TSC v. LYK

FCMC 2359 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2359 OF 2013

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DECISION

(Maintenance pending suit: wife and children)

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1. This is an application of the petitioner (“wife”) by way of her summons filed on 6 August 2013 for maintenance pending suit (“MPS”) for herself and the 3 children of the family, to be backdated to May 2013. The initial sum sought by her is $636,450 per month, which is increased by $16,000 to $652,450 per month in her subsequent affirmation[1]. The respondent (“husband”) opposes to her application.

2. The wife has not sought any litigation funding from the husband in this application.

Brief Background

3. In an earlier decision handed down by this court on 6 September 2013 relating to the wife’s application for inspection of underlying accounts documents of the family companies, I have set out the background of the parties and the web of family companies owned/run by them (see §§7-8, 12-22 of the decision).

4. For the purpose of this MPS application, I would briefly repeat their background as follows.

5. The husband is now 55. The wife is now 40. They got married in March 2003 and have 3 children (2 daughters and 1 son) born in their wedlock, now aged 10, 9 and 7 respectively.

6. The parties own a web of family companies whose businesses are mainly provision of logistic services in China and Hong Kong. Through their joint efforts over the years, businesses of the family companies developed fast and they were able to acquire substantial assets. According to the husband’s valuation, the current total assets amount to some $230 million. 

7. However, divergence between the parties grew since 2009. On 17 February 2012, the husband moved out of the matrimonial home, and the parties separated since then. At the same time, the wife stopped further involvement in the businesses of the family companies.

8. In October 2012, the wife filed a petition to divorce the husband[2]. On 14 January 2013, this court ordered by consent that joint custody of the children be granted, with sole care and control to the wife and reasonable access to the husband.

9. It is a common ground that before the separation, the personal expenses of the wife and the children, household and car expenses were either settled by the family companies, by cash from the husband or by the wife’s own income[3].

10. After separation since July 2012, the director’s fees of the wife in the sum of $58,000 were cut. Instead, the husband paid her $150,000 a month. He also caused to settle the 5 loans of UC Ltd in the sum of $350,000 a month.

11. A company solely owned by the wife, UC Ltd is mainly a property holding company that holds 8 properties including the matrimonial home. There are 5 loans under UC Ltd, 2 being mortgage loans of the matrimonial home and Fu Hing Street property (“2 mortgage loans”); the other 3 loans are used to secure the banking facilities to 3 family companies (“3 companies loans”) which are currently under the direct control of the husband. Details of these 5 loans are:

Loans	Monthly repayment
Mortgage loan of matrimonial home	$ 80,000
Mortgage loan of Fu Hing Street property	$ 35,000
Loan for 3 family companies	$235,000
Total:	$350,000

12. It is suggested by the wife that even after separation, the husband has, on top of the said $150,000, continued to arrange for settlement of the utilities and household expenses, eg gardening, of the matrimonial home.[4] Despite the denial of the husband by saying that these payments were paid by mistake made by his staff, it is sufficiently clear that he himself endorsed the payments by signing on the relevant invoices/receipts.[5] His contention is not accepted.

13. Things took a sharp turn in May 2013. The wife withdrew $1.17 million from UC Ltd (being refund of tax payment from the Inland Revenue Department) into her own personal bank account on 16 May 2013. The tax money was said to be funded by one of the major family companies. Not satisfied with the wife’s act, the husband stopped the monthly repayment of the 5 loans of UC Ltd. He also stopped settlement for the utilities and household expenses.

14. The wife withdrew further sums of $177,000 ($27,000 + $150,000) from UC Ltd in July 2013. The total sum she withdrew from UC Ltd is thus $1,347,000.

15. Due to the default of monthly repayment of the 5 loans, the bank called a meeting in June 2013 with the parties and demanded repayment of the loans. However, no positive solution was achieved, as each party accused the other of refusing to inject or return, as the case may be, funds into UC Ltd to satisfy the monthly loan repayments.

16. This caused the bank to issue a formal demand letter in July 2013 to call for full repayment of all 5 loans (over $33 million). In the end, the husband has resumed arranging payment of the 3 companies loans, leaving the 2 mortgage loans to be settled by the wife. Up to October 2013, she has utilized $658,000 out of the said sum of $1,347,000 to cover the 2 mortgage loans of May to October 2013.

Applicable Legal Principles

17. The power for this court to make a maintenance pending suit for a spouse and interim maintenance order for the children of the family is set out in sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance (“MPPO”) respectively.

