RKL v. WL AND ANOTHER

FCMC 14906 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14906 OF 2014

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J U D G M E N T
(Jurisdiction and Forum)

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1. This is a dispute as to jurisdiction and forum.

Background

2. The Petitioner (Wife) and the 1^st Respondent (the Husband) are both 44 years of age. They both have dual US and Hong Kong citizenship. They were both born in Hong Kong and are both permanent Hong Kong identity card holders.  Their families spent most of their lives in Hong Kong. The Husband was naturalized as a US citizen in June 1992.

3. The Husband has been living in California since 1986. The parties met in at the age of 16 in 1986 when they were both attending high school in California. The Husband went on to a University in California after graduation from high school whilst the Wife returned to Hong Kong and worked as a clerk. In 1988, the Wife began her acting career in Hong Kong. In about the end of 1990, the Wife gave up her career to return to the US to be with the Husband. They began cohabitation in early 1991 and were eventually married in California, USA on 1 January 1993. The Wife subsequently graduated in a University in California.

4. The parties purchased the matrimonial home in California in September 1998. They lived and worked in California after their marriage. They came to Hong Kong to visit family and friends frequently.

5. The parties planned to start a family after marriage but in vain. In April 2006, the Wife had a miscarriage. Three months later, she was diagnosed with stage 2 breast cancer whereupon she began a 6 year treatment program. At about the same time, one of their friends, B was diagnosed with lymphoma. The 2^nd Respondent (the Girlfriend) was B’s wife.

6. In about April 2012, the Wife was given a clean bill of health. Unfortunately, B died in May 2012. The parties invited the Girlfriend to stay in their home to provide her with some support. The relationship between the Wife and the Husband became tense when the Husband became increasingly close to the Girlfriend. She therefore asked the Girlfriend to move out. The Wife had further health issues which may affect her fertility and she had to undergo another operation in late February 2013. In early March 2013, the Wife’s mother was diagnosed with cancer. Although she was advised not to travel, the Wife immediately returned to Hong Kong. Her mother passed away in late March 2013. When she returned to California, the Wife discovered that the Girlfriend had been staying in the matrimonial home with the Husband during her absence and that the Husband went on holiday with the Girlfriend in Hong Kong in June 2013. The Wife issued divorce proceedings in California on 24 June 2013. In late May 2014, the Husband finally admitted to having an affair with the Girlfriend and that the Girlfriend was pregnant with his child.

7. At about the same time, the Wife’s name was put forward for a position in Hong Kong. She was subsequently given that job and she relocated to Hong Kong. The Wife says that because of her relocation and her intention to live in Hong Kong permanently, she applied for dismissal of the divorce proceedings in California on 31 October 2014.

8. On 10 November 2014, the Petition (based on Adultery) in the present proceedings was issued. In her Petition, the Wife asserted that although she has just moved back to Hong Kong, she had a substantial connection with Hong Kong as at the date of the Petition [B1/1-3].

9. The Petition was served on the Respondents in Hong Kong on 10 November 2014. Both Respondents filed their Acknowledgement of Service (Form 4) on 15 November 2014 stating that they are not defending the Petition [B1/20-24]. In the normal course of events, the case would have proceeded to the Special Procedure List as an uncontested cause. However, about a month later, the Respondents filed and served another Form 4 and their Answers. In their Answers, although the Respondents maintained their admission of adultery and irretrievable breakdown of the marriage, they challenged the Court’s jurisdiction in these proceedings. In the alternative, they asserted that the Hong Kong Court is not the natural or appropriate forum for trial [B1/32-39, 40-49]. On 23 December 2014, the Husband filed divorce proceedings in California.

10. In the light of these developments and by a letter dated 8 January 2015, Her Honor Judge Melloy gave the following directions:

“Parties to address the court on the issue of jurisdiction on 19 January 2015.

Please take out inter-partes summons for the above issue accordingly”.

