HSYC v. CLTK

FCMC 11141 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11141 OF 2013

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J U D G M E N T
(Maintenance pending suit/Interim maintenance)

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Introduction

1. This is an application by a Petitioner wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the two children of the family; boys aged 13 and 10 years, pursuant to s.5 of the same ordinance.

The main issues

2. In broad terms there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the two children of the family on an interim basis.

Background 

3. The parties married in April 2000 and separated on the 8 December 2011 when the husband left the former matrimonial home following allegations by the wife of infidelity on his part. The wife issued a divorce petition on the 1 August 2013 and the decree nisi was pronounced on the 9 October 2013. The parties sensibly came to terms in relation to the boys and they subsequently agreed joint custody with care and control to the wife and reasonable access to the husband.

4. The wife has been a housewife since marriage. The husband is a Managing Director of a family jewellery business.

Each party’s case

The wife’s case

5. The wife’s case is that the husband works for the family business – which was established by his parents many years ago. It has now developed into what appears to be a substantial jewellery company with X retail shops in Hong Kong dealing in all kinds of jewellery and precious stones including diamonds. It seems that this business has evolved over time and that originally the company sold more traditional gold items and jewellery. The wife also says that the family business holds a number of properties through various corporate structures. Although the wife accepts that the husband’s actual income is fairly minimal, it is her case that a significant portion of the family’s regular monthly expenses were paid for by the husband’s family company/ies and that this is a financial resource that is currently available to the husband. 

6. The wife points out that she is totally reliant on the husband financially. The parties married when she was only 24 and they had their first child within the year. She says that she became a housewife by agreement. Although she has a degree in Hotel and Catering Management she has not worked since marriage and even prior to marriage her work experience was fairly minimal. She also suffers from rheumatoid arthritis, which may make an immediate return to the workforce problematic.

The husband’s case 

7. In contrast it is the husband’s case that he has had an easy life and that he is not actively involved in the running of the family business. Although he accepts that additional monies have been made available to him and his wife and children, he says that these monies are gifts from his parents and that this money is not something that he is entitled to as of right. In his affirmation of the 25 February 2014 he said at paragraph 8 that

8.  Being the youngest son of my parents, I am not expected by the family to take an active role in the family business nor to make any contribution to the business.  I am not very interested in running business or working.  All along, I have been leading a relatively unambitious and relaxing life.  I only spend a few hours or less on work every day and do not need to attend work at the company on the daily basis.

8. It is the husband’s case that his parents have cut down on their financial support because a) the wife’s maintenance claims have increased significantly, b) the wife refused to let his parents see the grandchildren and c) the wife has made a claim against the property in which she is presently living, which is a property owned by a family company. He says that this has angered his parents.

9. Thus it is the husband’s case that he does not have the financial resources to pay the wife as requested. The husband says that prior to separation he paid the wife HK$37,000 per month, but that recently the wife’s requests for payment have increased significantly. It is still not clear to me, even following the hearing what expenses were historically covered by the sum of HK$37,000 per month and what expenses were paid directly, on the husband’s case, by the family business and/or his parents. 

Each party’s respective proposals

10. The wife seeks an undertaking from the husband that she be permitted to continue to reside with the children in the property in which she is currently living – “the C Road property”. In addition she seeks either a monthly payment of HK$80,000 or a monthly payment of HK$58,197 plus an undertaking by the husband that he continue to pay the utilities (electricity, gas, water, telephone, management fees, rates and government rent (if any) on the “C Road property”, plus the children’s school fees and other associated expenses. In addition the wife seeks an immediate payment of HK$50,416.54 being a reimbursement of monies spent by her for the family.

11. The husband for his part offers to pay the wife maintenance of HK$37,000 per month with a possible 5 – 10% uplift – i.e. HK$40,500 maximum. In addition he says that he will undertake to provide for the wife’s housing at the “C Road property”. Thus the maintenance payment proposed is to cover all of the other expenses, including it would seem the children’s school fees.   

The law

Maintenance pending suit and interim maintenance

12. The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. 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, when there is then every opportunity to achieve fairness by means of a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Applications for interim maintenance under section 5 of the same ordinance are approached in the same way. As Rayden points out

…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 paragraph 16.17 of Rayden, 18^th edition).

13. 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 ……” (See paragraphs 16.18 of Rayden, 18^th edition).

14. 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.

