CHUNG KAM LING v. CHUNG WU NI SHANG

IN THE COURT OF APPEAL

1993, No. 75
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. On the 5th October we dismissed this appeal and said we would give reasons in writing. This we now do.

The History of the Proceedings

2. This was an appeal from a decision of Judge Surman in the divorce jurisdiction of the District Court. By a petition dated the 27th July 1992 Chung Kam Ling (the husband) sought dissolution of his marriage to Wu Ni Shang (the wife) on the sole ground that the marriage had irretrievably broken down and the parties had been living apart for more than five years. He sought no other remedy.

3. There are no children of the marriage. The petition was served on the 3rd August 1992 but no acknowledgment of service was filed by the wife until the 13th February 1993. She then asked for ancillary relief and a notice was issued on the 1st February pursuant to Section 17A of the Matrimonial Causes Ordinance asking for her financial position to be considered. By Rule 56B of the Matrimonial Causes Rules the husband was then obliged to file an affidavit of means within 14 days. The wife also sought leave to file an answer to the petition, which was granted. In that answer, which was filed on the 12th March, the wife admitted that the marriage had broken down but denied that the parties had been living apart for 5 years. She asked that the husband's petition be dismissed and again sought ancillary relief.

4. 4 days after the filing of the wife's answer, the husband, who had taken no steps to have the matter set down, applied for his petition to be dismissed. His affidavit in support gave no reason for the application. The summons was set down for hearing on the 7th April.

5. By the 17th March the husband had not filed an affidavit of means and the wife issued a summons seeking an order that he do so. That summons was heard on the 24th March, and an order was made by Judge Surman pursuant to rule 56B that the husband file an affidavit of means, by the 15th April. That is the order which is the subject of this appeal. There was however an error in the summons in that it sought an order that "the Respondent" i.e. the wife, should file an affidavit whereas clearly it should have said "the Petitioner" i.e. the husband. The summons was filed by the wife's solicitors and was directed to the husband who appeared at the hearing represented by solicitors. The error was unfortunately not picked up by any party at the hearing and was reflected in the judges note of proceedings. However the final order was correctly drawn and required that the husband file an affidavit of means.

6. On the 24th March the wife issued a summons asking for leave to amend her answer and to file a cross-petition.

Her solicitor informed the Judge that that was what she was proposing to do. She intended to ask that the marriage be dissolved but on the grounds of the husband's unreasonable behaviour. On the 29th March, that application was adjourned to the 1st April, and was then stayed pending the result of an application by the husband for leave to appeal against the order that he file an affidavit of means. That application was refused on the 15th April. The husband then sought leave from the High Court and that was granted on the 10th May.

7. Meanwhile, on the 1st April, the wife filed her own petition seeking dissolution of the marriage on the grounds of unreasonable behaviour. That was accompanied by an application for ancillary relief. Finally, on the 25th May, the husband filed an affirmation of means in those proceedings.

The Judge's Jurisdiction

8. The judge's power to make the order of the 24th March was challenged by Miss H.C. Wong who appeared here for the husband. She argued that the judge was prevented by the terms of the summons from ordering the husband to file an affidavit of means. The only way in which the judge could have made the order he did, says Miss Wong, was if he had given leave, pursuant to Ord. 32 r. 2(2) of the Rules of the Supreme Court (applied in the District Court by rule 9(1) of 3 the District Court Civil Procedure (General) Rules) for the summons to have been amended, and he could only have done that if the wife's solicitors had, pursuant to Ord. 32 r.1, issued a summons for leave to amend.

9. That argument is wholly untenable. All that had happened was that whoever was responsible for drafting the summons had temporarily forgotten that the husband was not the Respondent in the proceedings. Whether or not the error had been picked up, no-one was, or could have been, misled into thinking that it was an order for an affidavit of means from the wife which the judge was being asked to make. Accordingly, even if the error had been picked up, it would have been a total waste of time and money for the wife's solicitors to have been required to issue a further summons to correct the wording of the first summons, when that the wife's solicitors were asking for in the summons was obvious.

The Exercise of the Judge's Discretion

10. Miss Wong contends that the judge should not have ordered the husband to file an affidavit of means before the determination of (a) the husband's application to have his petition dismissed, and (b) the wife's proposed application for leave to amend her answer and to file a cross-petition. After all, if the husband's petition was dismissed, and if the wife was not permitted to file a cross-petition, an affidavit of means could not be ordered. Accordingly, it is said that by ordering the husband to file an affidavit of means, the judge was assuming that the husband would not be permitted to withdraw his petition or that the wife would be permitted to cross-petition him, and that he was therefore pre-judging those applications.

11. We do not accept this argument. The judge was entitled to take the view that it was unlikely that there would be no petition before the court. After all, both parties accepted that the marriage had irretrievably broken down, even if they alleged that it had broken down for different reasons. Moreover, the judge was entitled to assume that the husband's application for his petition to be dismissed and the wife's proposed application for leave to amend her answer and file a cross-petition would have been determined before the 15th April, thereby enabling the husband to apply for the discharge of the order of the 24th March if there was no petition before the court by then.

The Academic Nature of the Appeal

12. Even if we had been persuaded that the judge had erred in the exercise of his discretion, we would still have dismissed this appeal. Once the husband had filed an affirmation of means (as he did on the 25th May, albeit in the proceedings brought by the wife), his appeal became completely academic. If the purpose of the exercise had been to prevent the wife discovering the husband's assets and income, it was wholly frustrated when his affirmation of means disclosed them.

Costs

13. If the appeal had been dismissed solely because the husband's affirmation of means of the 25th May had made the appeal academic, we might have been inclined to order the wife to pay the husband's costs of the appeal up to, say, 14 days after the date of the affirmation. But since the appeal has to be dismissed on its merits - the judge having had jurisdiction to make the order and having exercised his discretion in a manner which cannot be characterised as perverse - we see no reason why the costs of the appeal should not follow the event.