18. Ms Anita Yip, counsel for the wife, and Mr Robert Pang SC, counsel for the husband, have each helpfully supplied to this court with abundant authorities on the general legal principles in an application for MPS.

19. In my view, the relevant legal principles are succinctly set out by Hartmann JA (as he then was) in HJFG v KCY [2012] 1HKLRD 95 at §§33-38, where His Lordship quoted Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263:

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, whichis synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

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

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

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad brush’ basis.” (my emphasis)

20. The governing principles, if simply put, require the court to balance the reasonable needs of the applicant spouse (and the children where applicable) against the paying spouse’s ability to pay by using a broad brush approach.

The wife’s case

21. According to the wife, the parties enjoyed a very good standard of living during the marriage funded by the husband’s sizeable financial means through the family companies. During the marriage, she received a director’s fee of $58,000 and cash of $100,000 arranged by the husband to be paid out from the family companies to her each month. Besides, the husband paid for the bills when the family dined out and shopped as well as all the holiday expenses. Other household items, eg utilities, management fees, club house expenses, government rates and rent and house maintenance, car expenses and insurances (“other family expenses”), were paid by the husband with funds from the family companies. On the top of that, the husband would cause money to be transferred to UC Ltd to settle the monthly repayment of 5 loans ($350,000).

22. It is her wish to maintain the status quo of living standard pending final resolution of the ancillary relief matters. To do so, she needs:

(1) an interim maintenance of $286,450 per month (excluding the monthly mortgage repayment of the matrimonial home)[6];

(2) $16,000 per month to employ a driver; and

(3) a sum of $350,000 per month for monthly repayment of 5 loans of UC Ltd.

23. For the said sum of $1,347,000 transferred out of UC Ltd into her own bank account, the wife explains that she has already used up $658,000 for settling outstanding loans of UC Ltd. The balance is/will be used for the purchase of a new 7-seater family car in place of the Mercedes Benz Jeep that the husband unilaterally took away on 21 April 2013.

24. The rental income received by UC Ltd (ie $110,570 since August 2013) will soon drop by $2,800.  Further, she has set up a new office and hired a staff to handle the tenancy matters. The set up costs was $100,000 and on-going operation expenses would be $27,650 per month.[7] The rental income is insufficient to cover the 2 mortgage loans.

25. The wife maintains that the husband has overly exaggerated his expenses and that he has the ability to pay the amount of maintenance demanded by her. Not only does he receive director’s fees of $300,000 per month, but he also has the free use of all funds in the bank accounts of the family companies. His assertion that the family companies are facing a change in PRC policy of “green fence” operation (aiming at reducing importation of waste and scrap materials into the PRC), causing a drastic drop in the turnover of the businesses of family companies, is greatly exaggerated.

The husband’s case

26. The husband does not dispute that the following arrangement was in place before the separation:

(1) The wife received a director’s fees of $58,000 per month;

(2) The husband/family companies took care of all the bills of the matrimonial home;

(3) The husband paid for the expenses when the family dined out or shopped in Hong Kong, and all expenses for holidays; and

(4) The husband would cause funds to be remitted each month to UC Ltd to settle the 5 loan repayment of $350,000 per month.

27. However, Mr Pang SC, counsel for the husband, submits that no MPS order should be made by this court at this stage because there are serious disputes as to facts, such as the standard of living before separation. Further, the wife has more than sufficient means to cover her immediate and reasonable needs. Her means include:

(1) a monthly sum of $150,000 paid by the husband to her since separation for her and the children’s maintenance;

(2) an asset of $13 million cash/shares/valuables in her pot;

(3) interest earned on cash savings in the sum about $37,000 per month; and

(4) rental income earned by UC Ltd in the sum of $110,570 per month.

28. The husband also argues that the 5 loan repayments of UC Ltd, being a legal entity separate and distinct from the wife, does not fall within the perimeter of a spouse’s maintenance, and thus this court does not have the jurisdiction to make an order in respect of the loans.

29. On his financial resources, the husband says that he has to constantly remitting funds to the family companies to support their operation and that the PRC policy of “green fence” operation which has caused the businesses of the family companies to nose-dive. For 2012 and 2013 alone, he has transferred no less than $3.8 million to the family companies and paid $5 million to settle payments on behalf of HYH Enterprises Ltd.[8]

No MPS order at this stage?

