TCWF v. LKKS

HCMC 5/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 5 OF 2008

(transferred from FCMC No 6061 of 2008)

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J U D G M E N T

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The breakdown of the marriage:

1.  These are ancillary relief proceedings.

2.  The Respondent husband and Petitioner wife met in London in late 1995.  They quickly formed a relationship and on 7 April 1999, became engaged.  They were married in Hong Kong on 8 January 2000. 

3.  The 2^nd Intervening Party is the husband’s father, (the father).

4.  The father and the husband’s mother were not married, the father being married to another woman, albeit he had been separated from her since the late 1960s.  The husband saw little of his father in the early part of his life, and was excluded from the life of his paternal grandparents.  When he was six years old his mother left, and he has not seen her since.  As a result of litigation between his father and his mother, as a child, the husband was made a ward of court.  Although it appears that the father provided financially for the husband, as a child he was deprived of the emotional comfort of a traditional nuclear family.  This background instilled in him what I accept was a genuine reluctance to have children for fear that his own children might suffer an equally unhappy childhood.

5.  In July 2007, the wife became pregnant.  There is a dispute between the parties as to the circumstances in which conception occurred, and whether or not the husband acted willingly in conceiving a child.  The conception proved to be the fundamental reason for the breakdown in the marriage.  The husband gave the wife an ultimatum.  He said that she must have an abortion or the marriage would end.  The wife was not willing to abort the child and refused the ultimatum. There is a dispute as to the precise date at which the marriage ended. 

6.  On 20 February 2008, a daughter was born.  The husband has seen his daughter on only a few occasions and has made it plain that he does not wish to participate in her life.  The father, her grandfather, on the other hand, is not only willing to assist in the financial support of the child, but wishes to have contact with her.

7.  On 27 May 2008, the wife issued a petition based upon unreasonable behaviour.  After initially attempting to have the petition stayed on the ground forum non-conveniens, arguing that Japan was a more appropriate forum, the husband abandoned that stance, and agreed to the petition proceeding in Hong Kong.  In 25 August 2008, without opposition, a decree nisi was made, and the proceedings transferred to this Court for the conduct of ancillary relief matters.  Other than the making of financial provision of the daughter in these proceedings, no issue arises in respect of the daughter.

Background:

8.  The husband’s father is an extremely wealthy man.  During 1996, the husband had travelled to Japan to investigate opportunities for real estate investment in that country. There were a number of occasions from August 1996, when the wife, then his girlfriend, accompanied him to Japan.  These investigations continued during 1997 and 1998.  On 27 February 1998, a company, Veloqx City Investment Ltd, (VCIL), was incorporated in the British Virgin Islands.  This company was intended to be a vehicle by which real estate investment would be made in Japan by the husband.  The husband recruited a Mr Kawamoto, an ex-Paribas banker, to be his chief executive, and a Mr Ian Robinson from the international engineering and consultancy firm of Ove Arup to oversee project development.

9.  With the undisputed assistance of the father, both financially and through his business expertise, the husband has accumulated a remarkable portfolio of high-quality real estate in Tokyo.  The purchase of the first building, subsequently known as the V28 building, was completed on 19 March 1999.  It is not in dispute that the funds to make that purchase came from a gift made to the husband by the father in the sum of J¥3,643,245,195, (on present exchange rates some US$47.3 million).  A document, called in the proceedings the Framework Agreement, was subsequently entered into by the husband and the father from which it is clear that the sum was a gift.  The Framework Agreement, made on 29 June 1999, specifically said that the sum was a gift. 

10.  The case for the husband and the father is that the terms of the Framework Agreement meant that the gift was a “retrievable gift”, and that the sum given by the father to the husband could be subsequently recovered by the father.  The precise effect of the Framework Agreement is an issue between the parties.

11.  Following their marriage, the husband and wife initially rented a luxury property on the Southside in Hong Kong.  They then moved to London where they were based.  The case for the wife is that they subsequently maintained two principal residences, in London and Tokyo, and were establishing a third principal residence in San Francisco.

12.  The father, as part of his estate planning methods, and to protect what he saw as dynastic property in the possession of the husband, requested the husband to persuade the wife to enter into a pre-nuptial agreement.  There were discussions prior to the marriage in this regard, but it was not until after the marriage that a post-nuptial agreement (the PNA) was entered into by the husband and wife, on 5 June 2000.  A copy of this document, with certain passages redacted to preserve confidential matters between husband and wife, was subsequently made available to the father through solicitors.

13.  On the same day as the husband and the wife entered into the PNA they executed a second deed cancelling the PNA.  The father was not told of the cancellation of the PNA at that time.

14.  Between the acquisition of the V28 building and 2008, (partly with the assistance of loans from the father’s business enterprises, and utilising funds released by way of refinancing from buildings that had been acquired and redeveloped), 13 buildings have been acquired, principally in the Omotesando district of Tokyo, a high-end retail area.  There is a substantial dispute between the parties as to the value of these buildings.  The case for the wife is that the net worth of the 13 buildings, on current exchange rates, is HK$7,327 million, (US$940,573 million or J¥73,385 billion).  In these proceedings this portfolio of properties has been collectively referred to as the Japanese business.

15.  The husband has, through company structures, acquired other significant assets.  There is no dispute that these assets have been acquired utilising funds that have come from the Japanese business.  These assets include a Boeing business jet, (the BBJ), two Pershing motor yachts, one 115 ft, the other 88 ft, a fleet of luxury cars in London, Tokyo and San Francisco and a luxurious house in the Belvedere district of San Francisco.  He has made investments in wine at a cost of some US$26 million and is renovating the San Francisco house at a cost of some US$6 million. 

16.  The case for the wife is that the husband’s net worth is in excess of HK$5.500 billion or US$705.8 million.  The husband disputes this and argues that his net worth is significantly less than those sums.  His financial position is, he says, such that he is unable to make provision himself for his wife and daughter.  Instead, he suggests that a Thomas order should be made in favour of the wife and daughter because the father has offered an appropriate sum.  In the course of his evidence the father said he was willing to pay US$26 million pursuant to a Thomas order, and make a separate provision for the daughter.

The relevant legal principles:

17.  There was no dispute about the relevant law.  In ancillary relief proceedings the court is required to undertake an inquiry into all of the circumstances of the case, having regard to the factors set out in s 7 Matrimonial Proceedings and Property Ordinance, Cap 192, (MPPO).  The Court of Final Appeal in LKW v DD (2010) HKCFAR 537, [2010] 6 HKC 528 established that the inquiry is undertaken having regard to the “underpinning White[1] principles” namely the object of fairness; the rejection of discrimination; the yardstick of equal division; and the rejection of minute retrospective investigation.

18.  Applying those principles as the foundation for the inquiry, the inquiry is a five stage process.  First, the court must ascertain the financial resources of each of the parties.  Second, the court will assess the parties’ financial needs, generously interpreted.  Third, if surplus assets remain after the parties needs have been catered for, the court will apply the sharing principle.  Unless there is good reason, capable of enunciation, for departing from equal sharing, the total assets should be divided equally between the parties.  Fourth is the consideration of whether there are good reasons for departing from equal sharing.  The fifth and final stage is the application of the various conclusions reached through the process, and the decision as to the division of property between the husband and wife.

19.  In carrying out the fourth stage of the inquiry, the CFA has identified six particular factors that might be relevant to the issue of departing from equal sharing.  They are: the source of assets; conduct; the financial needs of the party seeking relief; the duration of the marriage; the contributions made by each of the parties to the welfare of the family; and the matter of compensation.

Intervening events:

20.  A number of events occurred between the transfer of the proceedings to this Court and the ultimate hearing of ancillary relief matters in October/November 2011.  It will be necessary to consider these intervening events in due course, because the parties rely upon these events as being relevant to the credibility of witnesses.  The following is an overview of the significant events.

The Citic funds:

21.  During the course of the marriage the husband had established  a Liberian company called Citic Pacific Ltd, (“Citic”) under which there were a number of subsidiary BVI and Guernsey companies.  At the request of the husband, the wife’s mother agreed to act as the sole nominee director of Citic.  These companies maintained bank accounts in Jersey.  The wife’s mother was the sole signatory to the bank accounts.  In June 2008, Citic and its subsidiaries had sums comprising J¥17 billion, US$113 million and €2.8 million, in aggregate some US$337 million, with Citigroup Private Bank in Jersey. 

22.  There is no dispute that the source of these funds was the Japanese business.  Prior to June 2008, the wife’s mother had, without question, complied with every request by the husband in respect of the bank accounts.  On 25 June 2008, at the request of the wife, her mother wrote to the bank, effectively freezing the funds in the accounts, and thereafter refused to comply with requests by the husband in respect of the account.

23.  It was ultimately necessary for the husband to come to the Court to obtain orders releasing the funds.  Those orders, in the husband’s favour, were made on 3 June 2009, following a three-day defended hearing. 

24.  The husband and father have greatly resented this act on the part of the wife and her mother, asserting that it was a “theft” of the funds in the bank account.  It will be necessary to consider the circumstances further in due course.

The 2006 CLA:

25.  The Framework Agreement gave certain rights to the father to recover from the husband property in Japan that had been acquired as a result of the gift of cash made by the father to the husband in March 1999.  Subsequently, prior to the separation, on numerous occasions, the husband and wife gave consideration to raising with the father the need to enter into a new Framework Agreement.  The reasons for this will be discussed later. 

26.  On 21 August 2008, the husband demanded from the wife a document he called the 2006 CLA[2], which he asserted was held with documents she had retained from documents she had taken from the parties’ residence in Tokyo.  The wife immediately asserted through her solicitors that she did not believe that such a document ever existed.

27.  On 4 November 2009, a date that was called by the husband and the father, “D-Day”, the husband and the father, purportedly acting pursuant to the Framework Agreement and the 2006 CLA, executed a number of documents prepared by the solicitors for the father. 

28.  The effect of the documents they signed was to substantially deplete the capital of the husband by shifting the legal and beneficial ownership of the Japanese business from the husband into the hands of the father.  Title was actually taken by the 3^rd Intervening Party, OIL, but that is essentially irrelevant for reasons that will appear. The husband was left owning the BBJ, the two Pershing yachts, the San Francisco house, the assets of Citic, a collection of cars, watches and wine, and shares in two companies.  On the wife’s assessment of the value of the Japanese business, the husband’s assets had been very seriously depleted.

29.  At the same time as those steps were taken, the father commenced proceedings in the Chancery Division of the High Court in England against the wife alleging a conspiracy between the husband and wife of fraudulent misrepresentation in relation to the cancellation of the PNA.  The basis of this claim was the concealment from the father, by the husband and wife, of the fact of cancellation.  Although he did not say so in his statement of claim, the father brought the claim against the wife alone, he having forgiven his son (the husband) in respect of the events surrounding the cancellation of the PNA. 

30.  The wife immediately made an application in Hong Kong under the provisions of s 17 MPPO to set aside the dispositions that had taken place on 4 November 2009, (the s 17 proceedings).  She also sought the dismissal of the English fraud proceedings on the ground of forum non-conveniens.

31.  In the course of his judgment on that application, Briggs J said this:

“(The father) has made no secret of the fact that he hopes and expects that the damages he seeks to recover for the alleged fraud from (the wife) will be more than sufficient to soak up any financial provision which she might recover in the Hong Kong divorce proceedings from his son whether or not the property transfers are ordered to be set aside under section 17.”

32.  On 30 March 2010 the English fraud proceedings were dismissed, with indemnity costs to the wife, on the grounds of forum non-conveniens.

33.  With the dismissal of those proceedings in England, the father brought an identical fraud claim against the wife in Hong Kong. 

34.  The wife defended, and counterclaimed in those proceedings, joining in the husband and alleging that the father and the husband had conspired together by unlawful means to remove all or almost all of the assets available to meet her claims for financial provision on behalf of herself and her daughter, or alternatively they had conspired together with the predominant intention of injuring the wife and her daughter.  The action by the father, has been called the fraud action.  The counterclaim brought by the wife may be called the conspiracy counterclaim.

35.  Mr Howard QC, for the wife, called the circumstances surrounding D-Day, and the subject of the wife’s counterclaim “the conspiracy”.  For the reasons set out in §§65-73 below, I am satisfied that that was an appropriate expression in the circumstances.

36.  I directed that the wife’s s 17 proceedings, the fraud action and the conspiracy counterclaim, should be tried together, prior to the substantive ancillary relief proceedings, in order that the extent of the property owned by the husband, and available for distribution in ancillary relief proceedings should be ascertained.  On 23 February 2011, all those proceedings came on for trial before me.  Both sets of proceedings were compromised entirely in the wife’s favour. 

37.  In order to identify the specific allegations made by the wife in her s 17 claim, the wife had been required to file formal points of claim.  The husband and father had responded to those points of claim by filing points of defence.  The compromise involved the withdrawal of the defence that had been filed by the husband and the father to the wife’s amended points of claim, save that in respect of certain specific allegations of forgery, or breach of undertakings to the court, non-admissions remained in place.

38.  At the same time, and on the same basis, the defences filed by the husband and the father to the wife’s conspiracy counterclaim were withdrawn. 

39.  The withdrawal of the defences, except as to the specific allegations of forgery, left the great majority of the points of claim in the s 17 proceedings and the counterclaim in the fraud action unanswered and, by virtue of RHC O 18, r 13(1), the allegations by the wife are accordingly deemed to be admitted.  The precise effect of this rule will require consideration later in this judgment

40.  The husband and father abandoned their positions in respect of the s 17 proceedings, and did not oppose an order setting aside the various documents that had been executed on D-Day, and which had had the effect of shifting property from the husband to the father.  That order was duly made on 23 February 2011.  An order was also made setting aside the 2006 CLA.  It is because the D-Day orders were set aside that the involvement of OIL becomes irrelevant.  The husband and the father agreed to pay the costs of the wife’s s 17 application on an indemnity basis. 

