TAM MEI KAM v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

HCMP 2981/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2981 OF 2004

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D E C I S I O N

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1.  This is an application by the applicant for payment by the 1st respondent of special maintenance for the Lunar New Year of 2015 and of other sums owed by the applicant to other people for their provisions of “necessities” to the applicant. Only the 1st respondent has appeared to contest the application.

2.  The total sum claimed for special maintenance is HK$113,000.  Mr So for the 1st respondent referred to my order made on 6 January 2014 for special maintenance for the Lunar New Year of 2014 at HK$96,000. 

3.  Mr So suggested that the sum for this year should be revised to HK$100,000 to take into account of inflation.  I think this is a reasonable approach. 

4.  I would however add HK$30,000 to reflect the applicant’s need to take care of her 2nd son who has just been operated for cancer and is currently under her care.  I stress that this is a special and not recurrent item.  The total sum to be paid by the 1st respondent to the applicant under this claim is at HK$130,000.

5.  Regarding the sums claimed by the applicant for provisions of “necessities” by other people, the items are:

(i)  HK$215,000 being outstanding rental payable by the applicant for the period from September 2014 to January 2015 to the landlord, M/S Greenhill Enterprises Limited;

(ii)  HK$71,643 for herbs and medicine payable to M/S 香港華豐行;

(iii)  HK$40,800 for unpaid Chinese Therapy payable to 湯嘉耀; and

(iv)  HK$42,340 for tonic food and herbs payable to M/S Hung Shing Bird’s Nest Medicine Company.

6.  Regarding arrears of rent, I allowed the applicant a monthly rental of HK$20,000 in my decision of 21 February 2014.  However, the applicant ignored my order and entered into a tenancy for HK$43,000 per month.

7.  The applicant also did not apply the monthly sum of HK$20,000 as allowed in my order to pay rent.  The HK$43,000 per month rental up to August 2014 was paid by one Mrs Li, a friend of hers to her landlord for her benefit.  Mrs Li could not afford this sum from September 2014 onwards and the applicant simply let the payment outstanding.  She has been sued by the landlord for arrears of rent from September 2014 to January 2015 totalling HK$215,000.

8.  The applicant said in her 2nd affirmation in support of the application that my order allowing her HK$20,000 rental per month was unrealistic. She said she had the needs to cater for pets, to continue her lifelong lifestyle and to live near St Paul’s Hospital, the food market and her familiar restaurants. For these reasons, she needed a bigger flat in Happy Valley.  Hence, she entered into the tenancy for her present accommodation.

9.  The applicant has ignored what I said in paragraphs 32 and 34 of my decision dated 21 February 2014 where I said:

“32. … I agree with Barma J (as he then was) that it is reasonable to expect Madam Tam as a bankrupt to make some adjustments to her lifestyle after her bankruptcy by economising on her expenditure whenever possible (Re Tam Mei Kam (a bankrupt) [2012] 4 HKLRD 345 at para 24).

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34.  Regarding rental, Madam Tam said at the hearing that she was negotiating for a new tenancy for premises with a usable floor area of about 1,000 to 1,100 sq ft.  However, I have on 6 January 2014 already directed that she should look for new premises with about 500 sq ft usable floor area only.”

10.  The applicant is a bankrupt.  She should economise on her expenditure.  I see no reason why she has to live near the food market and her familiar restaurants.  There are also smaller and cheaper residential premises in Happy Valley which are just as close to St Paul’s Hospital as her present accommodation is.  She should also modify her life style and her mode of keeping pets to fit into smaller premises.

11.  On the whole, I see no justification for this claim for HK$215,000 and I dismiss it.  The applicant will have to face the adverse consequence of not paying rent which is of her own making.

12.  Items (ii) and (iv) are similar.  They are for herbs and medicine from Hong Kong Wah Fung Hong (香港華豐行) and tonic food and herbs from Hung Shing Bird’s Nest Medicine Co at HK$71,643 and HK$42,340 respectively.  Item no. (iii) is for Chinese therapy.  The applicant explained in her 2nd affirmation that it is acupuncture.

13.  She said because of her old age and health condition, she is used to acupuncture rendered by her therapist and to the herbs, medicine and tonic food supplied by her suppliers.  She further said that the lack of these would cause her many health problems.  She would feel uncomfortable and get sick easily.  Since the HK$48,000 per month I allowed in my order of 21 February 2014 was not enough for these services and supplies, she obtained them on credit.  She now seeks these sums to pay for them in arrears.  However, she has provided no expert medical evidence to prove her needs for these services and goods.

14.  In paragraph 41 of my decision of 21 February 2014, I have allowed HK$3,000 per month for tonic food for the applicant in view of her seniority.  I cannot accept her bare assertion of needs as the basis for ordering the additional sums.  I dismiss these three items of claims.

15.  The 1st respondent has, on my request, advised me that the year-on-year rate of change of Consumer Price Index C as at November 2014 is +3.4%.  I have ordered in my decision of 21 February 2014 monthly maintenance for the applicant at HK$152,000 with HK$48,000 payable to the applicant and the balance to the 5th respondent, her trustees of bankruptcy.  I now revise these two sums as suggested by the 1st respondent to HK$158,000 and HK$50,000 respectively to take effect from January 2015.

16.  I also make a costs order nisi that the costs of the applicant, the 1st, 3rd and 4th respondents in this application be paid from the estate of Madam Mui Yim Fong.  I also assess summarily the costs of the 3rd and 4th respondents at HK$2,000 and HK$4,800 respectively.

17.  Finally, there is an application by the 1st respondent that the 2nd respondent shall cease to be a party to these proceedings.  The reason being that the 2nd respondent, the joint and several administrators pending suit of the estate of Madam Mui has been discharged from office by the order of Poon J dated 8 February 2012.  I allow the application.  I also make a costs order nisi that the applicant and the 1st and 2nd respondents be paid costs of this application out of the estate of Madam Mui.  I also assess summarily such costs at HK$200 for the applicant and HK$800 for each of the 1st and 2nd respondents.