15. Although I was not specifically referred to further authority by either side it seems to me that the following section from Jackson’s Matrimonial Finance 9^th edition (paragraph 3.92) may also be of some assistance:

“When a party applies for an order for maintenance pending suit or for periodical payments, it is not a complete answer to the claim for the potential payer to say: ‘I have no income and no assets’. In one case, a husband with a very small income (in three successive years it was £42, £69, £60) who asserted that he was ‘living on borrowed money and staving off a number of creditors while he [was] developing certain properties’, was nevertheless shown to have maintained by means of bank loans a consistent standard of living over a substantial period: the court in effect held that if he could borrow for himself he must likewise borrow for his wife. The principle was that he was able to touch resources from which payments could be made; he had the ability to obtain the necessary money, albeit bank loans, and it was assumed that his ventures were such as not only to justify the loans but also reasonably to contemplate their repayment in due course ….”

16. Counsel for each side has also referred me to a number of cases. Mr Barnes for the wife has referred me in particular to the Court of Appeal decision HJFG v KCY [2012] 1 HKLRD 95 where it was held that:

“(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

  (d)  Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation the court should err in favour of the payee.”

17. Ms Li for the husband has also referred me in particular to the Court of Final Appeal’s decision in KEWS v NCHC [2013] 2 HKLRD 314 and argues that the same principles should be applied to the present case. Although I would accept that in the final analysis KEWS v NCHC may be of some relevance on final ancillary relief, it is hard to apply these same principles to a maintenance pending suit/interim maintenance application, given that there can be no findings of fact made in relation to the financial resources of the husband and the financial relationship between him, his parents and the family business.

The husband’s ability to pay 

18. Counsel for the wife makes a number of points in support of the wife’s basic contention that the husband does have the capacity to pay. He says that a) the husband has failed to make full and frank disclosure of his means, b) his portrayal of himself as being underemployed in the family business is a litigation tactic, c) his alleged drop in income is not supported by the evidence, d) his level of income and other financial resources are greater than he is willing to disclose and e) he is also in a position to meet the wife’s reasonable needs in the short term – by borrowing against assets if need be. 

a) Failure to make full and frank disclosure

19. It is alleged that the husband has taken a de minimalist approach to disclosure. As will be seen I would accept that to be the case. In his Form E dated the 13 November 2013 the husband states that he has an income of HK$33,000 per month. There is no reference even to a year end bonus. He does not provide information in relation to any other income nor to any other financial resources. He says that he is a 50% beneficial owner of a factory unit in Kwun Tong. He does not admit to owning any cars. He offers the wife HK$5,000 per month as maintenance for herself, HK$18,000 as maintenance for the two boys and a further lump sum for the wife of HK$500,000.K$18,000   

20. This pattern continued in his Answers to the Wife’s request for Further and Better Particulars dated the 30 January 2014. When he was asked about the source and purpose of the following deposits he responded as follows:

Transaction Date	Amt (HK$)	ANSWER
30th August 2011	30,487.00	Salary (August 2011)
3rd October 2011	31,517.00	Salary (September 2011)
1st November 2011	29,000.00	Salary (October 2011)
10th November 2011	13,900.00	Can’t recall
28th November 2011	29,000.00	Salary (November 2011)
19th December 2011	28,000.00	Can’t recall
4th January 2012	30,464.00	Salary (December 2011)
9th January 2012	59,000.00	Salary (January 2012) and year-end bonus
12th January 2012	19,618.10	Can’t recall
19th January 2012	29,000.00	Can’t recall
12th March 2012	59,609.00	Salary (February 2012) and year-end bonus
29th March 2012	34,838.00	Salary (March 2012)
12th April 2012	63,710.00	Can’t recall
7th May 2012	33,158.00	Salary (April 2012)
6th June 2012	32,000.00	Salary (May 2012)
10th July 2012	31,750.00	Salary (June 2012)
14th August 2012	54,000.00	Can’t recall
17th August 2012	33,655.00	Salary (July 2012)
27th August 2012	15,400.00	Can’t recall
3rd September 2012	32,620.00	Salary (August 2012)
3rd October 2012	32,188.00	Salary (September 2012)
10th October 2012	16,604.46	Can’t recall
31st October 2012	31,750.00	Salary (October 2012)
9th November 2012	71,491.00	Can’t recall
4th December 2012	31,750.00	Salary (November 2012)
19th December 2012	25,000.00	Can’t recall
3rd January 2013	32,599.00	Salary (December 2012)
18th January 2013	15,000.00	Can’t recall
1st February 2013	32,743.00	Salary (January 2013)
11th March 2013	56,500.00	Salary (February 2013) and year-end bonus
8th April 2013	57,739.00	Salary (March 2013) and year-end bonus
2nd May 2013	32,707.00	Salary (April 2013)
3rd June 2013	31,750.00	Salary (May 2013)
2nd July 2013	31,750.00	Salary (June 2013)
17th July 2013	19,000.00	Can’t recall
7th August 2013	33,535.00	Salary (July 2013)
2nd September 2013	33,097.00	Salary (August 2013)