41.  The order[3] contained the following provision:

“Until the final determination of (the wife’s) ancillary relief application and satisfaction in full of her claim for ancillary relief, (the husband) and (father) shall not in any way dispose of or deal in or with or diminish the value of or in the shares of Octaland, Daiwa, Veloqx Pte, Mizuho, (VCIL), Citic Pacific Ltd or any of their subsidiary or associated companies (including for the avoidance of doubt those companies listed in the undertaking given by (the husband) to the court on 16^th December 2009), save in the ordinary course of business and save as may be necessary to put into effect or comply with this Order;”

The wife was accordingly entirely successful in the s 17 proceedings.

42.  In the fraud action the claim made by the father against the wife was discontinued by him, with the leave of the court, with the father to pay indemnity costs to the wife.  The wife was accordingly entirely successful in that action.  Upon the withdrawal of the defences by the husband and father in the wife’s conspiracy counterclaim, judgment on liability was entered against the husband and the father, with damages to be assessed.  The husband and father agreed to pay indemnity costs to the wife.

43.  The order entering judgment contained an undertaking by the husband and the father, by their respective Leading Counsel in the same terms as that set out in §41 above.  The order[4] also contained the following provision:

“AND UPON (the father) by his Leading Counsel undertaking to (the wife) and the Court that until the final determination of (the wife’s) ancillary relief application and satisfaction in full of her claim to ancillary relief, he will not take any steps to exercise any right or rights he has or may have pursuant to the Framework Agreement entered between him and (the husband) on 29 June 1999 including for the avoidance of doubt any right or rights under the options granted or to be granted pursuant to the notice served by (the father) upon (the husband) on 21 February 2011;

44.  The wife was accordingly entirely successful in the s 17 proceedings and the conspiracy counterclaim, subject only to the quantification of damages.

The effect of the orders:

45.  Mr Pointer QC, for the husband and Mr Todd QC, for the father both sought to characterise the order set out in §41, and the undertaking set out in §43, as being equivalent to nothing more than a temporary holding injunction preserving property until the trial of the proceedings. 

46.  I accept Mr Howard’s submission that the effect of the order, and the undertaking goes well beyond such an injunction. They are an order and an undertaking which prevents both the husband and the father from dealing with the property, not merely until judgment in the ancillary relief proceedings is given, but until the wife’s claim for ancillary relief is actually satisfied in full. 

47.  In simple terms, neither the husband nor the father may deal in the property, except as permitted by the terms of the order, until all rights of appeal have been exhausted, the ancillary relief claim finally determined, and any sums ordered to be paid to the wife in satisfaction of her claim for ancillary relief have actually been paid.  Only then will the father be free to exercise any rights he may have under the Framework Agreement.

48.  It does not matter that the undertaking was given in proceedings separate and distinct to, (although heard at the same time as), the interlocutory steps in the ancillary relief proceedings.  The order amounts to a compromise which is enforceable as a contract.  That is precisely the ground relied upon by Mr Pointer and Mr Todd to prevent the wife relying upon an argument that the 2006 CLA is forged, as a form of conduct relevant in the consideration of the s 7 MPPO factors in ancillary relief proceedings.

49.  Both the husband and the father acknowledged that the effect of the orders made in the s 17 proceedings was that at the present time the husband is the legal and beneficial owner of the Japanese business.  I accept that his ownership is subject to the rights of the father under the Framework Agreement, an issue to be later considered.

The PNA:

50.  The husband and wife agreed to cancel the PNA, and did so, on the same day that it was signed.  Other than it may have been seen as part of the father’s desire to establish dynastic continuity in respect of property he had given to the husband, the fact that the PNA was cancelled means that it ceases to have any real relevance in these proceedings.  Mr Pointer relied upon the cancellation of the PNA in an attack on the credibility of the wife.  It is relevant to that extent.

51.  I accept that the PNA is also relevant in that it records the husband brought US$50 million to the marriage.  There is no doubt that that sum came from gifts from his father.

The credibility of the wife:

52.  Mr Pointer relied upon the action of the wife in inducing her mother to freeze the Citic funds to demonstrate, in his terms, that the wife was not the “innocent oppressed ingénue” that he said she has attempted to portray herself in this trial.  He said also that the freezing of the Citic funds by the wife was the first “belligerent extra-curial step” taken in the proceedings, and was likely to have been the stimulus to the conspiracy by the husband and father.

53.  It is right that the action taken by the wife was inappropriate self-help.  If she wished to protect the Citic funds with a view to ensuring that her claim would be met, the proper course would have been to have sought, on notice, an appropriate injunction.  I accept Mr Pointer’s submission that it is no answer for the wife to say that she has been vindicated by the D-Day events, which might be argued to prove the need for her to protect herself in some way.

54.  But the action of the wife needs to be seen in its full context.  The essential part of the complaint made by the husband is that the letter, drafted by the wife and signed by the wife’s mother, to the bank, wrongly asserted that the wife’s mother was the sole beneficial owner of Citic, when both knew that she was merely a nominee for the husband.  But the husband himself had asserted to at least one bank, HSBC Republic, that the wife’s mother was the beneficial owner of the assets deposited with the bank. To an extent therefore, if there was a misrepresentation to the bank, it was one that had been initiated by the husband himself.  He can hardly complain if his own assertion is repeated.

55.  The wife was wrong to induce her mother to sign that letter, and was wrong to hold onto the corporate seals and company chops, thereby effectively preventing, for a period of time, the husband from regaining control of what was plainly his company and his money.  But when set alongside the conspiracy by the husband and the father, the wife’s actions pale into insignificance.  They are the sort of steps that are from time to time ill-advisedly taken by parties in matrimonial litigation.  They are steps which do not usually lead to any submission at all, least of all creditworthiness, other than perhaps having a relevance in costs.

56.  The wife’s actions in respect of the Citic funds do not impact adversely on her credibility.

57.  Mr Pointer also relied upon the action of the wife in cancelling the PNA, and failing to tell either the father or his wife, about the fact of the cancellation, as a matter impacting adversely upon her credit.  The failure to tell the father’s wife about the cancellation was relevant because the case for the husband and the father was that one of the reasons for the PNA was that it could be shown to the father’s wife who could then be persuaded to enter into a similar agreement herself with the father.

58.  Again, the action of the wife in cancelling the PNA must be seen in its proper context.  It was at the suggestion of the husband that the PNA should be cancelled.  It is right that the wife agreed to enter into the PNA, having also agreed with the husband that it should be immediately cancelled, but both agreed to the cancellation.  The agreement to cancel the PNA and the failure to tell the father’s wife about the cancellation were acts, not only of the wife, but also of the husband. 

59.  If it was for anyone to inform the father’s wife of the existence of the PNA, it was a responsibility for the father.  He, after all, had a copy of the PNA, albeit redacted.  He did not suggest that there was any reason why he could not have shown that to his wife in an effort to persuade her to enter into a similar document.

60.  A far greater responsibility plainly lay upon the husband to inform both his father and his stepmother of the cancellation of the PNA, than lay on the wife, a “stranger” to the family of the husband. Despite the husband’s failure to tell his step-mother or his father of the cancellation, I placed no weight on his failure to do so when assessing his evidence.

61.  But most importantly, they were events which had occurred over 11 years ago, and consequently any real impact of those events on the evidence of the husband or the wife, given in 2011, was minimal in the extreme.

62.  In assessing the evidence of the wife I placed no weight at all on the fact that she had, by inaction in failing to inform the father of the cancellation of the PNA, misled him.  No weight can be placed upon her failure to inform the father’s wife of the PNA. 

The credibility of the husband and the father:

63.  Sensibly, neither Mr Pointer nor Mr Todd sought condonation of the husband or the father in respect of the acts involved in the conspiracy.  However, Mr Pointer sought to put their actions in that respect into context.  I accept that they are entitled to have their actions viewed in the context that it was the wife who took the first belligerent action.  But the actions of the wife fell a very long way short of the “theft” as her actions were characterised by both the husband and the father in their evidence.

64.  The action of the wife merely froze the funds in the bank account, and for a little over six months prevented the husband from having access to those funds.  Not a single penny of the funds was removed by the wife.  While a wrongful “self-help” action, the action of the wife simply cannot be characterised as “theft”.  The actions of the husband and father in conspiring together in the D-Day events were, in any terms, extreme and very serious.

65.  Mr Howard characterised the description of the D-Day actions as being a conspiracy to defeat the wife’s claim by ensuring that she received no money, or nothing at all, on her claim.  Mr Pointer took considerable exception to that description, contending that it was factually false and wrong in law.

66.  In my view Mr Howard was entitled to say that the conspiracy was intended to defeat any claim for financial relief that the wife may make.  He was so entitled because, in these proceedings, the husband and the father have admitted pleadings to that effect.  The following pleadings were contained in the wife’s amended points of claim in the s 17 proceedings[5]:

“2. Each of the above agreements and transfers was made with the intention of defeating (the wife’s) claim for financial provision and, if they are set aside, financial provision or different financial provision will be granted to (the wife) within the meaning of section 17(1)(b) of the MPPO.

38.8. (The father’s) exercise of his rights under the revised Daiwa COA and/or Framework Agreement was not in good faith but was done with the agreement of (the husband) for the sole or principal purpose of defeating (the wife’s) claim for financial relief.

41. In addition to the facts and matters relied on in support of the inference that the 2006 CLA was produced after the filing of the petition, (the wife) will rely, in support of her case under section 17 of the MPPO, on the fact that the sole alternatively principal purpose of the 2006 CLA (if contrary to her primary case it is not a forgery or a sham and was in fact executed in February 2006) was to enable (the husband) with the help of (the father) to defeat any claim for financial relief that she might subsequently make or such purpose played a substantial part in his intentions as a whole.

42. As for the transfer of shares in Mizuho, this did not fall within the scope of the Framework Agreement, the revised Daiwa COA or the 2006 CLA. The transfer of shares in Mizuho was not made for valuable consideration and (to the knowledge of both (the husband) and (father)) was effected for the sole alternatively principal purpose of defeating (the wife’s) claim for financial relief.  Consequently, (the wife) contends that the transfer should be set aside.”

67.  As part of the compromise in which the s 17 proceedings were resolved, the pleas by way of defence filed by both the husband and the father to those pleadings were withdrawn.  RHC O 18, r 13(1) provides:

“Subject to paragraph (6), an allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 14 operates as a non-admission of it.”

There is nothing in paragraph (6) which impacts upon the matters in this case.  The effect of the withdrawal of the defence by the husband and the father meant that the allegations set out in §66 were neither traversed nor joined in issue under rule 14, and consequently are deemed to be admitted.

68.  Mr Pointer argued that the “pleadings” in the s 17 proceedings were not pleadings to which the rules in RHC O 18 apply.  I reject the submission.  First, because the issues under those proceedings involve the rights of a third party, the father, for the reasons set out in §142-143 below, the parties involved in such a dispute are required to identify the issues between them by way of proper pleadings.  Where those issues involve the rights of a third party, those rights are to be determined on a strictly legal basis.

69.  By R 3 Matrimonial Causes Rules, (MCR) the Rules of the High Court apply to matrimonial proceedings:

“Subject to the provisions of these rules and of any enactment, the Rules of the High Court (Cap. 4 sub. leg.) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.”

Although called “Points of Claim” and “Points of Defence” the pleadings filed in the s 17 proceedings by the parties must constitute a “Statement of Claim” and a “Statement of Defence”, and, by virtue of R 3 MCR be subject to all of the rules in the RHC relating to pleadings, including O 18.  It would be quite wrong to hold otherwise, because that would in effect entitle the father to say that his rights must be judged according to strict law, but he should not be bound by strict law in the procedure to be adopted to determine those rights.

70.  Whilst there may be scope for argument as to the effect of O 18 where an admission is made in one set of proceedings, and the same facts or issues arise in other proceedings between the same parties, there can be no argument where the admission of a pleading is made within the context of the very proceedings in which the admission is made.  It is right that the admissions were made in the context of an interlocutory step, but that does not detract from the effect of the admission in the ancillary relief proceedings. 

71.  It is clear from the correspondence that those advising the wife specifically required the withdrawal of the pleas in the points of defence by the husband and the father as part of the compromise of the s 17 proceedings, the fraud action and conspiracy proceedings.  They plainly did so for the very reason that the withdrawal of those pleas would have the effect of making the admissions argued for by Mr Howard.  It is not open now for the husband or the father to resile from the full effect of those admissions, nor was any application made that they should be permitted to withdraw the admissions made.

72.  In terms therefore, the husband and father have admitted in these proceedings that they intended to defeat the wife’s claims for financial provision.  It has not been necessary for me, in reaching this conclusion, to have regard to the pleadings in the fraud action or the conspiracy counterclaim.  It is also for that reason that I do not need to consider the interesting arguments advanced on the effect of pleadings as an estoppel.

73.  The only argument that can be made by the husband and father is that the expression “defeat”, in the context of s 17 has a broad meaning, and that it may encompass actions which are designed “to partially reduce the claim of the petitioner”.  I accept that that is so, but in its context “defeat” may also mean, as Mr Howard used it, and as it was pleaded, “to ensure that the petitioner gets nothing at all”.

74.  At the end of the day it matters little whether the intention of the husband and the father was to defeat the wife’s claim wholly or partially.  What is important when having regard to the creditworthiness of the husband and father is that the D-Day acts were acts which were undertaken by them, at the very least, in bad faith.

(Paragraphs 75 to 137 are redacted.)

