C v. C AND ANOTHER

CACV 272/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2002

(ON APPEAL FROM FCMC 4882 OF 1992)

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J U D G M E N T

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Hon. Cheung JA:

1. I agree with the judgment of Ma JA.

Hon. Yeung JA:

2. I have the advantage of reading the draft judgment of Ma JA. I agree with his judgment. I too would make an order in terms of paragraphs 54 and 55 hereof.

Hon Ma JA:

Introduction

3. The present appeal arises out of various orders made by Deputy Judge Casewell on 7 December 2001 in matrimonial proceedings. The orders related to ancillary relief and a Judgment Summons made pursuant to Rule 87 of the Matrimonial Causes Rules Cap. 179 ("the MCR") that had been taken out by one of the parties.

4. Before I deal with the learned judge's orders in detail and the issues that arise in this appeal, it is necessary first to set out the relevant background facts and the procedural history of this case, and then to deal with the hearing before the learned judge. As will presently be seen, this appeal involves largely procedural aspects.

Background facts

5. The following facts are derived from the reasoned judgment of the learned judge delivered on 7 December 2001. The relevant protagonists in this appeal are the Petitioner wife and the 1st Respondent husband, whom I shall refer to simply as the Petitioner and the Respondent.

6. Having undergone a Chinese customary marriage on 1 December 1979, the Petitioner and the Respondent were married at the Western Registry on 4 February 1981. Two sons were born, on 24 January 1981 and 17 January 1989.

7. The marriage broke down. I will later deal with the relevant procedural history in the present proceedings.

8. The Petitioner and the Respondent were both immigrants to Hong Kong. The Respondent first came to Hong Kong in 1975 as an illegal immigrant from Taiwan (his status was later regularised). The Petitioner arrived in Hong Kong in 1976 to help out her mother who was then running a sole agency in foodstuffs.

9. After their marriage, the Petitioner and the Respondent operated a business in the name of Tai Chung Medicine Company ("Tai Chung") together with a Mr Chan Lam ("Chan Lam"). Tai Chung marketed a vitamin pill known as "VIHE" through an entity called Hale Medicine Company ("Hale"). The trademark in VIHE was vested in Tai Chung and remains so registered to this day in the Trademarks Registry. We have been provided with an extract from the Trademarks Registry showing that VIHE is registered in the names of Chan Lam (named there as Chan Ling but he is the same person), the Petitioner and the Respondent.

10. Apart from Tai Chung and Hale, there was another business operated by the Petitioner and the Respondent, namely Po Toh Guesthouse. This business involved running a hostel for Taiwan tourists who would be encouraged to make purchases at Tai Chung's outlets.

11. In 1984, Po Toh Department Store Limited ("Po Toh Department Store") was set up to take over the business run by Tai Chung, Hale and Po Toh Guesthouse. At first, 80% of the shares were in the name of the Respondent, 10% in the Petitioner and the other 10% in one Mr Chan Ying Ko (who was the Respondent's relative). These three persons were also the first directors of the company. In 1987, the issued share capital of the company was increased by 200,000. The shares were at first held in the name of Chan Kam Fong (Chan Lam's daughter) but in 1988 they were transferred to Chan Yu Chung (the Respondent's niece who was at that time working as a sales girl). In 1992, the Petitioner was removed as a director of Po Toh Department Store, although she remained a shareholder.

12. At about the time of the Petitioner's removal as a director of Po Toh Department Store, another company was set up, Po Toh Sunlight Jewellery Limited ("Po Toh Sunlight") to take over the business of Po Toh Department Store. It would appear that Po Toh Sunlight still trades today.

13. In 1987, a matrimonial home was purchased, this being Flat C, 16th floor, Choi Tien Mansion, Horizon Gardens, 11 Taikoo Wan Road, Tai Koo Shing, Hong Kong ("the matrimonial home"). The home was purchased in the name of a company called Apex Scheme Limited ("Apex Scheme") for $928,000.00. The initial shareholders of Apex Scheme when it was set up in 1985 were the Petitioner and the Respondent (one share each). Later in 1987, a further 799,999 shares were issued and these were put in the name of Chan Yu Chung and the Respondent's share was transferred to the name of his mother (later retransferred to the Respondent when she died).

14. Two other properties were also purchased in 1987 in the name of the Respondent's mother. Another flat was purchased in 1995 in the name of a company (Grand Gay Trading Limited) whose shareholders comprised the Respondent and his co-habitee, A (who is the 2nd Respondent in the present proceedings but who was not involved in the hearing below or in this appeal).