30. To start with, I have to say, with respect to Mr Pang SC, that I am not persuaded by his argument that no MPS order should be made at this stage solely because there are serious disputes as to facts. It seems to me clear that there bound to be disputes as to facts, one way or the other, in many of the MPS applications. The court can always take a preliminary view or form an overall impression on those factual disputes, upon considering the Form Es and affirmations of the parties and without prejudice to each party’s right to challenge the factual disputes in the final ancillary relief trial.

31. After all, the court is only required to approach a MPS application in a broad brush manner. Any over-provision or under-provision can be adjusted at the final hearing of the ancillary relief (See: F v F (Ancillary Relief: Substantial Assets) [1996] 2 FCR 397).

32. I am also of the view that the wife’s current wealth alone should not be a stumbling block to her MPS application. As rightly pointed out by Ms Yip, the wife has not taken out any application for legal costs contribution. Hence, she should be entitled to keep her current assets and interest income as reserve, in words of Thorpe J (as he then was) in F v F (supra),

“to secure the costs of the litigation or to meet disbursements or to meet costs in part between now and the substantive hearing.”

Standard of living during marriage

33. It is of no dispute that during the marriage, the parties lived in a house of about 3,200 sq feet with a garden of about 4,000 sq feet in Hong Lok Yuen, Tai Po. They enjoyed the service of 1 or 2 domestic helper(s). They owned 4 cars, all of which are of European brands and one of which is worth over $1.4 million (according to the husband’s estimation).

34. However, without any disrespect to the parties, they have only joined the club house of Hong Lok Yuen but not the more renowned and prestigious clubs. Their children study in ordinary primary school(s), but not the more expensive international school(s). Most of the overseas trips taken by them during the marriage were to Asian countries. There is no suggestion that when they went abroad, they took business class flight.

35. Upon considering the Form Es and supporting affidavits filed by the parties for this MPS application, I take the view that this family, despite their great wealth, enjoyed a very comfortable, but not lavish, standard of living during the marriage.

Needs of the wife and the children

36. In essence, the husband is not running a case that due to the wife’s current wealth, he needs not pay any interim financial support for her and the children. Rather, his case is that $150,000 a month (excluding the mortgage loan of the matrimonial home) is more than sufficient to cover their reasonable needs, which according to him, should be $138,216.[9]

37. The issue to be determined is whether $150,000 is sufficient to cover the needs of the wife and the children according to their living standard during marriage.

38. As a starting point, I note that since Mr Pang SC has helpfully trimmed down the disputed items of expenses,[10] the total reasonable needs of the wife and the children would be increased to $156,260 per month. There is a still shortfall of $6,260 per month, if compared with what the husband is now voluntarily paying the wife.

39. It also needs to be noted that the husband did pay for the utilities and other household items, on top of the monthly voluntary financial support of $150,000 a month, to the wife (see §12 above). For half month in May 2013, he endorsed total payment of over $16,000.[11]

40. I shall now turn to the disputed items, bearing in mind their marital living standard.

Household expenses

41. I do not accept the husband’s argument that the household expenses (of 4 persons) should be as little as $4,000 a month, when he claims his (1 person alone) to be $5,000. However, I note that tree maintenance and window cleaning may not be required every month, but, may be say each every 3 - 6 months. On a broad brush approach, I will allow $8,000 under this item.

Car expenses & salary of a driver

42. The items of car expenses and salary to driver are the most disputed items between the parties.

43. The wife alleges that the husband took away the 7-seater Mercedes Benz Jeep used mainly for taking the children out for outings, on 21 April 2013. As a result, she has to buy a new 7-seater family car and thus needs expenses for 2 cars instead of one. She further alleges that during the marriage and even after separation up to October 2013, she enjoyed the service of the company driver, Mr Fu, in picking up the children and sending them lunches at school.

44. The husband, on the other hand, seems to say only 1 car is sufficient. He also claims that Mr Fu is not a driver of the family companies, but is employed by his PRC counterparts. It was just out of goodwill that Mr Fu occasionally assisted the wife to pick up or send lunch boxes to the children when he was not otherwise carrying out the duties of the PRC counterparts.

45. In my view, whether Mr Fu is (or is not) the driver employed by the family companies is irrelevant to this application. What is more important is that even on the wife’s own case, she enlisted the service of Mr Fu on an average of 2 to 3 times a week only during the marriage. The frequency, in my view, does not probably warrant the employment of a full time driver, and thus I am not inclined to allow the driver’s salary in this interim period. However, I will allow the car expenses for 2 cars ($21,000), because the husband has, to a certain extent, acknowledged the use of this new family car of the wife in his affirmation.[12]  

46. However, in passing, I would urge the husband to use his best endeavours to make himself available or to make all possible arrangements of Mr Fu’s assistance if required by the wife. No one would like to see the children’s daily routine, however remote or slight the chance may be, affected.