138.   There were a number of other matters relied upon by Mr Howard which he said impacted adversely on the father particularly.  These included other occasions upon which his credibility has been successfully attacked in litigation in England.  They were matters which would normally be available to found a submission as to credit, and indeed sufficient, probably on their own, for a court to say that the evidence of the father is not worthy of belief.  

139.   Because of the findings I have made against the husband and father, within the context of these proceedings, and the seriousness of those findings it was simply not necessary for me, in order to find that the father was not capable of belief, in the absence of corroboration by contemporary documentation, to place any weight on those other matters.

Ascertaining the extent of the property:

140.   The first step in the s 7 exercise is to ascertain the financial resources of each of the parties.  Usually this is a relatively straightforward exercise involving the identification of the relevant property and assessing its value.  The exercise becomes complex where structures are used which enable a party to say that property is not owned by that party and should accordingly not be taken into account.  It also becomes complex where third-party rights are asserted over property, and those rights are argued by one or other of the parties to mean that the property ought not to be taken into account.

141.   The latter is the case here. The father, a third party to the ancillary relief dispute between the husband and wife, seeks to assert rights over the property. 

142.   The law is quite clear that where a third party seeks to assert rights over the property, or where a spouse seeks to extend a claim for ancillary relief to assets which appear to be in the hands of someone other than the other spouse, the issues must be determined by usual Chancery, or civil law principles and not matrimonial principles; see TL v ML [2006] 1 FLR 1263 at §§33-37.  The determination of third party rights over property, whether at the request of a spouse or the third party, is not a matter over which there is any discretion.

143.   The procedure to be followed when a third party intervenes, as here, requires the issues to be fully pleaded by points of claim and points of defence.  Not only does that enable the issues to be properly identified but it demonstrates, by way of proper pleadings, that the issues are to be determined on a strictly legal basis. 

144.   In the present case the first step to be taken is the construction of the Framework Agreement and the determination of the consequences of any rights available to the father or any steps that he might have taken under that agreement.  The second step will be to consider the submission made on behalf of both the husband and the father that the property was dynastic property, and the husband was merely a custodian of that property.  It will be convenient to consider that second step when considering the application of the sharing principle.

(Paragraphs 145 to 161 are redacted.)

162.   Mr Howard did not dispute that a cause of action lay with the father against the husband for these breaches.  His argument was that no steps had been taken in respect of that cause of action, and that consequently the property still lay with the husband, albeit subject to rights in the father.

(Paragraphs 163 to 235 are redacted.)

The valuation of the assets:

236.   An essential part of the ancillary relief exercise is the valuation of the assets.  In this case, that exercise involves a consideration of the valuation evidence in respect of the Japanese property, the valuation evidence in respect of the BBJ and the two Pershing yachts, the valuation of the Belvedere house and the husband’s wine collection and the husband’s cars.  The wife’s own assets must also be determined and valued.

237.   In most ancillary relief proceedings the valuation of any sort of property, particularly real estate, is a straightforward matter.  Precise values are not necessary.  The court will take a broad view of valuation, unlike the sort of valuation that might be required in a strict commercial case or in proceedings in the Lands Tribunal. In many cases sensible parties accept the advice of experienced matrimonial solicitors and agree that real estate should be valued by a single real estate agent familiar with the type of property and area, rather than going to the expense of instructing registered valuers.  Even with items like cars and boats, a great deal of money can be saved if the parties agree on a single joint valuer such as an experienced car dealer, or an experienced yacht broker.

238.   In the present case the loan documents in respect of bank loans over the real estate in Japan contain loan-to-value ratios, and it has been necessary for the husband, on an at least annual basis, to obtain what are known as “desktop” valuations of the various properties, and to submit those valuations to the lenders.  This enables the lender, at the expense of the borrower, to keep a check on the loan-to-value ratios and ensure that those ratios have not been breached.  There was no dispute that a “desktop” valuation is a valuation that is undertaken without a formal inspection of the building, and using the actual rent where there are signed leases, and the estimated rental value in respect of any vacant space. 

239.   At an early stage of the proceedings the wife requested those valuations from the husband.  It would have been perfectly acceptable in these proceedings, and a very sensible course, for the parties to have agreed that the most up-to-date desktop valuations should comprise the valuation of the property to be adopted to these proceedings.  Such a course would have saved time and money.  But the husband did not agree to supply those valuations.  He even went so far as to say that he did not have copies of the valuations. 

240.   Both of the Japanese registered valuers subsequently instructed agreed that if a valuation of a property was prepared at the request of a lender, a copy of that valuation would be supplied to the owner of the property.  That evidence did not surprise me at all.  It would have been a remarkable circumstance if the lender had concealed the valuation from the borrower.  It is equally remarkable that the husband should assert that he did not have copies of the loan-to-ratio valuations that had been obtained over the years. 

241.   He said in an affidavit that when the valuations were received they were simply passed on to the relevant bank and that copies were not retained.  I simply do not believe that a significant commercial real estate operation such as that being carried out by the husband in a major international city like Tokyo would not have in place a system whereby any such documents received were duly copied and retained.  The position adopted by the husband was quite untenable.  It was, as I indicated in the interlocutory proceedings, unbelievable beyond belief.  

242.   The assertion was yet another example of the extent to which the husband was prepared to go in order to minimise the fund available to meet the wife’s claim.

243.   In the light of the husband’s refusal to supply those valuations the wife, sensibly, and with a view to saving cost, sought a single joint valuer to be appointed to value the Japanese property.  The husband opposed such an order.  Ultimately it was necessary for me, on 4 April 2011, to order that each party should be at liberty to file expert reports, including one expert each on the question of real estate values.  I directed that the valuation dates of the properties should be as at 31 March 2011.

244.   Mr Pointer argued that the valuation of real estate by me should be undertaken strictly in accordance with the rules of the Japanese Real Estate Valuers Association.  There is no requirement in matrimonial law that valuation of real estate should be undertaken on a strict basis although I accept that from time to time it will be appropriate for parties to value property on that basis.  It is well established that expert evidence must not be slavishly followed by the court, but is evidence which assists the court in reaching its conclusion.  That is the basis upon which I propose to approach the valuation of the various items in this matter.

245.   The same must apply to the argument that because an order was made that the real estate valuation should be as at 31 March 2011, the properties should be valued exactly at that date. That date was shortly after the Japanese earthquake, an event which would have potentially seriously skewed the valuations had there been insistence on that date.  But the date was fixed before the earthquake occurred.  Had the valuation date been fixed as at 31 January 2011, it would have been arguable that the earthquake should be totally disregarded.  Either circumstance would have been unrealistic.  It was necessary to have a fixed date for convenience sake, but that does not require the court to close its mind to events that take place after a signal event such as the earthquake.

246.   In reality, a good argument existed for the valuation date to be fixed well before the earthquake.  Had the husband and father not engaged in a conspiracy, but faced up to the reality of the litigation, there is every reason to expect that it would have come to trial and been resolved in late 2009 or early 2010, a very long time before the earthquake.  By resisting disclosure of valuations, by pressing for the delivery of the 2006 CLA by the wife, by engaging in the conspiracy and by creating a situation which resulted in the s 17 proceedings and the corresponding satellite litigation, the husband and father have seriously delayed the timeous resolution of this litigation This is a case where it is entirely appropriate to take a very broad view of real estate valuations.

The accounting experts:

247.   Both parties engaged chartered accountants, Mr Clokey for the wife and Mr Allen for the husband, to produce principal expert reports which assembled specialist valuation reports and took an overview of the whole of the property with a view to determining the value of that property.  Both are highly experienced in this area and were entirely appropriate people to be instructed, and both were entirely independent of both the wife and the husband. 

248.   Mr Pointer was concerned that Mr Clokey may have overstepped the bounds of his particular expertise in expressing views on matters for which specialist valuation reports had been obtained.  I note that limitation and have been careful to have regard to that factor in weighing the reports from Mr Clokey and Mr Allen.

249.   Mr Allen was not available for the trial for personal reasons which were entirely understandable, and Mr Green, a member of his team, gave the evidence.  That did not in any way detract from the quality of the evidence. But Mr Green was obliged to acknowledge that a great deal of the work that had been undertaken have been undertaken on the basis of reconstructed accounts, not on audited accounts.  He accepted that limited value could be placed on reconstructed accounts which were dependent upon the information supplied to those reconstructing the accounts.

250.   The experts were agreed that the husband’s net worth was primarily represented by the value of the Japanese real estate, less external loans, adjusted for surplus assets and liabilities, including loans with related parties and personal assets.  The net result after realisation costs and taxes represented (in most instances) an indication of the value of the shares of the relevant companies.

251.   The property, the value of which is to be determined, is in London, Tokyo and San Francisco.  The wife’s primary base is to be in Hong Kong.  Four different currencies are therefore involved in the calculations.  The valuations of the various property will be dealt with principally in the local currency, which I will convert to Hong Kong dollars for convenience.

252.   One of the very great difficulties presented to those advising the wife in this case was the limitations imposed upon them by not having information that one would expect to be supplied.  For a large number of companies, the accounts had to be reconstructed.  The accounting experts were agreed that audited accounts are more reliable than management accounts, which in turn are more reliable than reconstructed accounts.

253.   I do not understand there to have been any audited accounts available for any of the husband’s companies. In most cases, reconstructed accounts were used.  Management accounts for three companies, Veloqx Partners Ltd (Japan Branch), Veloqx Asset Management Corp (Japan Branch), and the Aoyama Project GK were apparently supplied to Mr Allen but were not supplied to Mr Clokey. 

254.   The consolidated financial statements of Veloqx Pte Ltd were not supplied.  There was no documentary evidence from the husband to substantiate his allegation that he did not have a beneficial interest in the Aoyama Project.  Despite the clear existence of certain CBRE and Toyo valuations[6], and orders of the court that these should be supplied, they were not supplied.

255.   Where there has not been proper disclosure by a party to ancillary relief proceedings it is open to the court, where the evidence justifies two inferences, to draw the inference adverse to the party failing to supply information.

(Paragraphs 256 to 289 are redacted.)

The Boeing Business Jet:

290.   The valuation of the BBJ put in for the wife came from Mr Anthony Brooks, who is one of only 18 International Society of Transport Aircraft Trading appraisers in the world. He was quite independent of the wife and as well as having a clear understanding of the business jet industry was able to point to comparable sales.  It was not without significance that his expert report confirmed that he read and understood that his duty was to the court pursuant to the Code of Conduct for Expert Witnesses.

291.   Mr Law, who had written a short letter giving his view of the valuation of the aircraft, wrote that letter without understanding that it would be used as evidence in court proceedings or that he might be required to give evidence substantiating that valuation.  After the close of business, the day before he was due to give evidence by video link, Mr Law produced a more comprehensive statement of his views.  The late production of this document was thoroughly unfair, but for reasons which will subsequently appear, I was of the view that little weight could be placed upon anything that Mr Law said, in the particular circumstances of this case.

292.   Although he plainly has considerable experience in the private jet industry, that experience was not as an expert valuer, but as a participant in the industry, both managing aircraft and selling aircraft.  Unlike Mr Brooks who was a true independent expert, Mr Law was the person who was employed by the husband to maintain and manage the BBJ.  Mr Law could not, consequently, in any sense, be described as an independent expert. 

293.   He was obliged to acknowledge that the firm that he operated was paid between US$2 million and US$6 million a year to maintain and operate the BBJ for the husband.  He has a plain interest in the husband’s affairs, and every reason to give an opinion that is not independent but in the husband’s favour.  There is the obvious risk that if the husband was dissatisfied with Mr Law’s evidence, the husband might remove very substantial business from Mr Law’s firm.  It is axiomatic that a person who is to give evidence as an expert valuer in court proceedings must be remote from the party who calls him to give evidence.

294.   It is plain from the evidence of both Mr Law and Mr Brooks that sales of BBJ’s do not occur often, and when they do, they occur only in a very restricted, and very often quite private market.  In my view the high discount in value attributable to the aircraft by Mr Law by reason of the limited market and the particular configuration of the aircraft, does not properly reflect the intrinsic value the aircraft has to the husband.  Notwithstanding the husband’s position as to his own net worth in these proceedings, he continues to operate the aircraft at the very great expense indicated above.

295.   Weighing the two reports in the light of the factors that I have set out, I prefer that of Mr Brooks.  Mr Brooks was an experienced, qualified, professional and an impressive witness who presented a reasoned report.  Mr Brooks was prepared to allow a discount on his figures for variables of 5%.  I value the BBJ at US$63.8 million, (HK$497.64 million).

The two Pershing yachts:

296.   The husband owns two Pershing Yachts, one a “115”, (115 feet, or 35.05 meters), the other an “88”, (88 feet, or 26.82 meters).

297.   The valuer called by the husband in respect of the Pershing yachts suffered in a similar way to Mr Law. Although as a yacht broker he plainly had sales experience, and undertook market valuations for various clients, he was neither an expert valuer or surveyor.  Like Mr Law, he was not told that his valuation was required for litigation purposes and he had not undertaken a survey of either of the yachts.  Remarkably, he had not been shown the survey reports obtained by the wife until the morning on which he gave his evidence, when he had had an opportunity to skim-read them.  He did not identify comparables until he gave his oral evidence. 

298.   It was some time since he had seen the vessels, and the condition that he reported on, particularly in respect of the smaller of the two yachts, was quite inconsistent with its recent use, although he did say that his valuation was based upon the vessel being in good condition.  He reported a vessel in poor condition.  In fact it had been shipped from Florida to the Adriatic where it had been used by the husband in the summer.  Had it been in the condition in which Mr Cohen reported, I have no doubt that it would not have then been in use by the husband.