21. This general approach continued in paragraph 22 as follows:

22.  Please state the sources and purposes of the following deposits and provide documentary evidence to support the Respondent’s answers:-

Transaction Date	Description	Amount (HK$)	ANSWER
9th January 2012	CA CASH DEPOSIT	54,000.00	Cash deposit Cannot recall purposes
12th January 2012	XFR FROM 00000XXXXXXX	59,000.00	Transfer from XXXXXXX Cannot recall purposes
24th February 2012	Sell-01211	64,188.97	Sold shares
14th March 2012	Sell-00735	35,861.12	Sold shares
14th March 2012	Sell-01203	13,923.88	Sold shares
26th March 2012	XFR FROM 00000XXXXXXX	50,000.00	Transfer from XXXXXXX Cannot recall purposes
24th September 2012	CA CASH DEPOSIT	68,000.00	Cash deposit for credit card payment
10th October 2012	CA CASH DEPOSIT	160,000.00	Cash deposit for renovation of the C property
12th October 2012	CA CASH DEPOSIT	13,500.00	Cash deposit for P’s CM
26th October 2012	CA CASH DEPOSIT	13,500.00	Cash deposit for P’s CM
26th November 2012	XFR FROM 00000XXXXXXX	13,500.00	Transfer from XXXXXXX for P’s CM
29th November 2012	CA CASH DEPOSIT	13,500.00	Cash deposit for P’s CM
18th February 2013	XFR FROM 00000XXXXXXX	25,674.84	Transfer from XXXXXXX Cannot recall purposes
15th March 2013	CA CASH DEPOSIT	13,500.00	Cash deposit for P’s CM
18th April 2013	XFR FROM 00000XXXXXXX	46,200.00	Transfer from XXXXXXX for credit card payment
3rd May 2013	CA CASH DEPOSIT	10,400.00	Cannot recall purposes
21st May 2013	XFR FROM 00000XXXXXXX	23,648.24	Transfer from XXXXXXX for credit card payment
7th June 2013	CA CASH DEPOSIT	13,000.00	Cash deposit for P’s CM
21st June 2013	CA CASH DEPOSIT	12,500.00	Cash deposit for P’s CM
12th July 2013	XFR FROM 00000XXXXXXX	23,452.00	Transfer from XXXXXXX Cannot recall purposes
19th July 2013	CA CHECK DEPOSIT	25,839.00	Check deposit but Cannot recall purposes
22nd July 2013	XFR FROM 00000XXXXXXX	17,000.00	Transfer from XXXXXXX Cannot recall purposes
9th August 2013	CA CASH DEPOSIT	12,500.00	Cash deposit for P’s CM
19th August 2013	XFR FROM 00000XXXXXXX	19,604.00	Transfer from XXXXXXX for credit card payment
2nd September 2013	CA CASH DEPOSIT	13,000.00	Cash deposit for P’s CM
19th September 2013	XFR FROM 00000XXXXXXX	31,626.29	Transfer from XXXXXXX for credit card payment

In general he said that

“The Respondent cannot recall exactly the source of each transaction but some of the cash deposits were gifts of moneys from the Respondent’s parents”.

22. It was therefore noted with some surprise that the husband’s counsel said as a matter of fact in her written submission that

16.  As shown in the said bank statements, the Husband also receives additional sources of moneys in particular financial support from his family by way of deposits into his saving and checking banking accounts: no..XXXXXXX and no. YYYYYYY.