15. As I have mentioned above, the marriage broke down. The Petition for divorce was filed on 4 August 1992.

The present proceedings

16. In the Petition (which was amended on 17 June 1998), the Petitioner claimed ancillary relief and maintenance. In terms of the transfer of properties, the Petitioner sought orders for the transfer of the matrimonial home as well as the two properties purchased in the name of the Respondent's mother. It is to be observed that no order was sought in relation to the VIHE trademark. The application for ancillary relief in the Petition was made pursuant to Rule 68 of the MCR.

17. On 29 September 1992, pursuant to Rule 73 of the MCR, the Petitioner filed what is known as a Form 9 Notice which indicated the Petitioner's intention to proceed with her application for ancillary relief. This was listed before His Honour Judge Pang. This Notice also sought an order for maintenance pending suit.

18. On the same day, Judge Pang made an order that the Respondent pay maintenance pending suit of $20,000 a month. He also gave directions as to the ancillary relief application by ordering the Respondent to file an affidavit of means. He was legally represented at this hearing. This order followed an order of Deputy Judge Au Yeung made on 17 September 1998 to the effect that the Respondent was required to file an affidavit of means.

19. On 8 June 1993, the Respondent took out a summons to vary the order of 17 September 1998 in relation to maintenance pending suit. This came up before Deputy Judge Eccleton on 17 August 1993 but was adjourned sine die. There is another summons dated 18 December 1997 taken out by the Respondent, again for variation of the order for maintenance pending suit. I am not aware why another summons was taken out. This summons was listed before Deputy Judge Leung on 13 January 1998, but it is not apparent in the papers before us what happened then (if anything). In his judgment, Deputy Judge Casewell refers to this application as having been adjourned sine die.

20. On 15 October 1997, the Petitioner took out a Judgment Summons pursuant to Rule 87 of the MCR on the basis of there being arrears of $50,100.00 in the maintenance pending suit that had been ordered by Judge Pang on 29 September 1992. Although the application (as stated on the face of the Summons) was to be heard by Deputy Judge Day on 10 December 1997, it clearly was not and, like the summonses for variation, this application was not heard until the matter was eventually dealt with by Deputy Judge Casewell. In his judgment, he refers to this application as having been adjourned sine die as well.

21. As far as the claims for ancillary relief were concerned, numerous orders were made over the course of 1999 to 2001 directed to this issue. It is unnecessary to set these orders out in detail, but it is clear from them as well as the notices of intention to cross-examine deponents of affidavits (taken out by both the Petitioner and the Respondent) and the notices to produce documents, that the Respondent could not have been under any illusion or misunderstanding that the Petitioner was seeking final orders for ancillary relief against him and that this involved going into his financial affairs. At one stage, the Respondent was even sentenced by Deputy Judge Leung on 12 May 2000 to 4 weeks' imprisonment for failure to produce relevant documents. I emphasise these matters because at least from sometime in 1998, the Respondent ceased to be legally represented and acted in person.

22. Even as late as April 2001, there was a notice to the Respondent requiring him to produce relevant documents. Eventually, the whole matter was heard by Deputy Judge Casewell in May 2001.

23. Before dealing with those proceedings, I should just record the fact that the decree absolute was made on 18 February 2002.

The hearing before Deputy Judge Casewell

24. The hearing before Deputy Judge Casewell commenced on 7 May 2001 for 9 days, ending on 18 October 2001. While the Petitioner was represented by counsel (Mr David Pilbrow who appears before us as well), the Respondent acted in person. Judgment was delivered on 7 December 2001.

25. The learned judge dealt with three matters:-

(1) The Petitioner's claim for ancillary relief (this was an application for financial provision to be determined on a final basis; I will hereinafter refer to such an application simply as an application for ancillary relief).

(2) The Respondent's application (or applications) for variation of the order for maintenance pending suit.

(3) The Petitioner's Judgment Summons.

26. All these matters were dealt with together and in chambers. I will later deal with the importance of this.

27. Both the Petitioner and the Respondent gave evidence at the hearing, as well as other witnesses. It is right to say that the majority of the time spent at this hearing (by far) was over the issue of ancillary relief. The learned judge was distinctly unimpressed by the Respondent's attempts to understate the extent of his financial worth. He was of the view that in all probability the Respondent controlled the various companies I have earlier mentioned. The learned judge found the Respondent to be generally a bad witness, unreliable and untruthful. He said this, "He is a man who is unscrupulous in his desire to present a false picture of his financial position. I found I could place no reliance upon his testimony and I basically disregarded it in its entirety". In contrast, the learned judge found the Petitioner to be a truthful witness and he placed full weight on what she said. For the reasons that follow, it is unnecessary for me to deal in detail with the judge's findings of fact, save only in a few respects.