299.   The condition of the vessel that Mr Cohen reported was the condition of a vessel that has not been properly maintained.  It cannot be open to the husband to ignore his responsibilities to properly maintain an asset, and then say that the condition of the asset is such that the value ought to be substantially discounted.

300.   Mr Laverty on the other hand was an experienced and qualified marine valuer whose valuation was based upon a recent actual condition survey report that he had obtained.  He was fully aware of the condition of the vessels, both from photographs and the recent survey report.  He had taken into account current market conditions, size, age, condition and history, accommodation and performance, reputation and experience of the builder, and design.  His valuation was described as a “Class 2” valuation which was acceptable for broad valuation purposes such as insurance. That is an entirely appropriate level at which valuations might be undertaken in ancillary relief proceedings.

301.   The evidence of both Mr Cohen and Mr Laverty was that since the global financial crisis in September 2008, the market for luxury yachts such as these have dropped considerably.  Mr Laverty acknowledged that asking prices were not a reliable guide and that there was an oversupply in the market.  There are a few recent transactions to give a guide to the value of the yachts.

302.   Weighing all of the factors this is a case where in my view it is appropriate simply to split the difference between the two valuations.  Mr Cohen valued the Pershing 115 at US$5 million, and Mr Laverty at US$10.5 million.  I fix the value of the vessel at US$7.75 million, (HK$60.45 million). 

303.   Mr Cohen valued the Pershing 88 at US$1.5 million, and Mr Laverty at US$2.5 million.  I fix the value of the vessel at US$2 million, (HK$15.6 million).

The Belvedere house:

304.   Yet again, there was a considerable difference between the parties valuers.  The Belvedere property was purchased on 23 August 2007, for US$15.5 million.  Like most parts of the world, San Francisco real estate has suffered the effects of the global financial crisis which occurred a little over a year after the purchase, in September 2008. 

305.   Ms Teeman, for the wife, valued the property at US$14 million.  Mr Lindsay, for the husband valued property at US$9 million.

306.   Ms Teeman was an impressive witness, plainly properly instructed, and as a qualified English solicitor, as well as a qualified Californian real estate valuer, clearly fully aware of her duties to the court.  She approached the valuation with a careful consideration of the area, appropriate comparables, and market circumstances, looking to its present value. 

307.   Mr Lindsay approached the matter from a somewhat unusual angle, that of an appraiser undertaking a property appraisal for tax purposes, a circumstance where the role of the appraiser is usually used to justify a reduction in value from the purchase price of the property for tax purposes.  I prefer Ms Teeman’s approach.

308.   Mr Lindsay quite remarkably asserted that there was a privacy issue on the property.  Both valuers regarded property of this nature as being enhanced in value if the living areas, both indoor and outdoor, of a property are appropriately private.  A careful examination of the photographs produced show that it was simply not possible to substantiate any privacy infringement in respect of the property, other than from the water.  The structure of the property on the road frontage, the location of the building and the terrace facing the water, on a slope below the road, and the presence of substantial vegetation, particularly on the southern boundary, provides the property with complete privacy.  There is no basis for a deduction for lack of privacy. 

309.   Mr Lindsay made a deduction in the sum of US$400,000 to cure a “defect” in the master bedroom.  I accept Mr Howard’s submission that that was absurd, when the work in question is partially completed renovations to the house being undertaken by the husband in the sum of some US$2.3 million.  The quotation for these renovations was given to the husband in January 2011, and the work is currently in progress.  Mr Lindsay should have been informed of the true nature of what was taking place.  There is no suggestion that the work will not be completed.  In the master bedroom, a matter of concern to Mr Lindsay, the husband is installing an audiovisual system, with the speakers alone costing in excess of US$1 million.  The deduction was entirely inappropriate.

310.   Properties on Belvedere Island, particularly those having a view of the Golden Gate Bridge are amongst the most prestigious properties in the San Francisco Bay Area.  There have been few sales of equivalent properties in the area, but both experts agreed that is appropriate to look at an area that is wider than just Belvedere.  Ms Teeman and Mr Lindsay both considered it was relevant to look at sales in other significant Marin County communities such as Tiburon and Sausalito.  The evidence was that the increase in Marin County from March 2010 to March 2011 was 4.4%.  That increase is entirely inconsistent with Mr Lindsay’s evidence that, effectively, the Belvedere property had reduced by nearly 20% per annum since purchase.

311.   Weighing the evidence contained in both reports, I accept that there will have been a reduction in value since the purchase of the property, but it remains a significant trophy property with a most desirable view and characteristics that would appeal to the most discerning buyer.  I prefer the evidence of Ms Teeman to that of Mr Lindsay. But there must be some adjustment for the lack of sales in the Belvedere area. I fix the value of the Belvedere property at US$13 million, (HK$101.4 million).

Juniper Hill, England:

312.   The property at Juniper Hill, England, has been purchased and is plainly for the sole use of the husband.  It too may be described as a trophy property, being a recently constructed substantial house.  The house is in the revival style, a modern replication of a large period property, but with all of the advantages of modern facilities. 

313.   The property is in the course of renovation, the renovations including the establishment of an underground car park, with a lift accessing the car park, where a fleet of cars, including Le Mans race cars are to be stored.  In addition an underground tennis court, for all weather tennis, is being built.  I reject entirely the evidence of both father and the husband that the property at Juniper Hill is to be occupied by the father and his wife.  Their evidence in that respect can only be categorised as outright lies.

314.   The father has had no involvement whatsoever in the instructions to the engineers and town planners engaged in the project.  It is clear that the instructions have come from the husband, both personally, and through staff in his Tokyo office.  The husband collects cars, has previously run a Le Mans race team, and has a personal collection of vintage Le Mans cars.  The father has no particular interest in cars.

315.   The husband is a self-declared tennis “nut”, who employs a personal coach and playing partner, and who will play tennis as often and wherever he can.  The suggestion by the father that the underground tennis court is for the benefit of his two sons of his present marriage, who both reside in Hong Kong, and attend school in Hong Kong was simply farcical. 

316.   I reject completely the suggestion that the Juniper Hill renovations are for the benefit of the father.  I accept Mr Howard’s submission that this property is owned in reality by the husband and should be brought into the account. 

317.   There was no current valuation of the property, which was purchased in October 2009.  In the absence of a current valuation I fix the value of the property at its purchase price, £6.7 million, on current exchange rates HK$82.68 million.

The wine collection:

318.   To say that the husband’s evidence in respect of the wine collection was in disarray is an understatement. 

319.   In his first Form E, on 12 February 2009, the husband stated that he had a wine collection, purchased at a total cost, (prior to 30 September 2008), of US$24.233 million.  The wine is broadly high-quality French wine, purchased from well-known entities such as Christies, Sotheby’s, Zachy’s and Elliston Fine Wines.  I understand that most of the wine is stored in the United States. 

320.   Throughout the proceedings, until he gave evidence the husband described the wine as his “wine collection”.  In his evidence he preferred to refer to it as a “wine investment by the Citic Group”.  That was dissembling and constituted an adverse comment on the quality of his evidence.  Although an investment, the husband acknowledges that from time to time he draws from the stock of wine various bottles for his personal consumption.  He has kept no record of these.  Whether the wine is an investment or a personal collection or for personal consumption is irrelevant.  The simple fact is that the wine, be it a collection or an investment, is an asset ultimately belonging to the husband, which must be brought into the account.

321.   In answer to the wife’s 5^th questionnaire and request for documentation, through his solicitors on 5 September 2011, the husband produced a schedule entitled “Schedule 15” purporting to set out all wine purchases from 2007 until 2011.  The total of that schedule was US$21.542 million.  The discrepancies demonstrated by this figure, against his Form E, were not assisted by the fact that an analysis of the invoices disclosed by the husband on the one hand, and yet another schedule prepared by his accountant Mr Green, on the other hand, demonstrated a different difference of US$1.7 million. 

322.   Mr Clokey has quite properly raised significant issues concerning the reliability of the husband’s evidence in respect of the wine collection.  Mr Green, for the husband, has attempted to answer these questions but has signally failed to adequately do so.  I accept Mr Howard’s submission that Mr Clokey’s questions regarding the difference in the wine cost and wine value remain unanswered.

323.   The husband relied upon a valuation of his wine collection from an American firm, Zachy’s.  Again, the husband has not obtained expert valuation evidence from an independent expert. Zachy’s is one of the firms from whom he has purchased wine.  During the relevant period he has made purchases from Zachy’s to the extent of a little over US$5 million.  The valuation was not accompanied by any sort of report explaining the basis upon which it was undertaken; it was merely a schedule with a statement of values.  The valuation of the husband’s wine collection, acquired at a cost in excess of US$20 million is said now to be worth only US$10.6 million.

324.   I accept that wine is a speculative investment in which the value may go up or down.  Mr Clokey had checked with Sotheby’s and the advice he had received was that champagne had been a poor investment, claret a good investment.  The evidence was that the Sotheby’s wine index, over the relevant period, a recognised index, has increased by 30%.  That evidence was not challenged.  If a 30% factor is applied to the husband’s wine purchases over the relevant period, the wine is arguably worth something in the order of US$33 million.

325.   I accept that the purchase price paid by the husband includes a buyer’s premium, and even if there has been a rise in the price of a wine, on sale at auction the sale price must be discounted by a seller’s premium.  But there was nothing in Zachy’s valuation to substantiate the very significant reduction in value contended for by the husband. 

326.   If the value of the wine, purchased for at least US$20 million, potentially worth US$33 million, is to be brought into account at US$10 million, there needs to be more than merely a schedule of values.  There needs to be a rational explanation for the very significant reduction in value in what appears to be a very short time.

327.   I propose to take a broad view of the situation and value the husband’s wine collection at US$20 million, (HK$156 million).

Miscellaneous assets:

328.   There are other miscellaneous assets belonging to the husband, either personally or through corporate vehicles, which must be taken into account.

329.   According to the husband’s Form E, he has HK$19,473,321 in cash and bank accounts.  I round the sum to HK$19 million.

330.   According to his latest Form E, the husband has 10 motor vehicles, but it appears that notwithstanding his undertaking not to dispose of assets he has in fact sold a number of cars.  On his valuation the remaining 10 motor vehicles were worth US$2.28 million.  On the wife’s valuation the vehicles were worth US$3.18 million. 

331.   As part of her evidence, the wife produced a witness statement from an enquiry agent which showed that in 2008, the husband had purchased a Rolls-Royce Phantom at a cost of at least £285,000, in 2010, a Fiat Abarth 695 Tributo Ferrari at a cost of £40,000, and in September/October 2010, a Ferrari 599 GTO and a Ferrari 458 Italia at a cost of £470,000.  These vehicles were not included in his disclosure.  He did not challenge this evidence, nor was the wife cross-examined on the statement produced.  There is no reason why I should not put weight on the statement, and add to the husband’s car collection a further US$1.1 million. 

332.   Looking at the matter broadly I value the husband’s motor vehicles at US$4 million, (HK$31.2 million).

333.   The husband has four watches which on his valuation in his Form E are worth HK$8,930,998.  There is no reason why they should not be valued at that sum.

334.   The husband acknowledges that a sum of US$587,754, (rounded to HK$4.58 million), spent by him on a mistress, shortly before the marriage came to an end, by way of a cash gift and purchase of goods, should be added back to the schedule of assets.

335.   During the period when the husband had transferred the shares in his group to the father, (who used OIL as the corporate vehicle which received the shares) the husband’s corporate group paid OIL a dividend of S$6.5 million, (HK$40 million).  This sum must be added back to the husband’s assets.

(Paragraphs 336 to 348 are redacted.)

Other adjustments:

349.   Mr Clokey accepted adjustments proposed by Mr Allen to the reconstructed balance sheets, resulting in a deduction of HK$139 million.  I allow that deduction.  Mr Clokey accepted that it was proper to take into account tax that would be payable on the disposal of properties, loan breakage cost, and transaction costs on the disposal of properties.  I allow those deductions.

The value of the husband’s assets:

350.   The net value of the husband’s assets may be demonstrated by the following schedule[7]:

	HKD millions
Japanese Property (net)	7,327.00
Boeing Business Jet	497.64
Aoyama Project	4.00
Pershing Yachts	76.05
Belvedere House	101.40
Juniper Hill	82.68
Wine	156.00
Cars	31.20
Watches	8.93
Cash	19.47
Add back gift	4.58
Add back dividend to OIL	40.00
Net worth before tax and liquidity	8,348.95
	___________
Deductions
Adjust reconstructed balance sheets	139.00
Tax realised on disposal of property	1,189.00
Eurobond tax disallowed	110.75
Loan breakage costs	11.00
Transaction costs on disposal	473.00
	___________
Husband’s net worth at 31 March 2011	6,426.20
	==========

351.   I accordingly find the total sum of the husband’s assets to be HK$6,426.20 million, which I round to HK$6,426 million.

The wife’s assets:

352.   In his closing submissions, Mr Pointer put in a schedule, showing the wife’s assets at HK$108,432,290.  That schedule includes costs recoverable by the wife, for herself, in the s 17 MPPO/fraud action of HK$17,417,143, together with disbursements she has paid in those proceedings of HK$8,424,000. 

353.   Mr Pointer sought also to include, as an asset, her costs incurred in these proceedings to date of some HK$11.78 million.  It is not appropriate in my view to include any of those sums, large though they are, as resources available to the wife.  It makes no difference that some part of that sum constitutes solicitors fees in respect of her own work as a solicitor in these proceedings.  Insofar as they are not fees for her own work she has had to incur the expenditure.  She has undertaken that work, or her assets have been depleted by those sums, by the actions of the husband and father in conducting the litigation in the way they have.  She should be recompensed for that work or that depletion, a payment or recompense which should not be seen to increase her available resources.