23. She then went on to analyse the bank accounts and stated that on average an additional HK$15,800 per month had been deposited into the husband’s bank accounts in addition to his salary from August 2011 to March 2014. She referred to those items in Annex 1 of her submission. The schedule in Annex 1 was exactly the same as that set out in paragraph 20 above save that references to “can’t recall” had been deleted. Likewise she said that from September 2011 to February 2014 additional cash deposits were made into the husband’s bank account which averaged out at HK$8,440 per month. This is set out in Annex 2, which again is exactly the same as paragraph 21 above save that where the husband had previously said inter alia that he could not recall the purpose of some items. In Annex 2 those words have likewise been deleted. In summary she said that:

17.  In brief, for the said period as disclosed (from August/September 2011 to February/March 2014), the Husband had:-

a.  Take-home salary (inclusive of bonus) = HK$34,631 per month;

b.  Other deposits into saving account no.XXXXXXX = HK$15,800 per month;

c.  Other deposits into checking account no. YYYYYYY = HK$8,440 per month;

d.  Special gifts from the family for the Wife’s medical expenses = approximately HK$12,500 (also see paragraph 36 hereinbelow).

e.  In other words, apart from the special payments from the family for the Wife’s medical expenses, the average monthly financial resources of the Husband was approximately HK$58,800 (HK$34,631 + HK$15,800 + HK$8,440).

24. This had not been the husband’s case either on affidavit or in Answer to Requests for Further and Better particulars. Counsel goes on to argue that the husband’s financial resources have reduced over the last 6 months and that this can likewise be gleaned from the bank statements. She concludes 

a.  In other words, the present monthly financial resources of the Husband is about HK$40,360 (HK$34,631 + HK$5,731).

25. Thus it seems that the husband’s barrister was saying something quite different in her submissions as compared to the husband’s written evidence on oath. When challenged on this she said that she was acting on her client’s instructions. She also offered to put the husband in the witness box to give evidence presumably to make good the deficiencies of his written evidence. No notice had been given to the other side of her intention to do this. It goes without saying that this was a completely inappropriate way to proceed especially given the fact that hearings of this nature are generally dealt with on a submission only basis. Her application in that respect was denied.  

26. In such circumstances it is clear that the husband had taken a de minimalist approach to the discovery process. There was a “catch me if you can” element to it. He has failed to make full and frank disclosure of his means both in his original Form E and in his subsequent Answers to the wife’s questionnaire. His present financial situation is still far from clear. By way of example the wife says that the husband currently owns a Porsche Turbo and an Alfa Romeo. No cars have been disclosed by the husband to date. It is not clear how those cars are held. In his Answer to the Wife’s questionnaire the husband said at paragraph 39 that he paid HK$25,000 to “A Motors Ltd” for car repair of the Respondent’s [i.e. the husband’s] own car”. As things stand the information provided by the husband is still patchy and far from complete.

27. Mr Barnes also points out that this is not congruent with the husband’s spending patterns as identified in his credit card statements in any event. According to his counsel the husband has spent on average HK$37,230 per month from September 2011 to September 2013 on credit card expenditure. Although the husband’s counsel argued that this included expenditure for the whole family, it should be noted that the parties separated in December 2011, just two months after this record began. Put simply none of this adds up.   

b) The husband’s portrayal of himself

28. It is of note that it is the husband and not the wife who first described himself as a “play boy” although interestingly counsel for the husband made the point that his credit card spending was not reminiscent of a play boy life style. In any event although the wife acknowledges that the husband is not a director of the family companies and that any shareholding held by him is minimal nonetheless she makes the point that

8.  It is not correct that L only takes a “minor role” in the management and conduct of the family business.  F [the wife’s sister] runs the day to day management and controls the finances of the company while L is mainly involved in the design work from end products to interior decoration of the chain stores.  For many years L has been involved in selection of diamonds/stones, division of diamonds/stones, design of products, liaison with suppliers, attendance of exhibitions, purchase of raw materials, determination of product sale prices and design of interior decorations of the various shops.  Even though he does not hold any formal qualification in jewellery or interior design, L is very talented.  Many of the X jewellery products and all the store interior decoration are personally designed or created by him.  Since the opening of the first “X Diamond” store in 2001, the business has grown from one shop to 7-8 shops in prominent locations such as Causeway Bay, Tsim Sha Tsui, Mongkok and Kowloon Bay.  To put it simply, L is responsible for the frontline operations whereas his sister is responsible for internal management and the financial affairs of the company.