11. On 9 January 2015, the Husband filed a summons in respect of his challenge to jurisdiction and forum [B1/50-52]. In his summons, the Husband asked for the following orders:

“1. The proceedings herein be dismissed on the basis that the Petitioner does not have a substantial connection with Hong Kong.

2. In the alternative, the proceedings herein be dismissed on the basis that Hong Kong is not the forum in which these proceedings should be heard.

3. Pending the determination of the above applications there be an interim stay of the proceedings.

4. The costs of and incidental to the applications be paid by the Petitioner”.

12. On 19 January 2014, the Wife took out a summons to amend the Petition. Leave to amend was granted on 21 January 2014. In her Amended Petition, the Wife alleged that both she and the Husband had a substantial connection with Hong Kong as at the date of the Petition [B1/55-58]. Thereafter the Respondents filed a further Form 4 reiterating their challenge to jurisdiction and forum [B1/68-73]. On 13 February 2015, the Husband took out a second summons asking that the Amended Petition be dismissed on the basis that neither the Wife nor the Husband had a substantial connection with Hong Kong and in the alternative, that Hong Kong was not the forum in which these proceedings should be heard [B1/84-85].

Issues

13. Apart from the substantive issues of jurisdiction and forum, the Wife has raised a number of procedural issues. She argued that the Respondents had submitted to the Court’s jurisdiction by filing their first Form 4s and it is therefore no longer open to them to challenge jurisdiction or forum. In addition, the Wife says that the Husband’s summonses were out of time and defective in their wording.

14. There is no dispute that the issues are as follows:-

(a)  Whether it was still open to the Respondents to challenge jurisdiction after the filing of their first Form 4s;

(b)  Whether the procedure adopted by the Husband in his challenge of jurisdiction and forum was defective;

(c)  Whether the Court should consider the question of jurisdiction;

(d)  Whether the Wife and/or the Husband had a substantial connection with Hong Kong at the time of the Petition and thereby conferring jurisdiction on the Court;

(e)  In the event that the Court finds that it has jurisdiction over these proceedings, whether the Respondents had submitted to jurisdiction;

(f)  Whether it was still open to the Respondent to argue the question of forum; and

(g)  Whether Hong Kong is the proper forum to hear these proceedings 

Whether it is still open to the Respondent to Challenge Jurisdiction

15. The Wife argued that the Husband had submitted to jurisdiction by filing his first Form 4. It was therefore no longer open to him to dispute jurisdiction. She also pointed out that the Husband applications were out of time. The Husband denied that his applications were out of time. He argued that his filing of the first Form 4 cannot confer jurisdiction if neither parties had a substantial connection with Hong Kong in the first place.

16. The Wife accepted that the Court’s jurisdiction cannot be founded upon the Husband’s Form 4 if neither of them had a substantial connection with Hong Kong. It was also not in dispute that even if the Husband’s applications were defective, the Court had power to consider the question of jurisdiction on its own motion. It appears from the history of these proceedings that Her Honor Judge Melloy was concerned about the question of jurisdiction and gave directions for the filing of a summons and evidence.

17. In those circumstances, it was not necessary for the Court to resolve this issue. However, the Wife’s arguments in respect of the defects in the Husband’s applications are also relevant to the issue of forum.

Whether Either of the Parties had a Substantial Connection with Hong Kong

18. Jurisdiction is provided for in Section 3 of the Matrimonial Causes Ordinance, Cap179. In the present case, the Wife relies on Section 3(c), namely, that “either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application”.

19. Under section 3(c), it is only necessary for a party to demonstrate that at least one of the parties had a substantial connection with Hong Kong at the time of the Petition, ie, either the Husband or the Wife. The phrase ‘a substantial connection with Hong Kong’ in section 3(c) is not a term of art and should be given its ordinary meaning( B v A [2007] 4 HKC 610 at para 18; ZC v CN at para 9.1). Although a wider meaning is to be given to this phrase than the requirement of domicile in section 3(a) or three years ordinary residence in section 3(b) of cap 179, this is not intended to be interpreted so loosely as to encourage residence of passage or divorce of convenience, as it was not the legislative intent to create a ‘fly in fly out’ divorce jurisdiction (Savournin v Lau Yat Fung [1971] 1 HKLR 180 at 184; S v S [2006] 3 HKLRD 751 at para 17; B v A at para 26; Z c v CN at para 9.9; LCYP v JEK CACV 98 & 125/2015 at para 38).