354.   Although in his opening submissions, Mr Howard had put the wife’s assets at considerably less, he did not challenge Mr Pointer’s schedule, save that in his submissions in response filed after the hearing, he correctly pointed out that the evidence established, through the wife’s mother’s bank statements, that the wife’s mother had contributed 10% towards the purchase of a Hollywood Heights property.  The wife is entitled to deduct 10% of the net value of that property from her assets, a sum of HK$3,742,000, and the sum of HK$25,841,143 being costs and disbursements she is in the process of recovering in the s 17 MPPO/fraud action. 

355.   I accordingly find the wife’s assets at HK$79.2 million, which I round to HK$79 million.  She must give credit for that sum in the final calculation.

The total assets:

356.   The total assets available for division between the parties therefore stand at HK$6,505 million, (US$834 million).

The lifestyle prior to the breakdown of the marriage:

357.   The parties lifestyle prior to the breakdown of the marriage, was probably best described in cross-examination[8] by the father.  He said that it was “just below billionaire class”.  I understood the reference to be to a US dollar billionaire, an assessment by the father that is consistent with my assessment of the total assets of the parties.  The description is entirely consistent with the evidence of the wife, which I prefer to the evidence of the husband, in this respect.

358.   From the beginning of the relationship they flew first class on scheduled airlines, or when the need arose, or by choice, on chartered private jets.  On one occasion, wanting to get from England to Tokyo, they chartered a jet from Luton Airport, simply for the two of them.  On two occasions at least, they flew on chartered jets to the Maldives.  When in the Maldives or in the Seychelles they stayed always in the most luxurious rooms in the most luxurious resorts.  They enjoyed luxurious skiing holidays.

359.   It is right that on one of those occasions in the Maldives, they were accompanied by the CEO of Prada Japan, and his wife and the occasion was to celebrate the successful purchase and leasing of the Prada Japan building.  Consequently, to an extent, that trip might be regarded as a business expense.  But at the same time it was a holiday for the husband and wife, and was indicative of the standard of holidays that they enjoyed.

360.   They chartered substantial motor yachts for holidays, and ultimately the two Pershings were acquired.  The wife had a significant input into the interior design of the Pershing 115. Like the BBJ however, the work was not finished before the marriage broke down and she was not able to enjoy holidays on that vessel. 

361.   The husband sought to argue that the Pershings were simply business equipment, perhaps like a bus used to transport workers, and that there was no element of holiday involved in the ownership of the vessels.  He sought to justify this by demonstrating that there is an annual conference of international real estate developers held in Monaco, where the participants bring their own or chartered yachts to Monaco and where they entertain each other, bankers, prospective purchasers and the like.

362.   I accept that there may be an element of business use in the motor yachts, but the husband’s use of motor yachts is best demonstrated by the period he has spent over the recent summer on a chartered motor yacht in the Adriatic Sea.  Despite owning the two Pershings, he chartered MY Kogo, a 235 foot, (71.71 meter) motor yacht.  The charter cost €2 million.  There is no suggestion that there was any international real estate conference taking place in the Adriatic area at that time.  He kept no record at all of the guests who attended in order to indicate to tax officials that the vessel was being used for business purposes, not even for the 80% of the time that he said matters like the motor yachts and BBJ were used for business purposes. 

363.   He did not dispute that a number of his friends visited him on the yacht, or that a number of South American “models” stayed on the yacht for a period of time.  The translation of an article in a Croatian newspaper, following an interview with the husband, offers no indication at all that the vessel was being used for business purposes.  The husband gave no evidence at all of any specific business matters that took place, in reliance upon which it might be said entertainment on a luxury motor yacht was an important element.  No doubt he stayed in touch by satellite communication with his Tokyo office and father’s London office.  But the reality of the situation was that he had at least a two-month holiday on a luxury motor yacht, all at the expense of his business.

364.   Not only did the husband charter a motor yacht for that holiday, he shipped, by way of a dockship, the Pershing 88 from Florida, across the Atlantic Ocean, to the Adriatic Sea in order that it may act as a “tender” to the larger yacht that he had chartered. He said that he needed the “tender” from which to swim.  It is hard to imagine a more flamboyant exercise of conspicuous consumption.  I am satisfied that it was a demonstration by the husband of the standard of living of himself and the wife prior to the breakdown of the marriage, a standard which continued, for him at least, after the marriage.

365.   I note that over the last 12 months, during a period when the husband has been asserting that he is unable to make any financial provision for his wife, and must rely on his father for a Thomas order, he has spent at least two months in the Mediterranean on a motor yacht at a cost of €2 million, has increased his wine collection, is spending between US$2 million and US$6 million per year maintaining and operating a Boeing business jet, and is undertaking quite extraordinary renovations to his property at Juniper Hill near London.  This is not the lifestyle of an impecunious man, nor is it the lifestyle of a man who asserts that he has not yet reached the lifestyle of a billionaire.

366.   Had the marriage not broken down, the bulk of their travel would have been on their personal, private BBJ, which had been outfitted to their personal specifications, the wife having a significant input into those specifications.  It is right that she flew on the aircraft only on a test flight, but the acquisition had been made, and private jets, both owned or chartered were the future travel method that she had already started to enjoy.

367.   Their accommodation in England was luxurious.  Both Juniper Hill and Enbourne House are very substantial homes, as indicated by the purchase price of Juniper Hill, and the rent for Enbourne House at £480,000 a year.  The house acquired in San Francisco was rightly described by Ms Teeman as a trophy house. The renovations being undertaken there, (see §309 above), are a further illustration of the standard of living enjoyed both during the marriage by the couple, and after breakdown by the husband.

368.   Mr Pointer sought to argue that the standard of living of the couple prior to the breakdown of the marriage should not be measured by these standards.  He said that they while they might have been looking forward to a billionaire lifestyle at some time in the future, they had not yet reached that level.  The evidence is directly contrary to the submission.  There are very few people in the world who are able to enjoy the standard of living and lifestyle that was enjoyed by this couple during their marriage.

369.   An examination of the husband’s life style immediately following the breakup of the marriage to March 2011, demonstrates the standard of living that would have been enjoyed by the wife had the marriage not broken down.  That lifestyle was analysed by Mr Clokey, and while Mr Allen sought to allocate, based on the husband’s instructions, 80% of the spending to business matters, rather than personal matters, Mr Clokey’s analysis was broadly not challenged.

370.   In the period between 1 May 2008 and 31 March 2011, a little under 3 years, the husband’s records show that his personal spending amounted to some US$68 million.  Amongst other things, in that period the husband spent over HK$7 million on cars.  He spent HK$194 million on aircraft.  He spent HK$4 million on jewellery.  He spent HK$60 million on wine.  He spent HK$197 million on motor yachts. That spending amounts to a total of HK$463 million or US$59.2 million.

371.   Some of the spending might be classified as business spending or an investment.  The husband put the business content at 80%, but was unable to justify that figure in any way.  What is important is that it demonstrates the amount of disposable capital available to the husband which, had the marriage not broken down, would have been available to both the husband and wife.  This was not a couple who were looking towards a future life of luxury, or on the cusp of a billionaire lifestyle.  They had plainly reached those levels and were in full enjoyment of the benefits of such a lifestyle.

372.   That is the standard of living to which I have regard, in accordance with s 7(1)(c), in respect of the wife.  It is the standard of living to which I have regard when, pursuant to s 7(2) I exercise the powers of the court, so far as it is practicable and just to do so, to place the child in the financial position in which she would have been, had the marriage not broken down, and the husband had properly discharged his financial obligations and responsibilities to the child.

The wife’s needs:

373.   Under this heading I propose to consider the wife’s needs in four categories: accommodation in Hong Kong; accommodation in London; other capital requirements; and finally a Duxbury sum to provide for her monthly living expenses.

374.   I am satisfied that the assessment of the wife’s needs has been undertaken extravagantly.  It is right, as I have found, that the couple lived the lifestyle of a billionaire, but even with that lifestyle the assessment is extravagant.  That said, the lifestyle was that of a billionaire, it is clear that needs must be assessed generously.

Accommodation in Hong Kong:

375.   Throughout the relationship, including both the period prior to marriage and during the marriage, the husband and wife have enjoyed what can only be described as luxury accommodation.  Prior to the breakdown in the marriage, their principal home was Enbourne House in England, a property apparently owned by the King of Jordan, the standard of which is illustrated by its annual rental of £480,000. They had the exclusive use of that property.  The attempts by the husband and the father to paint the property as a “corporate dormitory”, used also by the father and company officers from the Langham Estate and the Japanese business was farcical.  Apart from anything else the lease specifically provided that the property was for the exclusive use of the husband and wife.

376.   It may well be that now that the husband is single, the father and his wife are using the property when they go to London, but that does not detract from the exclusive nature of the property for the husband and wife during the marriage.

377.   After their marriage in Hong Kong a luxury property on the Southside was rented for them.  They have lived in other equally luxurious properties, also rented, in Hong Kong.  The standard of their housing is illustrated also by the quality of the property purchased in Belvedere, San Francisco.  As I have noted, that is rightly described as a trophy house.

378.   The needs of the wife for accommodation are to be measured against the standard by which they were living during the marriage and not, as I interpret Mr Pointer’s submission to be, by the standards of a property in which most Hong Kong people would consider themselves fortunate to live.

379.   When the marriage broke down the husband recognised the wife’s need for accommodation in Hong Kong and various properties were suggested.  At one stage the parties considered purchasing a property in Jardine’s Lookout, previously owned by a member of the father’s family.  There was an exchange of e-mails concerning this property. It is apparent from that exchange that the wife believed the property would be renovated to her standards, whereas the husband believed that it would be an ideal property redevelopment in which a suitable apartment could be included for the wife and daughter. 

380.   I am satisfied that no agreement was reached as to how the property would be dealt with, and that no inference can be drawn that the consideration of this property by the wife and the husband, as a possible place for the wife to live, means that the wife is entitled to property to a value of HK$600 million.

381.   I have reviewed the various properties that have been suggested.  It is realistic, having regard to the standard of living, that the wife should be able to consider, within the range of property which she might acquire in Hong Kong, at least a semi-detached house with a garden.  Having regard to the appropriate standard to which the wife ought to be accommodated, I fix a sum of HK$250 million as the sum to be paid by the husband to the wife for accommodation in Hong Kong.

Accommodation in London:

382.   The wife went to secondary school in England.  At that time the wife’s parents purchased an apartment in a good part of London which was available for the use of the wife and for the parents during the period of schooling, and afterwards when the wife was at university, and working in London.  Having regard to the wealth of this family, it is to be entirely expected that the wife would wish that her daughter should attend the same school, and that she should have a property in London in which to live while the daughter is at school, and in which the daughter might live after school on the same basis as the wife did.

383.   Had the marriage not broken down, when the child is at school and afterwards, the wife would have been living in a property of a quality such as Juniper Hill or Enbourne House.

384.   I have reviewed the various suggestions that have been made, by both the husband and wife, as to the type of property that would be appropriate.  Have regard to the appropriate standard to which the wife should be accommodated, I fix the sum of £2.5 million (HK$30 million) for the purchase by the wife of accommodation in London.

385.   Mr Pointer argued that following the completion of the daughter’s tertiary education, and presumably ultimately her marriage, a time, quaintly described by Mr Pointer as the years of dower, the wife ought to be expected to sell the London property and put the proceeds of sale towards her future support.  Consequently, he said that any Duxbury sum should be reduced to allow for that future influx of capital.  That might be appropriate in some cases, but it is not appropriate in this case.  This couple lived an international lifestyle with homes in England, Tokyo and San Francisco.  I have no doubt that in due course Hong Kong would have been added to that list.

386.   The wife will spend a great deal of time in England when her daughter is at school and university, and she will establish or resume her social circle when there.  I see no reason why she should be forced to sell a London property and be confined to one home only in Hong Kong, simply because her daughter has completed education.  Had the marriage continued there would have been no suggestion that properties in different countries should be abandoned because the daughter was no longer full time with the family.

387.   This is not a case where the Duxbury sum should be reduced for that reason.

Additional capital requirements:

388.   In addition to capital to purchase a property in Hong Kong, and London, the wife seeks capital sums to meet stamp duty, commission and conveyancing fees on each property, and to furnish those properties.  Those are reasonable requests.  I allow HK$11 million for purchase costs in Hong Kong[9], and HK$2 million for furnishing the property.  I allow £130,000, (HK$1.6 million) for purchase costs in London[10], and HK$2 million, (£166,000) for furnishing that property.

389.   I allow HK$2,500,000 in Hong Kong for the purchase of two motor vehicles, and £80,000, (HK$1 million) in London for the purchase of one motor vehicle.

390.   The wife says, and I accept, that boating was a major part of their lifestyle and that her daughter particularly enjoys being on the water.  She seeks a sum of nearly HK$15 million to enable the purchase of a new 60 foot motor yacht, similar in style, although much reduced in size, to the Pershing motor yachts.  The wife makes the point that the motor yacht suggested is considerably smaller than the Pershing 115, and costs just 6% of the cost of that vessel.  Whilst I have accepted that there is an element of business use in the Pershing yachts, that element has not been established by the husband to be as nearly as great as he asserted.  The Pershing motor yachts are plainly, principally, play things.

391.   Having regard to the standard to which this family lived, in my view, it is reasonable that the wife should be able to purchase a motor yacht for use in Hong Kong.  During the course of the trial I suggested to her that for much less than the sum she sought she could purchase a junk for weekend use.  Mr Howard has persuaded me that that was the wrong approach.  It is right that many people would be perfectly happy with a junk.  But the wife’s standards are to be measured against the style to which she had become accustomed, and not against that with which many Hong Kong people would be happy.

392.   That said, the amount sought is too great.  I allow HK$5 million capital for the purchase of a motor yacht in Hong Kong.

