LYMC v. LCW

FCMC 13526 /2015

[2019] HKFC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 13526 OF 2015

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Decision
(Leave to Appeal Out of Time)

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1.  This is the Respondent’s application pursuant to Summons dated 11 February 2019 for leave to appeal out of time against the Order dated 20 December 2018.

Applicable Legal Principles

2.  Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

3.  The court has discretion to grant leave to appeal out of time. The factors for consideration are: the length of delay; the reason(s) for delay; prospect of success of the intended appeal application; and whether the grant of leave to appeal out of time would cause prejudice to the opposite party.(See: LSW v LMYM, HCMP 1085/2006; 黃對潘, HCMP 2749/2014)

Order dated 20 December 2018

4.  The following are key background facts against which the Order dated 20 December 2018 was made.

(a)      An ancillary relief order was made by consent on 23 December 2016 during the FDR hearing whereby parties agreed, inter alia, the former matrimonial home be sold and its net sale proceeds be shared equally between them; the Respondent would pay the Petitioner a sum of $8,000 per month as children maintenance (ie $4,000 per child per month), and for that purpose, the Respondent would pay a sum of $1,300,000 out of his share of net sale proceeds into a joint account and parties would give joint instruction to the bank for a monthly transfer of $8,000 into the Petitioner’s sole bank account for the benefit of the children (“the AR Order”).

(b)     The Respondent did not fulfill any of his obligations under the AR Order. This subsequently led to various court orders made to enable implementation of the AR Order. They include, inter alia, an order authorizing the Petitioner to sign all the necessary conveyancing documents; an order to pay the sum of $1,300,000 into court out of the Respondent’s share of net sale proceeds for children maintenance.

(c) The former matrimonial home was eventually sold. The said sum of $1,300,000 was paid into court on 17 September 2018.

(d)     In various enforcement applications by the Petitioner, the Court has ordered that several sums of money and costs be paid out of the Respondent’s share of the net sale proceeds. After deduction, the net sum of HK$2,290,811.70 remained in the custody of the vendor’s conveyancing solicitors Young & Co., Rowdget W.

5.  By the Order dated 20 December 2018, I made the following directions:

(1)     The payment into court on 17 September 2018 of the sum of HK$1,300,000 being maintenance for the two children of the family be released to the Petitioner within 21 days, subject to the Petitioner’s strict compliance of the following:

(a) The Petitioner shall open a personal bank account with HSBC and deposit the said sum of HK$1,300,000 into the account. Commencing from the month of January 2019, the Petitioner can withdraw from the said account not more than HK$8,000 per month as maintenance for the two children;

(b) As retrospective maintenance payment for the months of October to December 2018, the Petitioner can within 7 days after the said sum of HK$1,300,000 was deposited into the said account, withdraw a lump sum of HK$24,000 therefrom;

(c) The said account shall only be used for the purpose of the above withdrawals, not for any other purposes;

(2) Leave for Young & Co., Rowdget W. to pay into court the sum of HK$2,290,811.70 being the Respondent’s share of net sale proceeds, pending the Respondent’s application for payment out.

(3) No order as to costs.

The Draft Grounds of Appeal

6.  The draft Grounds of Appeal contained allegations and criticism against the Petitioner which are totally irrelevant to the present application. It also mentioned about appealing against some previous orders of HH Judge Grace Chan of which leave to appeal was already refused.

7.  The draft Grounds of Appeal has raised only 3 points said to be relevant to the Order dated 20 December 2018.

“I do not have information about the HSBC bank statements of her [the Petitioner’s] personal bank accounts to support that she had opened a personal bank accounts and deposited HK$1,300,000 within 21 days from the Order dated 20 December 2018;

I do not have information related to support that she [the Petitioner] had withdrawn should not exceed HK$8,000 monthly from such her personal bank accounts from January 2019 for the children maintenance………., and also such her personal bank accounts only for the said maintenance purpose;

I do not find a formal contract from the Registry that …… Young & Co., Rowdget W. had submitted …. the statement of accounts for detailed calculation for [the Respondent’s] net share of sale proceeds ………. in the amount of HK$2,290,811.70 ………”

8.  It is obvious that the Respondent’s application is misconceived; he is not seeking leave to appeal. By the 1^st and 2^nd points above, it appears that he wants to check and verify whether the Petitioner has complied with the Order dated 20 December 2018. By the 3^rd point above, it appears that he wants to check and verify whether the sum of HK$2,290,811.70 represents an accurate amount of his share of sale proceeds. The Respondent did not say the Order dated 20 December 2018 should not have been made nor suggested I have erred in making the above directions.

9.  Instead of seeking leave to appeal against the Order dated 20 December 2018, what the Respondent could have done is to contact the Petitioner and/or Young & Co., Rowdget W. and request for the relevant documents, failing which, he may consider making a formal application for directions of the court. I note that the Petitioner by her written submission said the Statement of Account of Young & Co., Rowdget W. has already been provided to the Respondent on 26 September 2017.

Leave to Appeal is refused

10.  As said, the application for leave to appeal in the first place is misconceived. The draft Grounds of Appeal is also devoid of substance, there is plainly no reasonable prospect of success. I dismiss the Respondent’s application.

Costs

11.  The Petitioner by her written submission asks for costs. I see no reason why the Respondent should not bear costs of this meritless and misconceived application. However, the Petitioner has not submitted her statement of costs for summary assessment. She only said she has spent 4 hours to prepare the written submission in opposition, but she has not quantified the amount with evidence. The Respondent therefore has no chance to respond to the statement of costs which he is entitled to.

12.  Hence, on costs, I make the following directions:

(1)     The Respondent shall bear the Petitioner’s costs of this application to be summarily assessed. Such assessed costs shall be paid out of the Respondent’s share of net sale proceeds which is already paid into court by Young & Co., Rowdget W. on 4 January 2019.

(2)    The Petitioner do lodge with the court and serve on the Respondent her statement of costs within 14 days from the date of this decision; failing which the Petitioner shall be deemed to have abandoned her claim for costs. Within 7 days upon service of the statement of costs on the Respondent, an affirmation of service shall be filed by the Petitioner.

(3)     Upon service of the statement of costs, the Respondent shall lodge with this court and serve on the Petitioner his written comment; failing which the Respondent shall be deemed to have no comment on the statements of costs.