20. Unlike domicile which a person cannot have more than one at the same time and for the same purpose, one can have a substantial connection with more than one jurisdiction at a time. Hence it is not necessary for a party to demonstrate that his/her connection with Hong Kong is the only substantial connection or the most substantial connection she has with any jurisdiction. It is sufficient if he/she demonstrates among others that he/she has ‘a’ substantial connection with Hong Kong (S v S at para 13; LCYP v JEK at para 39).

21. Whether a party has a substantial connection with Hong Kong is a question of fact, so the factors to be taken into consideration and the weight to be given to each relevant factor would vary according to the particular circumstances of each case (S v S at para 18; ZC v CN at para 53; LCYP v JEK at para 40).

22. The fact that the parties do not have a matrimonial home here or have not lived here as man and wife is not necessarily determinative (S v S at para18; LCYP v JEK at paras 41-42). Section 3(c) of Cap 179 only required either, not both, of the parties to the marriage to have a substantial connection with Hong Kong. As stated in ZC v CN at para 9.9, it will be unduly restrictive if one confines the connecting factors solely to that of a family context (matrimonial home and the presence of spouses and children). While in the majority of cases family context is the focus of enquiry and a material factor, there may be exceptional situations where a party is in Hong Kong without the presence of his family and nonetheless has a substantial connection here (LCYP v JEK at para 42).

23. In LCYP v JEK, the wife was Chinese and was born in Hong Kong. The husband was an American born in Brooklyn and grew up mainly in the New Jersey area of the United States. The parties met in 1994 in Hong Kong and married in September 1997 in New Jersey. After their marriage, the wife moved to live in New Jersey where the parties set up home. The Wife acquired US citizenship in about February 2004. There were 2 children of the family who were born in New Jersey. The family continued to live in New Jersey until the wife moved to Hong Kong with the children on 6 July 2013. She entered into a lease and purchased a car in Hong Kong. The children were enrolled into a prestigious international school here. In about December 2013, the wife discovered that the husband was having an affair and on 17 April 2014, she petitioned for divorce in Hong Kong. This was followed by the husband issuing divorce proceedings in New Jersey on 30 May 2014. On 9 June 2014, the husband issued a summons in Hong Kong to stay the proceedings on the ground that the Hong Kong Court lacked jurisdiction, alternatively by reason of forum non conveniens. The family court ruled that the wife did not have a substantial connection with Hong Kong. That decision was overturned by the Court of Appeal.

24. In the present case, there can be no dispute that both the Husband and the Wife had some personal connection with Hong Kong. The only real question is whether that is sufficient to form a ‘substantial connection’ with Hong Kong.

25. The Wife’s situation in the present case is very similar to the facts in LCYP v JEK. She is Chinese and was born in Hong Kong. Her family is in Hong Kong. She is and has always been a holder of a Hong Kong permanent identity card. She went to the US for high school but returned to Hong Kong to work after her graduation. She only went to the US again to be with the Husband. She lived in the US during her marriage to the Husband. They set up a home there and the Wife subsequently acquired US citizenship. However, she visited her family and friends here frequently. There was no matrimonial home here but the parties have access to the Husband’s family home, which was their base in Hong Kong during their marriage. There is no dispute that the parties intended to return to live in Hong Kong should they succeed in having children. Although the Wife commenced divorce proceedings in the US in 2013, she was still hoping for a reconciliation. It was only after the Husband admitted that he was having an affair and that the Girlfriend was expecting his child that the Wife lost all hope in the marriage. She then decided to take up employment in Hong Kong and made arrangements to move back here. By that stage, there was nothing left for her in the US except broken dreams. There is really no reason for her to return to the US.