393.   The wife seeks capital to enable her to join the Aberdeen Marina Club, the American Club, and the China Club.  Membership of such clubs in Hong Kong is perfectly normal, even for persons living at a lower standard of living than the husband and wife.  A much more modest sum is sought to join the Wentworth Club in England.  In the circumstances of this case the capital request is reasonable.  I allow the sums claimed, a total of HK$4.6 million.

394.   The wife sought a life insurance single premium of nearly $2.8 million.  No submissions were addressed to me on this point.  Having regard to the capital resources that the wife will have at the conclusion of these proceedings, in the unfortunate event of her early death, there will be more than adequate funds available to care for her daughter.  Whilst it is prudent for a person to take life insurance I do not see that it is necessary in this case. 

395.   Seeking the provision of a capital sum of HK$55,000 for the purchase of dogs and transportation of dogs to Hong Kong is excessive.  If the wife wishes to have a dog she must fund the purchase from her own capital.

396.   The total sum of the amounts that I have awarded in respect of capital, other than the Duxbury fund, is HK$309.5 million.

A fighting fund:

397.   The father has made plain that he intends to pursue the wife and her parents in litigation for what he contends are wrongful acts on their part to his disadvantage, in the discharge of their duties as officers of various companies, and the wife in her personal capacity.  The father does not dispute a description of himself as an extremely litigious man.  There is every reason to expect that he will be true to his word.

398.   The father has said, through his counsel, that if the wife were to accept the Thomas offer that he has made US$26 million, (HK$202,800,000) he would release the wife and her parents from any liability they might have to him.  But he has not said that he will give that release if the sum ordered by the court exceeds that offer.  In those circumstances, the wife seeks the provision of a fighting fund to enable her to resist that litigation.

399.   In the circumstances that is an entirely reasonable request.  She should not have to have recourse to her ancillary relief entitlement to fight what appears to be entirely unjustified and vindictive litigation.  Nothing was suggested during the course of the present proceedings which would justify any legal action by the father against the wife or her parents.  To the contrary, the evidence tended to establish that the acts of the wife or her parents were all acts undertaken at the direction of the husband.  In my view further satellite litigation arising from these proceedings would be both futile and a complete waste of money. 

400.   The scope of the costs which have been incurred in the present litigation gives an indication of the sort of funds which are likely to be required.  I award the wife a fighting fund of HK$60 million. 

401.   If the father were to give the release he has offered to the wife and her parents, at the same time as payment of the first instalment of the ancillary relief award is made to the wife[11], the amount of the fighting fund should be deducted from the payment.

The Duxbury calculation:

402.   While I accept that this family lived to a very high standard, I am satisfied that the Duxbury calculations put before me for the wife showing her anticipated total monthly expenditure to be in excess of $2 million, to be excessive.  I will comment on various of the items, but I do not propose to analyse the schedules in detail, as most of the figures, such as personal items, speak for themselves.

403.   The allowance I have made for the principal capital items, housing in Hong Kong and London and the motor yacht, is significantly less than that on which the wife’s the Duxbury calculation was predicated.  The monthly expenditure reduces accordingly.

404.   The wife is perfectly entitled to include a provision in her monthly allowance for holidays for herself and her daughter, but even having regard to the standards of their living, a provision of HK$850,000 per month for holidays is excessive.  It is difficult to see how “personal expenditure” of HK$38,000 per month is justified on top of HK$430,000 per month for clothes and footwear and HK$85,000 per month for food wine and household goods.  I accept that the couple lived to a very high standard, but these figures are quite unsubstantiated by any records of actual expenditure. 

405.   On the basis that separate provision is to be made for the daughter, and looking at the matter broadly as I must, I have concluded that a monthly sum of HK$800,000 will be sufficient for the wife to meet her needs, measured to the appropriate standard, over and above the capital requirements that I have set out.  At my request, following the conclusion of the trial, both parties supplied to me Duxbury calculations to provide for a range of monthly sums.

406.   In the Duxbury calculations, both parties adopted the same parameters. Those parameters are: life expectancy, 49 years (to age 86); Year 1, income yield, 1.50%, annual rate of inflation, 3%, and the rate of capital growth, 3.75%, Year 2 and thereafter, annual income yield, 3%, annual rate of inflation, 3%, annual rate of capital growth, 3.75%, Those are entirely appropriate parameters.  They produce a rate of return in year 1 of 2.25%, and year 2 and thereafter of 3.75%.

407.   Yet the calculation by those advising the wife was that the capital sum required was HK$214,630,740, (which I round to HK$215 million).  The capital sum required on the calculation of those advising the husband was HK$135,754,899, (which I round to HK$136 million).

408.   I have received short written submissions from the solicitors for each party on the basis of the calculations, in which they seek to explain the difference.  I accept the submissions from the wife’s side that the rate of return is not actually a fourth parameter, and should not form part of the calculation, but is a product of the proper parameters applying the formula; (income yield + capital growth) – inflation = rate of return.  Thus:

 

Year 1:	(1.5% + 3.75%) ‑ 3% = 2.25%;
Year 2 and thereafter:	(3% + 3.75%) ‑ 3% = 3.75%.

I accept the submission that by factoring the “rate of return” into the Duxbury calculations, in addition to the three proper factors, those acting on behalf of the husband have double counted the rate of return, thereby, inadvertently, producing a lower, incorrect figure.

409.   I am satisfied that the correct figure for the Duxbury sum is accordingly $215 million.

410.   The total capital sum, based upon the wife’s needs, generously interpreted, awarded to the wife, excluding the fighting fund, would be accordingly HK$524.5 million. After giving credit for her own assets, the net sum payable would be HK$445.5 million.

The daughter’s needs:

411.   Just as the wife has greatly exaggerated her requirements, so am I satisfied that the Duxbury calculation for the daughter’s needs have been greatly exaggerated.

412.   Mr Pointer suggested a fund of US$3 million, (HK$23.4 million) as an appropriate sum to provide a Duxbury fund for the maintenance and education of the daughter.  Mr Todd for the father, who is to provide that sum, did not take exception to the proposal. 

413.   I order that separate provision be made for the daughter by way of a capital sum of HK$23.4 million 

414.   Under the provisions of s 5 and s 6 MPPO, where separate provision is made for a child, the sum may be paid to a person on behalf of the child or the sum may be the subject of a settlement.  I propose to leave it to the parties to agree upon the most appropriate method of dealing with this provision.  Whatever method is agreed, the discretion as to the application of the funds should lie solely with the wife or an independent person of her choice, and should not be fettered by any power at all in the husband or father.  

415.   Leave is reserved to apply if the parties are unable to agree on the appropriate method within 90 days of the date of this judgment.

Should there be departure from equal sharing:

416.   The total assets available for distribution between these parties is HK$6.505 million.  There are significant surplus assets remaining after the needs of both the parties have been catered for. 

417.   Some of the assets were in existence prior to the marriage, but a very significant proportion of the assets have been acquired during the marriage.  I find it appropriate at this stage to remind myself of the passage from B v B (Ancillary Relief) [2008] 2 FLR 1627 at §24, cited with approval by Ribiero PJ in LKW v DD at §81:

“The sharing principle gives rise to the general proposition that no distinction is to be made when considering contributions of spouses to the marriage (s 25(2)(f)[12], between monetary and non-monetary contributions. Thus there also follows the requirement to test the outcome of the exercise against the yardstick of equality, and to depart from it only if and to the extent that there is a good reason for doing so: see Lord Nicholls in White at p. 605E. Lord Nicholls there expressly adverted to the fact that, more often than not, it is necessary to depart from it…The importance of the “yardstick of equality” is twofold. First it underlines the necessity not to treat financial contributions differently from those in non-monetary form. Second, it underlines the essential fairness of equal division in a large number of cases of shared matrimonial life.”

418.   In order to determine whether good reason exists for departing from the principle of equal division a number of factors must be considered.  These factors, as Ribeiro PJ pointed out in LKW v DD at §85, while individually or cumulatively might be potentially capable of resulting in a departure from equal division, a finding that one or more of those factors are engaged does not necessarily mean that departure must occur.

Dynastic property and custodianship:

419.   The first of the factors to be considered is the source of the property.  It is here that I consider it appropriate to consider the arguments advanced based upon dynastic property and custodianship.

420.   It may be right to say that by the use of various legal structures such as the Framework Agreement, the COAs and the PNA, the father was endeavouring to put in place a dynastic structure.  But that is a long way from saying that consequently the property ought to be excluded from the calculation. 

421.   Both the husband and father were obliged to acknowledge that the legal and beneficial ownership of property lay with the husband, albeit subject to the rights of the father under the Framework Agreement.  The right was there for the father, as has been seen, to recover property from the husband, and if he had lawfully done so, legal and beneficial ownership of that property would have gone to the father.  In those circumstances the wife would be restricted to arguing that the potential inheritance of the husband constituted a resource to which the court should have regard.  I have found that those rights have not been exercised by the father.

422.   No authority was cited in respect of the proposition that dynastic property was a concept known to matrimonial law, other than Charman, where an argument that certain trusts involved dynastic property was rejected on the facts.

423.   Both the husband and father asserted in their witness statements that the husband was merely a custodian of the property in his name.  I understood this to be in the nature of a “Patek Phillipe” argument: “you never actually own a Patek Phillipe, you merely look after it for the next generation”.  Putting aside for a moment that such a concept would seem to offend against the rule against perpetuities, there was nothing in the documentation to indicate that either the husband or father had such a concept in mind at any time.

424.   In the course of submissions I asked Mr Pointer if he would let me have a note of any reference made in the discovered documentation to anyone using the expression “custodianship”, other than with reference to a holder of bearer shares[13].  Nothing has been produced.  I am satisfied that while the father wished to retain some control over assets he had given, legally and beneficially, to the husband, it was not the intention of either the husband or the father that the husband would never actually own, legally and beneficially, the property given to him by the father, or the profits made from those gifts.

425.   I accept that the concept of dynastic property involves a family situation where property has been inherited by one generation, and is passed on to another generation, and that next generation may feel a familial obligation to pass the property on to its own next generation.  Unless there is a legal structure such as a trust which takes property out of the legal and beneficial ownership of each generation, or some other lawful structure, the property will fall for consideration in ancillary relief proceedings.  

426.   I reject the concept of both dynastic property and custodianship as being concepts that need to be taken into account in these proceedings.  That is not to say that the background to the acquisition of the property should be disregarded.  That was made clear by Lord Nicholls in White, at p 611, and is reflected in LKW v DD in §§90-94.

427.   I accept the submission made by both Mr Pointer and Mr Todd, that “without the father, the husband would be nothing”.  It is impossible in this case to escape from the proposition that the father has given the husband, first a quite extraordinary starting base, a gift of J¥2.3 million, without which the Japanese property empire could not have started.  It is right that subsequent acquisitions have been made in part from the redevelopment and refinancing, first of the V28 building, and subsequently the process was repeated with other buildings.  But as well as that, secondly, the father has made continuous payments to the husband to help expand the Japanese business.  I have held these payments, in so far as they are loans and not gifts, constitute soft loans which are in reality, not repayable by the husband.  That must serve only to enhance the extent of the assistance given by the father.

428.   This is a very significant fact which must be taken into account, and having regard to the value of the property in this case, and the extent of the assistance by the father, by itself might well be argued to be a sufficient reason for departing from equal sharing.

Conduct:

429.   It is the duty of the court to have regard to the conduct of the parties in exercising the discretionary jurisdiction under s 7.  In LKW v DD at §104 Ribeiro PJ put the matter this way:

“Conduct, or more accurately, negative conduct is therefore only to be regarded as a material factor if it is obvious and gross in the sense explained in Wachtel v Wachtel [1973] 1 All ER 113, 119, or, which comes to the same thing, if it is such that it would in the opinion of the Court be inequitable to disregard it.”

An example of such conduct may be found in K v K (Financial Provision) [1990] FCR 372.  The conduct to be taken into account was described in this way:

“In my judgment there should be taken into account first of all the fact that the husband did not get other employment, and secondly the fact that he has had a drink problem and the disagreeable behaviour relating to it including, for example, neglecting the house and ultimately the forced sale of the property.”

The judge dealt with the conduct in this way:

“Taking all these (s 7) matters into account, I have come to the conclusion that it would not be just to make an order against the wife that she should pay periodical payments to the husband.”

430.   In Jones (M A) v Jones (W) [1975] 2 WLR 606, shortly after the breakdown of the marriage, the husband had violently attacked the wife leaving her permanently disabled. She was unable to continue work. That conduct was held to be gross and obvious and justified enhancement of the award made to the wife.

431.   An example of relevant conduct occurs in this case, although it has not presented an issue to be resolved.  In §334 above, I have recorded the husband’s agreement that a sum of US$587,754 should be brought back into account, that sum representing payments made by him to or for a mistress during the course of the marriage.  That was a proper concession on his part, and had it not been made the wife would have been entitled to say that his conduct in that respect was relevant conduct.

432.   The specific conduct relied upon by the wife in the present case is the ultimatum.  Mr Pointer sought to answer the matter by drawing my attention to various passages of the evidence upon which he said that there was a serious issue between the husband and wife as to whether or not they should have children, and that the ultimatum was neither clear-cut nor conduct which is gross and obvious.

433.   I have accepted that the husband had genuine reasons for not wishing to have children.  I accept that for a long period of time he resisted having children.  But to use his own words, he capitulated.  He agreed to have children, (see the analysis at§§457‑462 below).  Thereafter the matter was simply clear-cut.  He gave his wife an ultimatum; she must abort the child or the marriage would end.  When she refused to terminate the pregnancy he ended the marriage. 