28. The order made by the judge was as follows:-

"(1) The Respondent to transfer the VIHE trademark to the Petitioner one month from decree absolute.

(2) On the payment of the lump sum referred in paragraph (3) hereinbelow, the Petitioner to transfer her shares in the Po-Toh Department Store Limited to the 1st Respondent.

(3) The 1st Respondent to pay a lump sum of HK$5 million to the Petitioner within six months of decree absolute provided that if Apex Scheme Limited transfers the property at Flat C on 16th Floor of Choi Tien Mansion, Horizon Gardens, No. 11 Taikoo Wan Road, Taikoo Shing, Hong Kong ('the property') to the Petitioner or the shares in Apex Scheme Limited to the Petitioner representing the property, then the sum payable under the lump sum will be reduced by HK$3.67 million.

(4) In respect of the judgment summons the 1st Respondent (Judgment Debtor) is judged to owe a sum of HK$825,000.00 and is in wilful default. IT IS ORDERED that the 1st Respondent (Judgment Debtor) [C] be committed to prison for nine (9) months for contempt of Court. The Order of Commitment be suspended on the condition that the 1st Respondent (Judgment Debtor) pay the Petitioner (Judgment Creditor) through her Solicitors the judgment debt of HKS825,000.00 and costs of the Judgment Summons at HK$30,100.00 in the total sum of HK$855,l00.00 within four months from today, i.e. on or before 6th day of April 2002. A Warrant of arrest be issued against the 1st Respondent (Judgment Debtor) forthwith for him to be arrested and brought before this Court upon the Solicitors for the Petitioner (Judgment Creditor) filing an Affirmation of non-compliance with the terms of suspension.

(5) Should the sum of HK$825,000.00 found due and owing in wilful default under the judgment summons be paid by the 1st Respondent to the Petitioner within 4 months from the date hereof, that would be accounted towards payment of the lump sum.

(6) Costs including all costs reserved be to the Petitioner and to be paid by the 1st Respondent to be taxed if not agreed. The Petitioner's own costs to be taxed in accordance with the Legal Aid Regulations. There be certificate for Counsel.

(7) There be liberty to apply."

29. These are the orders against which the Respondent appeals.

The issues on appeal

30. The Notice of Appeal contains some 15 grounds of appeal. Amongst them are complaints directed against the judge's findings of fact. Before us, Mr Neal Clough (who appears for the Respondent) realistically accepted that he could not really disturb these findings of fact. Rather, his focus in the appeal was exclusively on the procedural aspects. He fairly accepted that subject to his arguments on these aspects, he would not seek to argue that the learned judge was not entitled to make the findings he did.

31. Thus, the Respondent's complaints (and hence the issues in this appeal) can be distilled into the following:-

(1) There was unfairness to the Respondent in that he, as an unrepresented litigant, was not aware of exactly what applications he was facing at the hearing. All this, Mr Clough submitted, emanated from the procedural "nightmare" facing the learned judge, by which he meant the confusion caused by having three matters heard by him for which there had been inadequate or non-existent directions. As a result, the Respondent did not get a fair hearing. (Issue 1: Procedural irregularity giving rise to an unfair hearing)

(2) In particular, the Judgment Summons ought not have been dealt with at the same time as the other summonses. Specific reference was made to three aspects: first, such applications ought to be heard in open court and secondly, such applications are by nature contempt proceedings and as a matter of principle ought to be heard separately; thirdly, the learned judge concluded that a sum of $825,000.00 was due when the Judgment Summons only referred to $50,100.00. In addition, the judge had not adequately or at all, dealt with the variation application. (Issue 2: The Judgment Summons and the variation applications)

(3) The order regarding the VIHE trademark should be set aside in any event, not being a proper order to have been made. (Issue 3: The VIHE trademark)

32. The order sought by the Respondent is a retrial.

33. I now deal with the three Issues in turn.

Issue 1: Procedural irregularity giving rise to an unfair hearing

34. I leave aside for the time being the Judgment Summons and the variation applications (which is dealt with below under Issue 2). Throughout Mr Clough's submissions (particularly his written submissions) there was a constant theme that somehow the Respondent was at a severe and unfair disadvantage and that more important, he had not been given a fair hearing. I appreciate that, ultimately, this was directed mainly at the Judgment Summons, but it was a general submission made in relation to the whole proceedings as well.

