as it did, to Form 9 of the forms attached to the rules, in its terms compelled the appellants to file evidence before the judge below, whereas the rule itself only provided that the appellants might do so. This defect, so it is suggested, renders the notice incontestably bad, null and void and thus incapable of providing a foundation of jurisdiction for the judge.

6. We are unable to accept that argument. It may be that the Rules Committee needs to look again at the proforma provided in the forms, but we are not persuaded that the mistake, which must have been obvious to any recipient taking legal advice, was sufficient to deprive the notice of all legal effect. Indeed the appellants themselves do not appear to have thought so at the time, for two of them did in fact file evidence and, as is apparent from the judge's order, all three were represented at the hearing.

7. We are satisfied therefore that the judge did have jurisdiction to deal with the application. It only remains then to consider whether, as is questioned by the appellants, there was sufficient evidence before him to justify his making the orders. At the moment that evidence is on affidavit. It may be that when the time comes there will be some conflict of evidence and in view of its proximity we think it appropriate at the moment to say no more than, as regards the two workshops and the proceeds of sale of the Whampoa flat, that if the wife's affirmation is to be believed then, taken together with the other circumstances of the situation, it provided in our view sufficient evidence on which the judge could have exercised his discretion to make restraining orders. There spring to mind immediately the clear and apparently strong family connections, the fact that the agreement for the workshops was taken out in the husband's name alone and the apparent lack of frankness shown by the husband in undertaking to the court not to dispose of certain shares that he had in fact already disposed of. We also note that Mrs. Spruce abandoned, for what might perhaps be described as logistical reasons, an attempt to show that there was evidence that the wife's affirmation could not possibly be accurate.

8. We take a different view with regard to the Kornhill property. We find no evidence to suggest, as the wife alleges, that the husband had financed the whole of the purchase price. What is put forward in support of that suggestion seems to us mere speculation.

9. We are left then with the discovery order. Mrs. Spruce concedes that in appropriate circumstances an interim order of that kind could be made. But, in our view, it would be an exceptional order and, having regard to the particular circumstances in this case, we are not satisfied that they were sufficiently exceptional. We think the judge was plainly wrong to make that order. We note that even were it a final order its form would leave a great deal to be desired, for example, as to the time or way in which the account should be prepared.

10. Therefore, although we would to that extent allow the appeal we nevertheless take the view that it would be quite wrong to continue the restraining orders as they are presently drafted, particularly with regard to the absence of any undertaking as to damages. If the wife is prepared to give that undertaking, well and good. If not we shall have to consider the matter further. Perhaps Miss Yuen would like to take instructions.