434.   I am satisfied that any right thinking person would find such conduct to be obvious and gross.  The real issue in this case is whether it would be inequitable not to take that conduct into account. 

435.   In K v K, the wife was in a much better financial position than the husband, and she would ordinarily have been required to make periodic payments to the husband for his support. The husband’s conduct was found to relieve the wife from that burden.  The conduct was therefore directly related to the financial conclusion, and it would have been inequitable to disregard it.  In Jones, the conduct of the husband resulted in the wife being disabled, thereby requiring greater financial support than equal sharing would have given.  The husband’s conduct was relied upon to increase the entitlement of the wife to give her the support she required.  Again, the conduct was directly related to the financial conclusion, and it would have been inequitable to disregard it.

436.   The act of the husband in making a gift and purchases for his mistress, during the marriage, in the sum of over US$500,000, albeit a small sum in the context of these proceedings, but to most people a very substantial sum, had an impact on the available property division between the parties.  His conduct was gross and obvious.  It would have been inequitable to disregard it, and not to claw back that sum. Sensibly, the husband did not make an issue of the point.  But again, the conduct can be seen to be directly related to the financial conclusion.

437.   I am satisfied that the conduct of the husband in presenting the ultimatum to the wife, and ending the marriage when she did not accept his demand, was gross and obvious.  It is conduct which would offend the sensibilities of any right thinking person, even one who was not opposed to abortion as a concept.  However, the ultimatum had no impact at all on the financial position of the parties.  It is right that as a result of the breakdown of the marriage the wife suffers financially in the sense that she loses the financial support of an extremely wealthy marriage. But that is a matter which is dealt with by the division of property between the parties.  The making of the ultimatum did not reduce the funds available to the husband, against which the wife’s entitlement might be measured, or from which he might satisfy any order made by the court.

438.   I am not persuaded that the conduct of the husband in issuing the ultimatum to the wife was conduct which it would be inequitable to disregard.  It is not inequitable to disregard that conduct because it has had no impact on the property available for division. It is not inequitable to disregard it because the wife’s financial position will be properly dealt with by the ancillary relief award, notwithstanding the conduct on the part of the husband.

439.   I do not understand the ability of the court to take conduct into account to invest the court with a power to, in effect, award damages to the recipient of conduct which has had no financial consequence.  Mr Howard said the case was one of equal sharing, but said that because of the husband’s conduct the award to the wife should be 55%.  In simple terms he was seeking an extra 5% to punish the husband for issuing the ultimatum to the wife. 

440.   I am not aware of any case in which an award of ancillary relief has been increased simply to punish a party for s 7 conduct.  For example, I am not aware of any case in which it has been suggested that the mere commission of adultery, resulting in the breakdown of a marriage, should even constitute conduct under s 7.  Indeed, the right to damages for adultery has long been abolished.  Yet many people would find the concept of adultery to be gross and obvious conduct, and conduct which would be inequitable to disregard.  Notwithstanding that, it is not usual to increase an ancillary relief award for such conduct. 

441.   Repugnant though I find the husband’s conduct to be in issuing the ultimatum, I have concluded that it is not relevant conduct for the purposes of the s 7 analysis I am undertaking.  I accordingly decline to enhance the award for the husband’s conduct.

The s 7(1)(b)-(e) factors:

442.   The consideration of needs, (s 7(1)(b)), in the sense that needs are considered here, does not arise in this case.  Although the wife has the obligation of the care of the child, an appropriate sum will be provided for the care of the child, and it will not be necessary for the wife to go back to work either before or after the child finishes school. 

443.   It was suggested by Mr Pointer that the wife should go back to work as a solicitor once the child ceases full-time education.  I reject the submission.  I accept Mr Howard’s submission that if the marriage had continued she would not have been expected to work other than to contribute to the business, and thereby reaped further rewards from that business, which rewards are now denied to her.  There is no reason at all, in the circumstances of this case, why she should be expected to return to work.

444.   No issue arises in respect of the wife’s parents.

445.   I have considered separately the standard of living prior to the breakdown of the marriage: s 7(1)(c), see §§357-372 above.

446.   Both husband and wife are now aged 37.  I have determined the duration of the marriage at eight years: s 7(1)(d), see §§448-469 below.

447.   Neither of the parties have any physical or mental disability: s 7(1)(e).

The duration of the marriage:

448.   By s 7(1)(d), the duration of the marriage is a factor to which the court must have regard in deciding to make ancillary relief orders.  In appropriate circumstances a period of premarital cohabitation may be taken into account in the exercise of the court’s discretion under s 7.  The appropriate circumstances are described in this way by the Court of Final Appeal in WLK v TMC (2010) 13 HKCFAR 618 at §§104-105:

“104. The courts have therefore readily accepted that (the powers of the court to make fair financial arrangements on or after divorce), purposively construed, may be applied to a relationship of cohabitation that amounts to an anticipatory extension of the marriage which has been subsequently dissolved. They have not hesitated to regard as relevant relationships of cohabitation which span a significant period during which the parties have produced children, shared the equivalent of a matrimonial home, mingled their finances, and so forth. Such a relationship does often seamlessly move into the state of marriage, dissolution of which activates the powers being exercised.

105.   There may be highly exceptional cases (such as where parties are unable to cohabit - because, for instance, they have high-powered jobs in different countries - but have children and otherwise generally conduct themselves as if they are married) where the absence of physical cohabitation may not stand in the way of treating them as in a de facto marital state.  However, in the absence of such special circumstances, I can see no basis for construing the statutory powers and discretions to extend to relationships which do not involve cohabitation of the kind described above, however emotionally intense those relationships might be.”

449.   In the present case the wife sought to contend that a period of cohabitation between the parties that began in 1998, in a rented house in Ascot Berkshire, England and, she says, continued in other residences, until the time of the marriage should be taken into account.

450.   The husband contends that while there were occasions when they were living in the same household together, they were not living together as man and wife, and that any period of cohabitation was continually being broken, in particular, by his trips to Japan.  He says further that when they came to Hong Kong after their engagement, in order to avoid offending local sensibilities, the wife lived with her parents until the marriage.  That period alone, he says, broke any period of earlier cohabitation so that it cannot be said that the relationship has moved seamlessly from cohabitation to marriage.  The wife accepted that reason for not living together in Hong Kong in the few months before the marriage.

451.   I accept the evidence of the wife that the husband and wife began cohabiting as man and wife in July 1998. The husband said so in the following terms in a fax[14] to his father on 8 April 1999, nearly a year before their marriage:

“Matrimonial Homes:

1. In HK, House 8, 74 Mt. Kellet Road, The Peak, rental home from May 99, company let (to be decided), as executive accommodation.

2. In Tokyo, a rental home, let by Veloqx City Investment Ltd, start from May 99. As executive accommodation.

3. In London, a rental home in Ascot, let by Langham Estate Management Ltd on behalf of their client Interstitial Holding Ltd.  Started from July 1998.  Executive accommodation.  Both of us had been living there since commencement date.”

452.   It is not in dispute that in September 1998, the wife moved to Hong Kong where she took a position with her father’s law firm.  That was not a full-time position in the usual sense, as the husband now claims.  In fact, in order to assist her father, whose business was struggling in the Asian financial crisis following 1997, the husband proposed that work done for his business interests by the wife would be billed through the law firm.  This was an exercise principally to assist the wife’s father.  In this way the husband could make a realistic and sensible contribution to assist the wife’s family, without having to make outright gifts to them.  Sensibilities on all sides were protected.

453.   The wife accepted that when she returned to Hong Kong to work in this way, she lived principally with her parents, although I accept her evidence that she spent time with the husband in Tokyo, when he was there.  She accepted in cross-examination that after their engagement in April 1999, there were cultural pressures against her living on a full-time basis with the husband prior to their marriage. 

454.   Had that circumstance not existed there would have been a strong argument that this was one of those exceptional cases where, because of the husband’s occupation, with the international travel it involved, a lack of continued physical cohabitation might not stand in the way of the court finding that the relationship has moved seamlessly from cohabitation to marriage.

455.   But I accept Mr Pointer’s submission that the evidence establishes that during the period of their engagement, because of the cultural pressures, the husband and wife did not consider that they could then live together full-time.  The consequence of that decision was that the period of cohabitation was broken.  If they themselves did not consider that they could live together as man and wife, then I cannot find that they were cohabiting as man and wife.  The cohabitation that had taken place previously in England, Tokyo and Hong Kong was broken, and did not then move seamlessly into marriage, notwithstanding regular trips by the wife to be with the husband in Japan.

456.   I accordingly conclude that the period of cohabitation prior to the marriage cannot be taken into account.

457.   In some cases the date of the end of a relationship of marriage will be quite clear.  If, for example, one party to a marriage learns of infidelity on the part of the other, and packs a bag and leaves the matrimonial home never to return, the date will be plain. But in many cases the date will not be so starkly clear.  This will occur when unhappy differences have arisen between a couple and they struggle for a time, trying to overcome those differences and maintain the relationship.

458.   Prior to the conception of the child there had been discussions between the husband and wife about a child.  For the reasons I have set out in §4 above, the husband was unwilling to have children.  Although the wife wanted children she appears to have reluctantly accepted the husband’s position, but with a view to trying to persuade him to change his mind.  They used, as a method of birth control, a system which is normally used to inform couples of the time when conception might take place, with a view to achieving conception.  The husband and wife used this method to inform themselves when they should avoid a sexual relationship.

459.   Acting together, but with different motives, the wife in the hope that the husband would change his mind, and the husband believing it would pacify the wife, they consulted a California expert on the preservation of human eggs.  Although there was a consultation, nothing came of it.

460.   The case for the husband was that in April 2007, the differences between them over the question of whether or not to have a child reached the stage where they decided to spend time apart.  He said that they then entered into a period of trial separation.  I am quite satisfied that there was no such trial separation.  They were apart, but that was because of the husband’s business commitments and not because of a trial separation. 

461.   It is right that in April 2007, there were arguments between them.  These are evidenced by exchanges of e-mails.  But they were nothing more than the bumps in the road of life that are normally encountered by a husband and wife.  I am satisfied that the subsequent conception of a child was not an event that occurred in the course of an attempted reconciliation following a trial separation.  The event was part of a reconciliation, but only in the sense of making up after an argument.

462.   In his evidence before me the husband denied agreeing that a child should be conceived.  He went so far as to say, for the first time, that the wife tricked him into the conception.  I reject that evidence.  His true position was that contained in his witness statement dated 11 September 2011[15], where he said, after describing his position in relation to children:

“…on 7 May (2007) when I eventually capitulated and shortly afterwards, around the same week, she became pregnant.” (My emphasis).

In the context in which the expression “capitulated” was used, it could only refer to the husband abandoning his position of refusal to have children and agreeing to the conception of a child.

463.   Notwithstanding that agreement, when the fact of conception became known, the husband presented the wife with the ultimatum that she must have an abortion or the relationship would have to end.  The ultimatum was source of great disharmony between them and the husband began to spend more time in Japan. 

464.   But they did not cease cohabitation.  From time to time the husband came back to the wife.  On 23 August 2007, the husband completed the purchase of the Belvedere property.  The husband and wife were in California together to see the property when the purchase was completed, and the wife and her mother took steps, when there, to purchase bedding and the like to use in the property.  There is no sensible reason why, if the marriage had ended at that time, the wife and her mother would go to California to see the property. 

465.   Although the relationship between the husband and wife at this time was undoubtedly strained, it is clear that the marriage was still in existence.  The wife was endeavouring to persuade the husband to accept the child.  From the e-mails that were exchanged between them the husband appears at that time to be ambivalent to the situation, finding himself in self-doubt and anguish.  It is right however that he comes back most of the time to the ultimatum that he had imposed upon the wife.  At one stage the wife broached the question of divorce but the husband did not take up that suggestion, and the wife still hoped for the withdrawal of the ultimatum and the continuation of the marriage.

466.   The whole of the circumstances of the trip to see the California property by the husband, wife and her mother is entirely irreconcilable with the husband’s assertion that the marriage had ended.  If it had ended he would not have allowed her to go there, and particularly he would not have allowed the mother to accompany the wife.

467.   Shortly prior to January 2008, the wife learned that during his absences from her, the husband had committed adultery.  On 13 January 2008, the wife sent an e-mail[16] to the husband with the subject line “Goodbye”.  In that e-mail she said:

“I cannot think of a single reason why we should stay together since you have been dating other women behind my back. It is clear that you do not cherish me and you do not like, let alone love (the daughter). I await the divorce papers from your lawyer. Let me know the procedures for transferring signatories for Citic and associated companies back to your nominees and (Singapore) directorships back to your nominees. Let me know where to send all your papers. I have some CVs from my London advert - I will e-mail them to you and PM for him to interview them for you.

I will try to help with smooth handover, but clearly with the pregnancy and my current state of mind, it will not be easy.”

The reference to the “CVs” is a reference to steps they were taking to employ a person to take over the work that the wife had been doing for the husband, work that she would not be able to do with a mother’s obligations to a child.

468.   Following that e-mail there was no further period of cohabitation, or even any physical relationship between the husband and wife.  I am satisfied that the clear statement by the wife on 13 January 2008, asserting that they should not stay together, and that she awaited divorce papers, constituted the end of the marriage. 

469.   The marriage is accordingly one of eight years duration.

Contributions made to the welfare of the family:

470.   Mr Pointer sought to put the contribution of the wife into context by emphasising the importance of the circumstances in which the original gift from the father, and the subsequent payments made by the father to the husband supported, first the establishment of the business and subsequently, its expansion.  There is no doubt that there has been a very appreciable matrimonial acquest in this case.  But that is not to say that the contribution of the wife is non-existent.