35. Yet, from the history of the proceedings outlined above, it can readily be seen that the Respondent could not have been under any illusions whatsoever as to the nature of the hearing before Deputy Judge Casewell, at least to the extent that the question of his financial means was to be investigated for the purposes of determining the application for ancillary relief. Orders had been made by the court as early as Judge Pang's order dated 29 September 1992 (ordering the Respondent to file an affidavit of means) going to this question. Even just before the hearing in May 2001, there was much activity from both the Petitioner and the Respondent.

36. Inasmuch then as any criticism is made against the learned judge on the basis that the Respondent was not aware that the question of ancillary relief was being dealt with in the 9-day hearing before him, I reject this.

37. Initially, Mr Clough relied heavily on the absence of a Form 9 Notice (required under Rule 73 of the MCR) but eventually had to accept that in fact such a Notice had been given (see paragraph 17 above).

38. In his oral submissions, Mr Clough concentrated instead on that part of the judge's order (set out in paragraph 28 above) whereby he ordered the Respondent to pay a lump sum of $5 million to the Respondent unless Apex Scheme transferred the matrimonial home to the Petitioner or the shares in that company were transferred to her. The judge had held in his judgment that essentially the Respondent controlled Apex Scheme. Mr Clough submitted that this was or was akin to a transfer of property order. Accordingly, he continued, it was necessary for this to have been spelt out in the Form 9 Notice (together with a supporting affidavit) and none of these requirements was fulfilled. In addition, the Petitioner should then also have joined Apex Scheme in the proceedings.

39. In my view, what the learned judge ordered cannot be said to have been a transfer of property. It was precisely because there was no application for a transfer of property before him (which would have necessitated the joining of Apex Scheme) that he dealt with the matter in this way.

40. No doubt the form of the order is perhaps an unusual one, but I think the learned judge was perfectly entitled, in the exercise of his judgment, to do this. It was neither an abstract nor unrealistic order to make. FMFT v HKW [2001] HKC 134 was cited to us in relation to the concept of "judicious encouragement" (i.e. the application of pressure by the court on third parties to encourage them to put a maintaining spouse in the position of meeting what the court regards as his or her obligations to the other spouse). I have not found the case helpful in reaching my conclusions here since there was no question of any pressure (or "encouragement") brought to bear on either the Respondent or any third party. At least none such was demonstrated by Mr Clough. I should finally perhaps just add that the argument based on this order was not even originally made a ground of appeal.

41. For the above reasons, apart from the questions raised by Issues 2 and 3, to which I will presently turn, I am firmly of the view that there has been no procedural irregularity giving rise to any form of unfairness to the Respondent and that therefore there is no justification for a new trial to be ordered in the present case in relation to ancillary relief.

Issue 2: The Judgment Summons and the variation applications

42. Here, in my view, the Respondent's complaints have more substance.

43. A Judgment Summons is a means of enforcing orders for payment in matrimonial proceedings against persons said to be in default of their payment obligations (these persons are accordingly referred to as judgment debtors). Rules 86 to 88 in that section of the MCR headed "ENFORCEMENT OF ORDERS" govern this particular procedure.

44. Although Rule 87(1) defines a Judgment Summons as a summons issued under RHC Order 48 rule 1(1) requiring a judgment debtor to appear and be examined as to his means, the summons carries with it a penal sanction, namely the possibility of an order of "commitment" (see Rule 87(5)(c), (6), (7) and (8)). In other words, the court can make an order of imprisonment against the party in default. In this respect, Rule 87 of the MCR resembles the combined effect of RHC Orders 48 and 49B.

45. At once then, although it is true that obviously the question of a judgment debtor's financial means will be relevant and have to be considered at the hearing of a Judgment Summons, the nature of the application is quite different to that, say, of an application for ancillary relief. The proceedings then become a combination of an investigation into a judgment debtor's financial means and the threat of imprisonment being ordered should it transpire that he has been at fault. In this way, the true nature of a hearing of a Judgment Summons is that of contempt proceedings where the court must be satisfied beyond a reasonable doubt before making an order for commitment. This is the same position as in RHC Order 49B:- as to which, see Hong Kong Civil Procedure 2002 Volume 1 at 49B/1B/1 - 49B/1B/2.