26. Unlike the wife in LCYP v JEK, the Wife in the present case has only just moved to Hong Kong at the time of the Petition and had not yet set up her own home. This does not affect her previous connection with Hong Kong or her intentions to stay here on a long term basis. In my judgment, the Wife does have a substantial connection with Hong Kong.

      Section 3 of the Matrimonial Causes Ordinance only requires either one of the parties to these proceedings to have a substantial connection with Hong Kong. In the light of the above finding, the Wife’s substantial connection with Hong Kong is sufficient to found jurisdiction for this Court and any discussion about the Husband’s connection with Hong Kong would only be academic. However, this Court would also consider whether the Husband had a substantial connection with Hong Kong for the avoidance of doubt.

27. The Husband was also born in Hong Kong. There was no suggestion that he lived anywhere else until he went to school in the US. Although he said that he started to live in the US since 1986, he was only there as a student. He was only naturalized in 1992. Although the Husband lived in the US, he returned to Hong Kong frequently, not only to visit family and friends, but also to manage assets, at least part of which is ultimately his inheritance. He had bank accounts held in joint names with his late father, his late uncle and his elderly aunt. He has credit cards in Hong Kong. Although there was no matrimonial home in Hong Kong, the parties and access to the Husband’s family home here. The Husband’s father passed away and no probate has been taken out. However, the Husband has continued to use this home. He is still living there when he is in Hong Kong. The Husband has taken out probate in respect of his late uncle’s estate. He used his family home in Hong Kong as his residential address in the application. There is no dispute that he intended to move back to Hong Kong should he and the Wife succeed in having children. In all those circumstances, it is clear that the Husband also had a substantial connection with Hong Kong at the time of the Petition. 

Whether it is Open to the Husband to Challenge Forum

28. Order 12 rule 8 provides that a defendant who wishes to challenge jurisdiction and/or apply for a stay of the proceedings on the grounds of Forum non conveniens, he must do so by way of a summons “within the time limited for service of a defence”. The summons must state the grounds of the application. Under Order 12 rule 8(7), except where the defendant makes an application in accordance with Order 12 rule 8(1) and 8(2), the acknowledgment by a defendant of service of a writ, shall, unless the acknowledgment is withdrawn by leave of the Court under Order 21 rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.

29. The Procedure and practice for making an application for relief under rule 8(1) or (2) is as follows:

(1) A defendant who wishes to contest the proceedings in any of the ways set out in rule 8(1), (2) or on the merits, he must give notice of intention to defend. At this stage, that notice is neutral; it does not amount to a submission to the jurisdiction if the defendant makes an application under rule 8. 

(2) If the defendant gives notice of intention to defend, he then must choose whether to make an application under rule 8(1), (2) or to contest the case on its merits. If he chooses to challenge jurisdiction or forum, he must issue an application in the method prescribed by rule 8(3) within the time limited for service of the defence.

(3) If a defendant chooses to make an application under rule 8(1) or (2), he should not meanwhile serve a defence, or take any step to defend the case on the merits, or apply for other primary relief; this may be construed as a submission to the jurisdiction or a waiver of irregularity [Guangtong Li Fruit Wholesale Market Co. Ltd v Yip Lai Fong [2003] 1370 HKCU 1]. However, service of a defence will not be so construed where it should not be regarded realistically and fairly as a submission to jurisdiction [Miruvor Ltd v Panama Globe Steamer Lines SA & Others [2007] HKEC 262]. It should be made clear in the covering letter serving the defence and the defence itself that the filing and serving of the defence is without prejudice and is merely done as a precaution with no intention to submit to jurisdiction [ABN Amro Bank v Charles Fabrikant Fortgang [2008] 2 HKLRD 349]

(4) A defendant wishing to challenge jurisdiction should take care not to submit to the court’s jurisdiction by taking any step in the action (for example by unqualifiedly serving a defence [ABN Amro Bank v Charles Fabrikant Fortgang].