471.   She took a fully active role in the business, plainly devoting the whole of her time to her husband and the business until she became pregnant.  Until 7 November 2008, she was a director of 15 companies and company secretary for a number of the BVI companies.  She was effectively the in-house legal counsel for the structure. 

472.   It is right, as both Mr Pointer and Mr Todd were at pains to point out, that through her father’s law firm, fee notes were sent for the work done by her, and the firm was paid.  But it is not suggested that these fee notes covered the whole of her time for the whole of the period of the relationship from 1998, until the breakup of the marriage.  Further, the fact that the law firm was paid on the presentation of fee notes is no answer to the wife’s case for contributions.  She was not paid a regular housekeeping allowance or any other allowance.  She was in fact a partner in the business and was entitled to remuneration.

473.   In a series of e-mails between February 2008 and May 2008, the husband expressed his own view of her contribution.  It is significant that these were all sent following the breakdown of the marriage.  They are statements by the husband against his interest and there is no reason why they should not be given full weight as an expression of his true view of her contribution during the marriage.  The following are relevant extracts:

“24 February 2008: ‘You have done more than a perfect to look after me and care for me over the years.’ (sic).

13 March 2008: ‘… for the whole of my life you have been my savour.’ (sic).

6 May 2008: ‘Life without you is like missing half my brain and my limbs and heart! I was so frustrated to have forgotten to bring my Blackberry charger, and separately left my Hermes Leather jacket in the Cabinet in the Grand Canyan. I am loosing my brain…On every level, you are a big part of Veloqx and deserve the glory, but no more hardship.’ (sic).

21 May 2008: ‘I really want to thank you, but I don’t even know how to thank you enough, to be my wife, business partner, best friend, and everything in my life for the whole of my adult years. Without you, I will not have found my focus, my determination, my life, my business success, everything. I would have been a nobody.’ ” (sic)

474.   In a letter to the Singapore tax authorities on 19 August 2011, the husband’s Singapore tax advisers, on his instructions, informed the Singapore tax authorities that between autumn 2005 and 7 November 2008, the wife was one of the key personnel of five companies and that she was one of the decision makers for the business.  If the husband wishes to have the taxation advantages of that proposition he must accept the matrimonial consequences and cannot denigrate her importance in the business.

475.   She was deeply involved in drafting various documents for the business, and was involved in the financing and refinancing of the property business in Japan.  It is right that she may not have taken a direct part in the negotiations with the bank, but she was involved as in-house counsel of the business, including reviewing loan documentation.  She drafted employment contracts and advised on confidentiality agreements to be signed by the staff.  She subsequently gave advice about staff matters including salary reviews.  She assisted the father in his documentation, and provided litigation support when the father was engaged in litigation in Hong Kong.  She had a significant role in business entertaining, and organised the whole of the husband’s personal life.  He was substantially dependent upon her in respect of his personal matters, and had no other personal assistant.

476.   She could not be further removed from the concept of a wife whose contribution is that of caring for the home, her husband, and children.  Not only did she organise the London, Hong Kong and Tokyo homes for her husband, and his life generally, she played a full and active role in the business.

477.   There can be no doubt that the husband has learned significantly from his father and that he is an able and astute real estate investor.  He has taken his father’s initial gift and, no doubt assisted by further payments from his father, has put together a quite spectacular real estate portfolio.  It is right that the father brought US$50 million to the marriage, however in other terms I have no doubt that he and the wife contributed equally. 

478.   The question is whether this is one of those rare and exceptional cases where the contribution of the husband is “special” or “stellar”: see LKW v DD §118.

479.   The signal fact that sets this case apart from others is the contribution made by the father. Notwithstanding the efforts made by the wife to assert that with the friends the husband had, and the financial resources that those friends would have led him to, I accept the submission of both Mr Pointer and Mr Todd that, “without the assistance of the father, the husband would be nothing”.  It is that submission that demonstrates that this is not a case of special contribution.  The entire empire owned by the husband has been totally dependent upon the assistance of the father.

480.   I am not satisfied that this case falls within the class of exceptional circumstances which would justify a finding of special or stellar contribution on the part of the husband.  He is able and astute and has undoubtedly worked hard.  He has been given enormous assistance by his father but, other than the ultimate financial result, it could not be said that the husband has contributed anything particularly special.  He has not brought a new idea into play, the business has been funded from external sources to the marriage, there has been the advantage of a rising market, at least to late 2008, and there has been a special assistance of the father.

481.   Mr Pointer referred me to the following passage from Charman (supra) at §80:

“In such cases can be amount of the wealth alone make the contribution special? Or must the focus always be upon the manner of its generation? In Lambert Thorpe LJ said, at para 52:

‘There may be cases where the product alone justifies a conclusion of a special contribution but absent some exceptional and individual quality in the generator of the fortune a case for special contribution must be hard to establish.’

In such cases therefore, the court will no doubt have regard to the amount of the wealth; and in some cases, perhaps including the present, its amount will be so extraordinary as to make it easy for the party who generated it to claim an exceptional and individual quality which deserves special treatment.”

482.   The amount of money involved in this case arguably brings this case within the category referred to by the Court of Appeal in Charman.  Each case must be examined on its own individual facts.  It is right that in this case a very substantial amount of wealth has been created.  But when proper regard is had to the contribution of the wife and the extent of the assistance provided by the father, I have come to the conclusion that the amount of wealth generated is not such as to entitle the husband to claim a special contribution.

483.   I reject the submission that this is a case of special or stellar contribution on the part of the husband.

484.   This is not a case where the husband can claim a special contribution by virtue of the amount of wealth alone.  But the father can point, not only to the initial gift, but to the very extensive assistance that he has given to the business ventures of the husband and wife and say that his contribution falls within a very special category.

Compensation:

485.   The concept of compensation, was explained by Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618, as compensation for relationship-generated disadvantage, citing a woman who gives up what would probably have been a lucrative and successful career, and ought to thereby be compensated.  In the present case the wife seeks this type of compensation.

486.   As Ribeiro PJ pointed out in LKW v DD, at §§126-130, such compensation is already intrinsically factored in as part of the sharing principle.  He said at §130:

“(The extent of the compensation….is)….a fact-specific question depending on the nature, certainty, permanence and other qualities of the disadvantage incurred, viewed in a broad brush way.”

487.   The wife says that had she not embarked on the marriage she would have continued her career as a solicitor and would likely be a high earning partner in a city law firm either in London or Hong Kong.  Although the giving up of professional career was considered a “paradigm case for compensation” by Lord Nicholls in Miller/McFarlane[17], that was the case where the capital was insufficient to permit an immediate clean break.  The compensation element was addressed in the form of periodical payments by the husband.  In the present case there is plainly more than adequate capital to enable the court to make a clean break order.  In those circumstances any form of compensation necessarily imports an element of double counting.

488.   I conclude that this is not a case in which it is appropriate to apply the compensation principle.

Analysis of the evidence and submissions:

489.   I have already said that the signal fact that sets this case apart is the contribution that has been made by the father by way of the gifts and soft loans to the husband, enabling him to amass, in a relatively short period of 12 years, a quite spectacular property portfolio and other significant assets. 

490.   It is necessary to recognise the rights the father has in the Framework Agreement.  They are, as I described in argument, and as Mr Howard was content to adopt, amorphous rights.  They are not yet exercised, and so do not yet have any impact on the property, but are a future contingent right to which I must have regard.  I do not propose to allocate a particular discount percentage to those rights, just as I do not allocate a particular discount percentage to the contribution made by the father before and during the marriage.

491.   In my view it is sufficient to simply recognise the existence of the father’s rights, and reflect them as part of the overall percentage, on the husband’s side of the balance sheet, in the application of the sharing principle.

492.   The second significant factor in this case is the length of the marriage.  The marriage cannot be said to be short marriage.  But neither can it be said to be a long marriage, where, all other things being equal, it would offend against the yardstick of equal sharing to order other than equal sharing.  The marriage is not of a sufficient duration that demands equal sharing. 

493.   It must be accepted that the husband brought a significant capital contribution to the start of the marriage.  But that contribution aside, the fact that the husband and wife have, each in their own different ways, contributed equally to the marriage partnership, all other things being equal, the assets are such that surplus assets would normally be distributed between the husband and wife.

494.   I premise both statements in the previous two paragraphs on the assumption of “all other things being equal”.  They are not equal.  It is here that the weight of the father’s very significant contribution, and his rights under the Framework Agreement, comes into play.  It is an enormous factor and in my view sufficient to depart from equal sharing.

495.   While the father’s assistance, and the existence of his not yet exercised rights, are factors which make it sufficient to depart from equal sharing, proper weight must be given to the fact that the contribution made by the wife to this marriage partnership over its eight year duration was, setting aside the introduction of his capital, equal to that of the husband. 

496.   Weighing all of the relevant matters into account I have concluded that that this is an appropriate case for the application of the sharing principle.  The application of that principle is appropriately met in this case by allocating to the wife a sum equivalent to the extent of 20% of the net value of the assets of the husband and wife.

The result:

497.   The total assets available for division between the parties are HK$6,505 million, of which 20% is HK$1,301 million. That sum exceeds the wife’s needs assessed on a generous basis. 

498.   Accordingly I award the wife sum of $1,301 million in satisfaction of her claim for ancillary relief.  The wife must give credit for her own assets of $79 million, leaving a balance payable by the husband of HK$1,222 million.

Satisfying the award:

499.   There are a number of ways in which that award might be met by the husband and the father.  The father may wish to continue to assist the husband, and pay the entire sum from his own resources.  The husband may choose to realise property in order to meet the award.  He might take other steps that he might consider appropriate to put him in the required funds. 

500.   The wife sought orders transferring sufficient property to her in order to meet the award.

501.   I am very conscious that there are complicated taxation and corporate issues potentially arising from the transfer of property to the wife, or from the sale of property. 

502.   The parties are to have 90 days from the date upon which this judgment is handed down to agree upon a method by which the wife’s award will be satisfied in full.  If they are unable to agree, leave is reserved to apply to resolve the issue.  If that is necessary, in the first instance there should be a directions hearing with directions being given for the filing of appropriate evidence on the issue.

503.   The father has made it clear that he has the sum of US$26 million (HK$202 million) available to meet the award.  That sum must be paid by the husband forthwith.

504.   If the balance of HK$1,020 million is not paid or satisfactorily settled within 90 days, and the wife is kept out of her money, the outstanding sum will bear interest at judgment rate, from the date of this judgment.

505.   With the need to take into consideration four different currencies, moves in exchange rates may have a significant impact on the effect of the award.  The wife should not be penalised by any adverse move in exchange rates against her, should there be a delay in satisfaction of the award. 

506.   There will be an order nisi that that if the minimum sum of US$26 million is not paid within 90 days, the wife shall have leave to apply to revise the figures awarded by this judgment to take into account prevailing exchange rates.

Costs:

507.   The sum awarded to the wife exceeds that offered to her by the father by way of a Thomas order.  The husband made no offer at all.  There will be an order nisi, to be made absolute on the expiration of 28 days, that the husband and the father must jointly and severally pay the wife’s costs of the proceedings, to be taxed on a party and party basis.

Publication of the judgment:

508.   Pursuant to an order made by me prior to the commencement of hearing, the trial was held in public, save that certain portions of the evidence and submissions were closed to the public in order to protect the husband and father in respect of certain matters of commercial confidentiality.  It follows, the trial having been in public, that the judgment must be published.  I have endeavoured to structure the judgment in a way that it could be published, but I have found it simply impossible to draw the judgment in such a way that there should be no redaction.  

509.   In the supplementary submissions filed following the conclusion of the oral hearing Mr Howard pressed for the entire judgment to be made public but acknowledged that there was a question as to whether certain passages should be “exempted”.  Mr Pointer said that the evidence concerning the business structure and management, property valuations, and tax was heard in private.  I accept that in respect of those matters that were heard in private, it would be proper to redact from public application paragraphs referring to those matters.

510.   I have reviewed the judgment and, on a preliminary basis, consider that the following passages could be redacted prior to publication: §§145-161, “The Framework Agreement”; §§163-174, “The Husband’s right to repay the balance of the gift”; §§175-193, “Has or can the father exercise his rights under the Framework Agreement”; §§194-197, “The Aoyama Project”; §§198-199 “The real issue in respect of the Framework Agreement”; §§200-235, “Would the father exercise his rights against the husband”; §§256-289, “The Japanese property”; and §§336-348, “The taxation issues”.

511.   If the parties cannot agree upon the passages to be redacted within 28 days of handing down the judgment, the judgment will remain private to the parties, and leave is reserved to apply for the court to resolve the issue.

512.   On the handing down of the judgment I will publish immediately, an executive summary in the form attached hereto.

An appreciation:

513.   I have been very greatly assisted in the conduct of this trial with the numerous complex issues that have arisen by the very high quality of the representation of the parties.  I am grateful to the solicitors and counsel for each of the parties for the assistance they have given me in preparation of the evidence and the presentation of the case in court.  The representation has been of the very highest quality.  The clarity of the submissions and the enormous industry that has gone into the presentation of the case, in particular the final submissions, has greatly eased my burden in preparing this judgment.

Finally:

514.   It has been my unpleasant task in this case to make findings, albeit only on the civil standard of proof, of criminal behaviour on the part of both the husband and the father.  That criminal behaviour involves the forgery of the 2006 CLA, and the conspiracy to pervert the course of justice, that resulted in the wholesale disposition of the Japanese business from the husband to the father on D-Day.  It involves also numerous acts of perjury on the part of both the husband and the father in the affidavits that they have filed in these proceedings, and in the fraud proceedings and the conspiracy counterclaim.

515.   It is my duty in the circumstances to direct the Registrar of the High Court to forward a copy of this judgment to the Director of Public prosecutions in Hong Kong for such action as he may think appropriate.