WZR v. LWC

FCMP 208/2018

[2020] HKFC 9

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 208 OF 2018

-----------------

------------------

----------------------------

Decision
(Leave to Appeal)

----------------------------

1.  This is the Applicant/Wife’s (“A”) application for leave to appeal against the Decision made on 6 November 2019 whereby it is ordered that the ex-parte leave granted on 27 September 2018 for A to apply for financial relief against Respondent/Husband (“R”) under Part IIA of the Matrimonial Proceedings and Property Ordinance Cap 192 be set aside (“the Decision”). R opposed this application.

2.  The said ex-parte leave to seek redress in Hong Kong court was granted on the ground that the PRC courts did not deal with the parties’ properties in Hong Kong for lack of jurisdiction. And it was the same Court that set the ex-parte leave aside.

3.  In setting aside the ex-parte leave, the Court held that in granting leave it was misled by misrepresentations in relation to the jurisdictional point and A’s failure to unearth the whole truth by addressing the Court on material matters. In protecting the court’s process from abuse, the Court exercised its discretion to set aside the ex-parte leave; no re-grant yet leaving open the possibility for A to re-apply.   

4.  Section 63A of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard. 

Grounds of Intended Appeal

5.  According to the draft Grounds of Appeal, the grounds of the intended appeal can be summarized as follows:-

(1)  The Court erred in holding that A had misled the Court through material non-disclosure and/or misrepresentations on the issue of whether the PRC courts had exercised jurisdiction over properties in Hong Kong;

(2)  The Court erred in concluding that the PRC court did not deny jurisdiction and had in fact dealt with A’s case on the sale proceeds of Hong Kong properties;

(3)  The Court erred in concluding that the alleged non-disclosure or misrepresentations amounted to clear and stark circumstances for setting aside leave;

(4)  The Court has applied the wrong test in focusing exclusively or predominantly on whether the Court was misled in granting ex-parte leave, without paying proper regard to the merits of A’s case for financial relief under Part IIA; and

(5)  The Court failed to have any or any sufficient regard to matters which militate against setting aside ex-parte leave and/or refusal to re-grant.

Whether the intended appeal has a reasonable prospect of success

Grounds (1) and (2)

6.  A said there was no non-disclosure or misrepresentation in her ex-parte leave application because she has referred to and quoted relevant statements of the PRC judgments to explain the lack of jurisdiction.  (§(1)(a) – (d) of the draft Grounds of Appeal)

7.  A also said the Court has erred in rejecting her explanation on the jurisdictional point. (§(2)(a) – (k) & (3) of the draft Grounds of Appeal)

8.  As seen in §25 - 35of the Decision, the Court upon analysis and weighing of the evidence has identified A’s misrepresentations one by one. In seeking leave to appeal, A failed to demonstrate how the finding of misrepresentations is wrong and/or outside the ambit within which reasonable disagreement is possible, such that an appellate court would intervene. 

9.  In Henwood v Barlow Clowes International Ltd (in liquidation) & Ors [2008] EWCA Civ 577, the English Court of Appeal held:-

(a)  “If an appellate court considers that the judge has come to a conclusion that is plainly wrong and outside the ambit within which reasonable disagreement is possible, it is bound to intervene even though the question is one of fact” [at §6]

(b)  “Some conclusions of fact are however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called the evaluation of the facts and is often a matter of degree upon which different judges can legitimately differs. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way” [at §4 [16]]

(c)  “...... so far as the appeal raises issues of judgments on unchallenged primary findings and inferences, this court [of appeal] ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible.” [at §4 [17]]

10.  Apart from the finding of misrepresentations, the Court has also disapproved A’s failure to unearth the whole truth by addressing the Court on material matters (§36 of the Decision). As set out in §14 of the Decision, in seeking ex-parte leave there is a high duty to provide full and frank disclosure which includes pointing out to the court all material matters instead of leaving them hidden in the exhibits. In seeking leave to appeal, A failed to address on this important point.

11.  In relation to the jurisdictional point, there is no question that the PRC first instance court not only has affirmed the undisputed 2007 Agreement, it has also heard evidence and adjudicated against A on her alleged 2011 Oral Agreement. Further, on A’s appeal the PRC Intermediate Court has conducted mediation and subsequently affirmed the 2017 Settlement Agreement.     

12.  The salient feature of this case is that parties have reached the 2017 Settlement Agreement to settle the appeal. A’s assertion that the 2017 Settlement Agreement does not cover Hong Kong properties is a bare allegation. It does not assist A at all by simply alleging she was advised by her PRC lawyer that the PRC Intermediate Court would be inclined not to deal with overseas properties so she agreed to mediation (over PRC properties only) and eventually settled the appeal.

13.  It is trite that intention of the parties should be ascertained from the agreement. The 2017 Settlement Agreement does not preserve A’s right that Hong Kong properties are being excluded from the agreement to settle the appeal; and it is noteworthy that both parties are legally represented at the material time.

14.  Further, there is no evidence that while the PRC court has no jurisdiction to adjudicate over overseas properties, it cannot deal with the same for mediation purpose. On the contrary, there is undisputed evidence that the PRC first instance court has affirmed the 2007 Agreement (concerning Hong Kong properties) as requested by A.

15.  Therefore, in the absence of evidence that the 2017 Settlement Agreement does not cover Hong Kong properties, the Court found  that the PRC courts have not denied jurisdiction and have in fact dealt with parties’ disputes over the alleged 2011 Oral Agreement.

Grounds (3) - (5)  

16.  As discussed in §37 - 46 of the Decision, it is the Court’s exercise of discretion that to protect the court’s process from abuse prevails over A’s interest in her intended financial relief claims. The relevant authority of AA v BB [2014] EWHC 4210 (Fam) esp. as quoted in §12 of the Decision is applied. In seeking leave to appeal, A failed to demonstrate in what way such discretion is so wrongly exercised that the appellate court would interfere.

17.  Alternatively, even the Court should have paid regard to the merits of A’s case for financial relief under Part IIA, A still failed to show substantial ground to justify deferring the matter for determination at the trial of the Part IIA proceedings, nor for a re-grant.

18.  It is clear from §48 of the Decision that the Court is not satisfied that substantial ground has been shown. As observed and set out in §12 – 15 above, if A has a genuine case that the 2017 Settlement Agreement is not a concluded binding settlement agreement covering properties in Hong Kong, she can re-apply. 

19.  Notwithstanding that Part IIA may be a relatively new regime in Hong Kong, there are relevant well-established legal principles governing the exercise of judicial discretion which are to be applied on a case to case basis. Hence, it is groundless for A to suggest that this is a factor which militates against setting aside and/or refusal to re-grant.

Whether there are some other reasons in the interests of justice that the appeal should be heard

20.  As said in §19 above, A’s suggestion to seek judicial guidance on circumstances for setting aside is unnecessary and not a reason in the interest of justice that the appeal should be heard. 

Conclusion

21.  By reason of the aforesaid, I am not satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  Leave to appeal is refused.

Order

22.  The Applicant’s Summons dated 20 November 2019 is dismissed.

23.  The Applicant do forthwith pay the Respondent’s costs of this application, summarily assessed at HK$100,000.