House maintenance

47. Pest control ($10,700 for 2011/2012) and cleaning of air-conditioners ($5,700 for 2013), though may not be required monthly, needs to be done at least once a year. And the wife has produced receipts to support her claim. I also accept that in each household, there bound to be small scale works such as replacement of water pipes or light bulbs from time to time. On a broad brush approach, I will allow $2,500 per month for house maintenance.

48. Apart from the above, I am not prepared to allow other renovation expenses, such as repaint of the external wall, for the purpose of MPS. I do not regard these other renovation expenses as recurring expenses as such. Besides, the matrimonial home had an extensive renovation just in 2011[13] and the garden was re-decorated just last year.

Clothes/shoes/bags/jewelleries, personal grooming & entertainment

49. The wife claims that during the marriage, the husband bought her luxury handbags each year. On average, a sum of $200,000-$300,000 was spent on buying jewelleries/watches every year and another $200,000 was spent on handbags[14]. She also claims that she needs $10,000 each per month for personal grooming and entertainment.

50. I am inclined to think that the wife may have inflated her claims on these items. A closer look into the husband’s Hang Seng Bank credit card account from January 2011 to February 2012 (the month of separation)[15], which Ms Yip has taken me through during the hearing, shows that during these 14 months, only $33,250 was spent on brand-named handbags[16]. The wife’s Form E does not show that she owns very substantial or very expensive jewelleries and watches. Her Hang Seng Bank credit card statements for the same period show that her average spending was about $15,000 per month only. Even if her Bank of East Asia credit card is to be taken into account, her monthly spending prior to separation would only be increased by no more than $10,000.

51. In broad terms, I will allow $30,000 per month for these items. 

Holiday (wife and children)

52. The wife has prepared a table of all the trips taken by the parties before separation.[17] The table shows that the family went abroad for holidays 4 times a year in 2010 and 2011, but most of them are short-haul trips to Asia. Since the children are still studying, they are not expected to go abroad on long-haul in every school holidays. They may do so during the longer summer holiday. According to the wife, short-haul trips cost about $30,000-$40,000 per trip.[18]

53. It is clear that the husband has tried to tone down the holiday arrangement in his 2^nd affirmation.[19] Besides, it is very unreasonable for the husband to suggest $7,000 per month to cover the wife and the children’s holiday expenses, while he himself alone claims to need $20,000 each month on the same. However, I do take the view that the husband should not be made to cover the holiday expenses of the wife’s extended family in this MPS application.

54. Without further detailed examination, I will say each child needs $5,000 per year and the wife $10,000 per month on holiday expenses.

Contribution to parents

55. It is not the case of the husband that he rejects the wife’s claim on contribution to her parents; he just says that the amount should be $1,500 rather than $10,000 per month. Given the extensive wealth of the parties, it would be against any common sense that the wife would contribute merely $1,500 to her parents each month.  I am prepared to accept this sum in full in the interim period.

Further Study

56. Though the wife stated in her Form E that she intended to commence her master study in September 2013, she has not done so up to now. She has elaborated in her supporting affirmation when she is going to resume the course. As such, this sum will not be allowed in this application.

Summary of expenses

57. For easy reference, I set out below the expenses assessed and allowed by me for the purpose of this MPS application:

General
Utilities	$7,100
Management fees and club house membership	$4,000
Food	$ 20,000
Household expenses	$8,000
Car expenses	$21,000
Insurance premia	$1,000
Domestic helper	$5,000
House maintenance	$2,500
Sub-total:	$68,600

Personal
Meals out of home	$10,000
Transport	$500
Clothing/shoes }
Personal grooming    }	$30,000
Entertainment/presents }
Holiday	$10,000
Medical/dental	$2,000
Tax	$3,000
Insurance premia	$5,000
Contribution to parents	$10,000
Sub-total:	$70,500
Children
Extra tuition fees	$17,400
School books & stationery	$2,500
Medical/dental	$8,000
Extra curricular activities	$12,650
Entertainment/presents	$3,000
Holidays	$15,000
Clothing/shoes	$4,500
Insurance premia	$3,000
Uniform	$900
Others	$900
Sub-total:	$67,850
GRAND TOTAL $68,600+$70,500+$67,850	$206,950 (say $207,000)