46. In the present case, the learned judge heard the Judgment Summons at the same time as the Petitioner's application for ancillary relief. While an appellate court would normally be very hesitant to disturb what may be regarded as an exercise in case management by the court below, in the present case, I am of the view that the learned judge was in error in hearing these two applications together, for the following reasons:-

(1) The nature of the two applications was as I have said above quite different. Not only that, it has to be borne in mind that the focus of both applications also differs. While the object of an application for ancillary relief is to finalise the financial arrangements between spouses, a Judgment Summons looks at the question why a party has failed to make payments previously ordered by the court. In the present case, the learned judge in dealing with the Judgment Summons had to look at the reason why the Respondent had failed to keep up with the payments ordered under the maintenance pending suit order. As a matter of principle, it must be a wholly exceptional case (and I cannot for the time being think of any such case) for an application for contempt to be heard at the same time as an application for ancillary relief (as I have earlier defined it in paragraph 25(1)). Indeed, save for one exception with which I will deal later, it must be wholly exceptional for a committal application to be heard at the same time as any other substantive application. I have been told by Mr Pilbrow that it is a common practice in the District Court in matrimonial proceedings (that is, in the Family Court) for Judgment Summonses to be heard at the same time as applications for ancillary relief (as earlier defined). I confess that whatever the practical convenience of this (and this is doubtful anyway), it is wrong as a matter of principle and practice.

(2) As a matter of procedure, Judgment Summonses, like all other committal proceedings, should be heard in open court. This is the position generally in relation to committal proceedings in matrimonial causes (see Rule 90(1A) of the MCR) and in committal proceedings in the High Court (see RHC Order 52 rule 6). Rule 87 of course does not expressly state whether the hearing of a Judgment Summons should be in chambers or in open court. However, since a Judgment Summons (as defined in Rule 87(1)) equates to a summons under RHC Order 48 rule 1(1) and given that the examination of judgment debtors under Order 48 takes place in open court (see High Court Practice Direction 14.2 Part III paragraph 3(c)), it follows that the hearing of a Judgment Summons should be in open court. Rule 90(1A) supports this. In G v S (2001) 4 HKCFAR 419, it would appear that the hearing of the Judgment Summons in the District Court in that case took place in open court but with counsel unrobed. Quite why this practice of being unrobed was adopted (and it is a common one according to both Mr Clough and Mr Pilbrow) I cannot readily understand. I see no real justification for it. It is more important to note from the judgment of the Court of Final Appeal the oft-repeated proposition that committal orders are penal and should be made only as a last resort:- see the judgment of Nazareth NPJ (with which the other members of the Court agreed) at 427 (paragraph 21).

(3) In the present case, the Judgment Summons was heard in chambers together with the two other applications. It was not heard in open court as it should have been.

(4) Mr Pilbrow submitted that even if he were wrong on what he had hitherto understood to be the practice, any irregularity could be cured by the application of RHC Order 2 rule 1 (the Rules of the High Court apply to matrimonial causes by reason of Rule 3 of the MCR). I am unable to agree. Where, as in the present case, the irregularity is of a fundamental nature and involving as well an application which might (and did in the present case) involve an order with drastic consequences (namely imprisonment, albeit suspended), a court would be extremely slow to overlook the irregularity. The irregularity here was of course hearing two different applications (one being a Judgment Summons, the other an application for ancillary relief) together. It was not simply, as Mr Pilbrow argued at one stage, the failure to make the order (as opposed to hearing the whole application) under the Judgment Summons in open court.

47. I mentioned in paragraph 46(1) above that there was an exception to the general principle that Judgment Summonses should not be heard at the same time as other substantive applications. In the present case, it will be recalled that the learned judge had before him an application by the Respondent for variation of the maintenance pending suit order. This application, made under section 11 of the Matrimonial Proceedings and Property Ordinance Cap. 192, would normally be heard in chambers although this is subject to a specific direction otherwise:- see Rule 81(2) of the MCR.

48. In many cases (of which the present case is one) where a Judgment Summons and an application for variation are really both sides of the same coin, it would be convenient and right that they be heard together in open court. Afterall, in Rule 87(5)(a)(ii), it is expressly envisaged that in determining a Judgment Summons, the court may vary a maintenance pending suit order. This was precisely what was done by the District Court in G v S.

49. Accordingly, for the reasons set out in paragraph 46 above, I am of the view that the learned judge ought not to have heard either the Judgment Summons or the Respondent's applications for variation at the same time as the application for ancillary relief. I fully recognise that the judge was anxious to resolve finally and as quickly as possible the disputes between the parties. While this was entirely consistent with the practical approach usually and characteristically adopted by the Family Court, it was not in the circumstances appropriate. Ultimately, the overriding considerations for the court are justice and fairness (especially given the threat of imprisonment) rather than just convenience. The correct approach was to deal with the Judgment Summons and the variation applications after the application for ancillary relief had been heard (if any live issue still remained on those two matters).