30. In considering whether there has been a submission to the jurisdiction of this Court by the Respondents and the legal effect thereof, the proper test is set out in the judgment in Global Multimedia International Ltd v Ara Media Services and another (Abu-Aljadail and others, Part 20 defendants) [2007 1 All ER (Comm) 1160 at paragraphs 27-28:

“[27] The test to be applied in determining whether any particular conduct amounts to a submission to the jurisdiction was considered by Colman J in Spargos Mining NL v Atlantic Capital Corp reported only in (1995) Times, 11 December, but quoted in full by Patten J in SMAY Investments Ltd v Sachdev [2003] EWHC 474 (Ch) at [41], [2003] 1 WLR 1973 at [41]. I reproduce the whole of the quote as set out in that para [41] from the judgment of Patten J:-

“In approaching the question of submission, I have in mind the following authorities. In Astro Exito Navagacion SA v WT Hsu, otherwise know, more pronounceably, as The Messiniaki Tolmi [1984] 1 Lloyds Reports, 266, Goff LJ said at p 270, “Now a person voluntarily submits to the jurisdiction of the court if he voluntarily recognises, or has voluntarily recognised, that the court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the court’s jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party’s submission to the jurisdiction is that he is precluded thereafter from objecting to the court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the court, amounts to a voluntary submission to the jurisdiction must depend upon the circumstances of the particular case.” In [Sage v Double A Hydraulics Ltd [1992] The Times, 2 April 1992, TLR 165], Farquharson LJ said (and this is a report of the judgment which is not reported in oratio recta): “A useful test was whether a disinterested bystander with knowledge of the case would have regarded the acts of the defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge”. In arriving at the view to be imputed to the disinterested bystander, it seems to me that one has to bear in mind that there will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a waiver, or a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction. If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will, on the authorities, be no submission ... If the well-informed bystander had been left in doubt because what the defendants had done was equivocal, in the sense that it was explicable on other grounds in addition to agreement to accept the jurisdiction of the court, then the conclusion must be, on the authorities, that there would have been no submission to the jurisdiction. The representation derived from the conduct of the party said to have submitted must be capable of only one meaning.’

[28] Thus the test to be applied is an objective one and what must be determined is whether the only possible explanation for the conduct relied on is an intention on the part of the defendant to have the case tried in England.”

31. The same test was applied by the Court of Appeal in Miruvor Ltd v Panama-Globe Steamer Lines SA [2007] 1 HKLDR 804 where it was held that there was no submission to the jurisdiction of the court by the third defendant. In that case the defendant made plain in the defences which commenced with a first paragraph which read:-

“For the avoidance of doubt, this defence is made strictly without prejudice to be third defendant’s applications (i) to have the writ served against it set aside; and/or (ii) to have the plaintiff’s claim dismissed for want of prosecution.”

32. After citing the relevant authorities, Rogers VP said at page 809:-

“The question which appears to me to be relevant, therefore, is whether looked at fairly and sensibly has what the defendant has done constituted a submission to jurisdiction. In my view, when the defences are considered it is abundantly clear from the first paragraph that the third defendant intended to challenge the jurisdiction and was to make an application to that effect.”

33. It was held by Sakhrani J in ABN Amro Bank NV v Fortgang [2008] 2 HKLRD 349 that if a step, although consistent with the acceptance of jurisdiction, could also be explained as necessary or useful for some purpose other than acceptance of jurisdiction, then there would not be an effective waiver or a submission to the jurisdiction.  In that case, the defendant’s service of the unqualified defence was held to be an unequivocal act of his submission to the jurisdiction of the Hong Kong court.  The step of service of the unqualified defence could not be explained as necessary or useful or for some purpose other than acceptance of the jurisdiction.  Contrary to the defendant’s submission, there was no evidence that the defence was filed and served purely as a precaution to protect its rights, but with no intention to submit to the jurisdiction.