The 5 loans & rental income of UC Ltd

58. On the loans of the UC Ltd, Mr Pang SC runs a 2-fold argument like this. He relies on the English case of Prest v Petrodel [2013] 3 WLR 1 to support his contention that this court is not empowered to order the husband to cause to pay loan repayment of UC Ltd to the wife, since UC Ltd is a legal entity separate and distinct from the wife. If, however, this court is not with him on the jurisdictional point, he says that the husband is prepared to give his undertaking to cause to pay for the 3 companies loans until the same are discharged, but maintains that the wife has ample funds available for the regular payment of the 2 mortgage loans.

59. Mr Pang SC has not drawn my attention to any specific paragraphs in the Prest v Petrodel (supra) that the husband would rely on. On a cursory reading of the case, it does not occur to me that it is directly relevant to this application. Its facts are quite different from our case.  Besides, Mr Pang SC has fairly agreed in his oral submission that the matrimonial home should be treated differently, in that even if this court found itself lack of jurisdiction to make a MPS order in respect of the loans of UC Ltd, this court can, nevertheless, order that a certain sum be paid to the wife, for example, as rental expenses of the matrimonial home. More importantly, I think the “jurisdictional” argument does not echo with the husband’s act that he has all along been paying or has caused to pay for the monthly repayment of the 3 companies loans.

60. In the premises, I am not persuaded by Mr Pang SC on his jurisdictional argument.

61. The wife does not deny that at present, UC Ltd earns rental income of about $110,570 per month. She says that she has set up and rented a new office, and employed a staff for running UC Ltd. She needs $27,650 each month as operation expenses.[20] The problem with the wife’s affirmation evidence is that there is no further particular provided, such as when and where the office was set up. There also lacks supporting proof, eg the tenancy agreement or receipts, to substantiate her allegation. I am not prepared to accept the wife’s allegation on the new office expenses in this MPS application.

62. I will accept the husband’s undertaking to cause to pay for the 3 companies loans currently in the total sum of $235,000. I will order him to pay an amount which is equal to the 2 mortgage loans of $115,000 to the wife, but will give credit to the rental income ($110,570) received by the wife through UC Ltd.

63. However, when the rental income of UC Ltd is to be reduced, I expect the husband to make the necessary arrangement to make up for the difference without the wife’s taking out an application to vary the MPS sum.

Husband’s ability to pay

64. On the face of it, the husband receives director’s fees of $300,000 per month. Ms Yip, however, refers me to a schedule of deposits prepared by her[21], which shows that more than $3.9 million (or over $240,000 per month) was transferred from the family companies into the husband’s Hang Seng Bank personal account between January 2012 and April 2013 (about 16 months) under such descriptions as “director’s current account”, “entertainment expenses”, “reimbursement of rental”, “repayment from companies”.[22]

65. By simple calculation, the husband has received more than $540,000 per month over the relevant period, which is more than sufficient to cover the monthly expenses of the wife and the children.

66. On a closer reading of the husband’s 2^nd affirmation, it does not seem to me that the husband is seriously denying that he has free access and free use of the funds of the family company.[23] What he essentially says is that it is unfair for the wife to disregard his contribution from his own personal purse to the operating funds of the family companies. For 2012 and 2013 alone, he has transferred no less than $3.8 million to the family companies and paid $5 million to settle payments on behalf of HYH Enterprises Ltd.[24] The wife has also disregarded the impact of PRC policy of “green fence operation” on the family businesses.

67. In my view, the argument on his remitting funds into the family companies out of his own pocket is a non-pointer to his ability to pay interim maintenance. Quite on the contrary, it shows that he does have financial means to pay the maintenance. I accept Ms Yip’s submission on the policy of “green fence” operation that the policy, which is not a new one but has been in place for over a decade, is directed to curtail illegal import of waste into the PRC. Since the family companies have been established in the trade for many years, I doubt, unless more cogent evidence is shown, if there would be any substantial negative effect on the businesses of the family companies.

68. Looking at the picture from a different prospective, the husband purportedly earned $54,000 prior to October 2012, which was later increased to $300,000 per month. According to his Form E, he needs over $434,000 per month to cover all expenses, including the voluntary maintenance of $150,000 and financial support of $80,000 to his 2 adult daughters (from his 1^st marriage). On this rate, he yet can still make available almost $8.8 million ($3.8m + $5m) to inject into the family companies. He has failed to disclose by affirmation(s) the source of these moneys. I am thus entitled to take a robust view that he is earning more than he claims and that he has the ability to pay the maintenance to be ordered by this court.