50. The order, therefore, to be made in the present appeal on this Issue is to set aside paragraphs (4) and (5) of the order made by the learned Judge. There should be new hearings for the Judgment Summons and the Respondent's application (or applications) for variation, if these still remain relevant.

51. I would just finally add the following points in relation to this Issue:-

(1) I do of course recognise that looked at in isolation, the issues involved in an application for variation of a maintenance pending suit order can to a large extent overlap with those in an application for ancillary relief. If these were the only applications before the court, the former would most likely be subsumed in the latter. This is because in determining the amount of financial provision to be made on a final basis, the court would take into consideration amounts already paid on an interim basis. However, where a Judgment Summons is also involved, this substantially changes the complexion of the matter.

(2) The irregularity that occurred in the present case in relation to the Judgment Summons does not affect my conclusions on Issue 1. I have seen no evidence at all to suggest that the Respondent has been prejudiced in relation to the application for ancillary relief by the irregularity in relation to the Judgment Summons and the variation applications.

(3) My conclusions on the above make it unnecessary to consider the other arguments raised by the Respondent in this appeal on this Issue. However, it must not be assumed that I am in favour of them nor, on the other hand, should it be assumed that were it necessary to determine this aspect, I would have upheld the (suspended) sentence of 9 months imposed by the learned judge. If anything, this appears to be on the excessive side, particularly given the remarks of the Court of Final Appeal in G v S at 427 (paragraph 21).

Issue 3: The VIHE trademark

52. The learned judge ordered the Respondent to transfer the VIHE trademark to the Petitioner 1 month from the decree absolute. In my judgment, he was also in error in so ordering:-

(1) As a matter of form, this was not even an application that had been made in the Petition or the Form 9 Notice or indeed, it would appear, in any formal document. It was made orally during counsel's submissions before the learned judge.

(2) This irregularity was no technical matter either. It will be recalled that the VIHE trademark remains vested in Tai Chung, which is recorded in the Trademarks Registry as still being a partnership in the names of the Petitioner, the Respondent and Chan Lam. Even though Chan Lam died in 1984, it appears that no one informed the Trademarks Registry of this. In the circumstances, the first problem that faced the learned judge here was the question of any residual interest of Chan Lam's estate in the trademark. Tai Chung being a partnership, when Chan Lam died the provisions of sections 35, 44 and 45 of the Partnership Ordinance Cap. 38, became applicable. A consideration of these sections would have involved the court investigating the question whether Tai Chung was dissolved as a partnership and in any event an investigation of any interest that Chan Lam's estate might have in the trademark. Such investigations were not carried out.

(3) The second problem facing the judge was that an order simply for the Respondent to transfer the VIHE trademark made no sense when it was not he who held the proprietary rights in the trademark in the first place. As stated above, it was registered in the name of Tai Chung which was a partnership comprising the Petitioner, the Respondent and Chan Lam. Mr Pilbrow submitted that the judge must have intended therefore to make an order that the Respondent transfer his interest in the partnership to the Petitioner. Quite apart from whether the court would have the jurisdiction to do this, the learned judge was not presented with any facts as to what other assets (or liabilities) that partnership had. Further, as stated above, he would also have had to consider the position of Chan Lam's estate. He was therefore in no position to make any order relating to the partnership at all.

53. Accordingly, paragraph (1) of the order should be set aside.

Order

54. For the above reasons, I would partially allow the appeal and order as follows:

(1) Appeal allowed in part.

(2) Paragraphs (1), (4) and (5) of the order of Deputy Judge Casewell dated 7 December 2001 be set aside.

(3) There be a new hearing of the Judgment Summons and the Respondent's application(s) for variation, before the same judge.

(4) All other orders made in the said order dated 7 December 2001 to remain.

55. As for costs, I would make an order nisi as follows. The order for costs below should remain undisturbed since the hearing before Deputy Judge Casewell was necessary anyway and in fact that hearing largely dealt with the application for ancillary relief. The Petitioner could therefore be regarded as the successful party in those proceedings. As for the costs of this appeal, the order should be that there be no order as to costs, with the Petitioner's own costs to be taxed in accordance with the Legal Aid Regulations. It seems to me that both sides have to an extent won and lost in this appeal.