29. Time will tell which version is correct. On the face of it however the husband’s involvement in the family companies seems to be more extensive than he was originally prepared to admit.

c) Alleged drop in income

30. The husband’s main point is that in any event, regardless of the financial resources that were made available to him previously, that this has now changed. As indicated above it is not possible for me to make any definitive findings of fact in relation to this at the current stage of the proceedings. I would however accept the point made by counsel for the wife that if indeed that is the husband’s case then the onus is on him to provide clear and unequivocal evidence in support of what he says. To date such evidence has not been forthcoming.

d) Level of income and financial resources greater than he is willing to disclose

31. The husband says that he is willing to pay up to HK$40,500 per month as maintenance pending suit/interim maintenance, whilst at the same time he only admits, according to his counsel to having financial resources of HK$40,360 per month. In addition he offers other various undertakings. Thus even on the husband’s own case he is seemingly prepared to pay more than his income or his other financial resources permit. The only logical conclusion that one can reach in such circumstances is that it is extremely likely that the husband has an income and/or he has financial resources at his disposal that are greater than he is willing to disclose.

e) the husband is in a position to meet the wife’s reasonable needs in the short term – by borrowing against assets if need be. 

32. The husband admits to having a share in a factory premises. Thus there is a possibility that he could borrow against this property in the short term in order to fund the wife’s reasonable needs. There is also the suggestion that he owns two significant cars – which if shown to be true, could likewise be utilized for a similar purpose.   

What are the wife’s reasonable needs?

33. The wife produced the following schedule setting out her reasonable needs and those items that she believed were agreed as follows:

Item	W		H		Order sought
General/Household expenses
Housing	Agreed		Agreed		H undertaking *
Management fee	Agreed		Agreed		H undertaking +  autopay *
Utilities	2,000		Agreed		H undertaking + autopay *
Food	5,000		Not stated		$5,000
Household expenses	2,000		Not stated		$2,000
Car expenses	4,000		3,000		$4,000
Domestic helper	5,000		4,410		$5,000
Sub-total					$16,000
W personal expenses
Meals out of home	500		Nil		$500
Clothing/shoes	1,500		Nil		$1,500
Personal grooming	2,000		Nil		$2,000
Entertainment/presents	2,000		Nil		$2,000
Holidays	2,000		Nil (because MPS only for short period)		$2,000
Medical/dental	13,000		Agreed (gift from parents)		$13,000
Sub-total					$21,000
Children’s expenses
School fees	16,549		Agreed		H undertaking
Tuition	10,500		6,000 (gift from parents)		$10,500
·  Piano	2,500		--		--
·  Mathematics	1,400		--		--
·  Mandarin	1,700		--		--
·  English	4,800		--		--
School books and stationery	500		160-180		$500
Medical/dental	2,000		350-400		$2,000
Entertainment/presents	1,000		Nil (included in household expenses)		$1,000
Holidays	4,000		Nil (because MPS only for short period)		$4,000
Clothing/shoes	1,500		800 (gift from parents)		$1,500
Lunches and pocket money	1,600		Nil (included in household expenses)		$1,600
Other transport	500		Nil (included in household expenses)		$500
Uniform	600		250-270		$600
Sub-total					$22,200
Total					$59,200

34. I have marked with an * those items which appear to have been agreed. The husband said in court that he would undertake to pay or to provide for the wife’s housing at the “C Road property” and to undertake to pay for the management fees and utility costs. He did not dispute the food costs and was willing to agree the domestic helper costs at HK$4,500 per month. In so far as the wife’s medical expenses were concerned (injections for her arthritis) this was agreed at HK$12,500 per month – being the actual historical cost of the injections. In so far as the extra tuition fees were concerned the husband said that he thought that the sum of HK$6,000 per month was more appropriate although he added that he would be willing to go up to HK$8,000 per month. Historically the husband alleged that the parties had paid HK$5,000 – HK$6,000 per month for the children’s extra tuition. He challenged the medical/dental expenses and countered with HK$900 – HK$1,000 per month. He said that the children did not take lunch at school and did not need pocket money. The husband did not comment on the wife’s own expenses and merely reiterated that he did not have the means to pay.

35. Having heard both parties counsel I will allow the following expenses for the wife and the two children of the family:

Item					Order sought
General/Household expenses
Housing					H undertaking *
Management fee					H undertaking +  autopay *
Utilities					H undertaking + autopay *
Food					$5,000
Household expenses					$2,000
Car expenses					($4,000 #)
Domestic helper					$4,500
Sub-total					$11,500
W personal expenses
Meals out of home	500				$500
Clothing/shoes	1,500				$1,500
Personal grooming	2,000				$2,000
Entertainment/presents	2,000				$2,000
Holidays	2,000				$2,000
Medical/dental					$12,500
Sub-total					$20,500
Children’s expenses
School fees	16,549				H undertaking ?
Tuition	10,500				$8,000
·Piano	2,500		--		--
·Mathematics	1,400		--		--
·Mandarin	1,700		--		--
·English	4,800		--		--
School books and stationery	500				$500
Medical/dental	2,000				$1,000
Entertainment/presents	1,000				$1,000
Holidays	4,000				$3,000
Clothing/shoes	1,500				$1,500
Lunches and pocket money	1,600				$1,600
Other transport	500				$500
Uniform	600				$600
Sub-total					$17,700
Total					$49,700