69. Last but not least, the wife maintains that the husband has overly exaggerated his expenses to be $203,787 for himself only (excluding (i) rental of unknown amount; (ii) $150,000 currently paid to the wife per month; and (iii) $80,000 monthly expenses for his 2 adult daughters born during his first marriage), but is mean enough to allege that the reasonable expenses of the wife and 3 children (for 4 persons) should be $138,216.  I agree with the wife to some extent. At a glance, I think the husband has at the least overstated his expenses on food including meals out of home ($40,000), entertainment/presents ($15,000), and holidays ($20,000).  However, for the purpose of this MPS application, I do not intend to give a figure on the reasonable expenses of the husband. I do not have to do so because it is my conclusion upon considering all Form Es and affirmations that the husband has sufficient, if not abundant, financial means to pay MPS to the wife.

Back-dating of the order

70. Out of the said $1,347,000 withdrawn by the wife from UC Ltd back in May 2013, she has applied part of it to pay for the monthly loan repayment of the 2 mortgage loans, so that she does not need to utilize her own resources in order to settle the monthly loan repayment of the 2 mortgage loans up to October 2013. Further, she has used (or will use) the balance sum to purchase a new family car, which is a capital asset added to her pot.

71. Under such circumstances, I do not intend to backdate the MPS sums.

Conclusion

72. Due to the matters aforesaid, and more particularly at paragraph 62 above, the total interim maintenance to be ordered for the wife and the 3 children will be $211,430 ($207,000+$115,000-$110,570). I shall round it down to $211,000.

73. On the undertaking of the husband that he will cause or arrange sufficient fund to be paid into the account of UC Ltd for settlement the monthly repayment of the 3 companies loans currently in the total sum of $235,000 until the same are discharged or further directions/orders from this court, I shall make the following order:

(1) the Husband shall pay to the Wife maintenance pending suit for her and the Children in the sum of $211,000 per month from 6 January 2014 and thereafter on the 6^th day of each and every succeeding calendar month until further order of the court;

(2) There be a cost order nisi that costs of and occasional by this application be reserved and be determined at the final ancillary relief proceedings, which will be made absolute within 14 days from the date of this decision unless either party applies to vary the same.

 

 

[1] Wife’s 4^th affirmation [A8/2590]

[2] The first petition filed by the wife was on the fact of “unreasonable behaviour” (FCMC 15140/2012). By the consent of the parties, a fresh petition on “1 year separation” (this suit) was issued.

[3] Hsband’s 2^nd affirmation at §8 [A7/2137]

[4] Wife’s 4^th affirmation at §§71-74 [A8/2610-2612]

[5] Exhibit “TSC4-17” [A8/2678-2707]

[6] Wife’s schedule of current monthly expenses attached to her 3^rd affirmation [A6/2112-2116].  In that schedule and her MPS summons, the mortgage loan of the matrimonial home is included in the monthly expenses. But for easy discussion, I have extracted it out to be considered together with the other 4 loans owed by UC Ltd

[7] Wife’s 4^th affirmation [A8/2617]

[8] Husband’s 2^nd affirmation [A7/2148-2149]

[9] Exhibit “LYK2-2” attached to the husband’s 2^nd affirmation [A7/2165]

[10] pp5-6 of Mr Pang SC’s written submission. For those items with divergence of less than $1,000 between the parties, the husband is prepared to adopt a higher figure

[11] [A8/2612]

[12] Husband’s 3^rd affirmation at §13 [A8/2820]

[13] Invoice dated 2 April 2011 [A8/2643-2644]

[14] Wife’s answer to questionnaire [A5/1341]

[15] [A4/1250-1272]

[16] [A4/1267 & 1269]

[17] Exhibit “TSC4-12” of the wife’s 4^th affirmation [A8/2665]

[18] Wife’s answer to questionnaire [A5/1341]

[19] Husband’s 2^nd affirmation at §15 [A7/2134]

[20] Wife’s 4^th affirmation at §§88-89 [A8/2616-2617]

[21] Annexure 4 of Ms Yip’s written submission

[22] Husband’s answer to the wife’s 2^nd questionnaire [A7/2498-2499]

[23] Husband’s 2^nd affirmation at §§48 & 54 [A7/2148 & 2152]

[24] Husband’s 2^nd affirmation [A7/2148-2149]