36. At present the wife still has the use of a supplementary credit card with a limit of up to HK$10,000 per month – which she tends to use for car related expenditure i.e. petrol and car parking etc. I have therefore not included the care expenses in the calculation above. This order is however made on the premise that the husband will continue to undertake to make the supplemental credit card available to the wife and that she will be able to use it up to a limit of at least HK$4,000 per month. There was also some ambiguity in relation to the children’s school expenses. When I queried this with counsel she said that the husband’s offer of HK$40,500 per month was inclusive of school fees. However there seemed to be some suggestion that the husband would undertake to continue to pay the school fees directly. I am therefore proceeding on that premise. If the husband refuses to pay the school fees directly then that amount will likewise need to be added to the monthly maintenance figure.

37. Although the husband has repeatedly said that he does not have the financial resources available to pay the wife more than HK$40,500 per month plus the additional undertakings agreed to, I am satisfied that he should be able to pay the sum ordered.

Back payment of HK$58,197   

38. In addition the wife seeks a further sum of HK$58,197 which she says represents monies spent by her which should have been reimbursed by the husband for things like the domestic helpers salary, clothes for the children, balance of tuition fees etc. This is disputed by the husband – who claims that the wife has already been reimbursed for many of those items. He also says that the wife sought and he paid on her request far more than the HK$37,000 per month originally paid following the separation. On his case the following sums were paid following the separation:

Month/Year	Monthly Payment to the Petitioner (HK$)
January 2012	36,000
February 2012	36,000
March 2012	36,000
April 2012	36,000
May 2012	36,000
June 2012	38,000
July 2012	55,000
August 2012	56,000
September 2012	56,500
October 2012	73,000
November 2012	61,000
December 2012	71,500
January 2013	87,500
February 2013	77,500
March 2013	82,000
April 2013	68,000
May 2013	56,000 (plus HK$10,000 from use of credit card)
June 2013	58,000
July 2013	58,500
August 2013	58,500
September 2013	66,500
October 2013	80,000
November 2013	61,000
December 2013	41,000
January 2014	37,000
February 2014	37,000

39. Although the wife has produced copies of some receipts in support of what she says it is hard to determine at this stage what the reality of the situation might be. I will not therefore accede to the wife’s request at this stage. This is however something that may be addressed further at a later stage if no agreement is reached in the meantime.

Conclusion

40. In conclusion then I will make an order that in total the husband pay the wife HK$50,000 per month plus he will undertake to continue to provide for her housing and to pay for the management fees and utility expenses direct, together with the children’s school fees. On a very broad brush basis this also seems to be in keeping with what the husband says was the standard of living enjoyed by the parties prior to the separation. The only difference is that the wife now needs funds to pay for her arthritis injections of HK$12,500 per month. (HK$37,000 + HK$12,500 = HK$49,500 per month).

Costs

41. Although neither party can be said to have entirely won nor entirely lost, given the husband’s general approach to the discovery process and the fact that the wife really had no alternative but to seek the assistance of the court I will make an order nisi to be made absolute in 14 days time that the Respondent do pay the wife’s costs of this application on a party and party basis to be taxed if not agreed, such costs to be paid forthwith.

Order

42. Consequently I shall make an order as follows:

UPON the Respondent husband undertaking to continue to provide for the Petitioner’s housing at the “C Road property” and to undertake to pay for the management fees and utility expenses on the said property by auto pay.

AND UPON the Respondent undertaking to continue to make available to the wife the supplemental credit card up to a limit of at least HK$4,000 per month.

AND UPON the Respondent undertaking to continue to pay for the children’s school fees directly.

IT IS ORDERED THAT: 

1)  The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$20,000 per month and interim maintenance to the Petitioner for the two children of the family in the sum of HK$15,000 per month per child the first payment to be made on the 1 April 2014 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2)  The First Appointment hearing shall be adjourned to the 20 June 2014 at 9:30 am. The Financial Dispute Resolution hearing on the same day shall be vacated.

3)  Both parties do personally attend that hearing.

4)  There shall be an order nisi to be made absolute in 14 days time that the Respondent shall pay the Petitioner’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed, such costs to be paid forthwith.