34. On the same principles, it was held by the Court of Appeal in SJH v RJH (CACV 280/2011) that the husband’s stay summons on the grounds of, inter alia, forum non-conveniens was justifiably refused in the court below for reasons that he had filed an answer to the petition and an answer (by way of Form E) to the ancillary relief application. The Court of Appeal found that the husband having filed his answer, was clearly too late to challenge the jurisdiction of the Hong Kong court. The time limitation provision in respect of jurisdictional challenge provided under Order 12 rule 8(2) alone clearly justified dismissal of his stay summons without the need to deal with the submission to jurisdiction point raised by the wife, though the filing of the answer must be construed as a submission to jurisdiction.

35. In the present case, the Petition was issued on 10 November 2014. It was served on the Husband and the Girlfriend in Hong Kong on the same day. On 15 November 2014, the Husband and the Girlfriend each filed their first Form 4, stating without any qualification that they did not intend to contest the Petition [B1/20-27]. On 17 November 2014, the Husband also filed a Certificate as to Family Mediation [B1/28-31]. On 16 December 2014, the Husband filed his Answer. In his Answer, he admitted the Wife’s claim or adultery and irretrievable breakdown but challenged jurisdiction and jurisdiction [B1/40-41]. The Husband’s first summons to challenge jurisdiction and forum was only taken out on 9 January 2015 [B1/50-52]. The Wife argues that the Respondents have thereby submitted to the Court’s jurisdiction.

36. As explained above, the foundation to any challenge to jurisdiction or forum under Order 12 rule 8 is a notice of intention to defend. Rule 15(1) of the Matrimonial Causes Rules provides that “In these rules any reference to a notice of intention to defend is a reference to an acknowledgment of service in Form 4 containing a statement to the effect that the person by whom or on whose behalf it is signed intends to defend the proceedings to which the acknowledgment relates…”

37. The Husband’s first Form 4 was clear and unequivocal. He indicated an intention NOT to defend. He then went on to file a Certificate as to Family Mediation 2 days later. The filing of these documents were wholly inconsistent with any intention to challenge jurisdiction or forum. The Wife raised the question that the Respondents have submitted to jurisdiction in her 2^nd Affirmation filed on 9 February 2015. The Form 4 indicating that he was not contesting the claim and the Certificate as to Family Mediation could not in any sense be regarded as necessary or useful for some purpose other than acceptance of jurisdiction. The Husband has not even attempted to put forward any explanation. In his 2^nd Affirmation, he merely argued that he was entitled to file another Form 4 under the Matrimonial Causes Rules and that his second Form 4 was within time. Even if his summonses were within time (which is disputed), it was incumbent on the Husband to explain the purpose of filing his first Form 4 and the Certificate as to Family Mediation if he says that he has not submitted to jurisdiction. This was never done.

38. In my judgment, there could be no purpose in filing the first Form 4 and the Certificate as to Family Mediation other than submitting to the Court’s jurisdiction in the present case. The Husband has submitted to jurisdiction and it is no longer open to him to challenge jurisdiction or forum.

39. Apart from the filing of the above mentioned documents, the Husband’s applications are fraught with a whole host of other problems. The Wife pointed out that the Husband’s applications were out of time and otherwise than in accordance with Order 12 rule 8.

40. The Husband relied on Rule 15(4) of the Matrimonial Causes Rules which provides that “a person may give notice of intention to defend notwithstanding that he has already returned to the registry an acknowledgment of service not constituting such a notice”. Rule 15(4) does not override the provisions of Order 12 rule 8. Under Order 12 rule 8(7), except where an application is made in accordance with Order 12 rule 8(1) or (2), even a mere acknowledgment of service shall unless the acknowledgment is withdrawn with the leave of the Court, be treated as a submission to the Court’s jurisdiction.  In the present case, the Husband’s first Form 4 was much more than an acknowledgment. He had effectively admitted the Wife’s claim of adultery in the Main Suit.

41. The Husband alleged that the Wife has failed to set aside his second Form 4. The practice and procedure under Order 12 rule 8 is clear. Under rule 8(7), except where the defendant makes an application in accordance with rule 8(1) or (2), the acknowledgment by a defendant of service of a writ shall, unless the acknowledgment is withdrawn by leave of the Court under Order 21 rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings. It is clear that it was the Husband who should apply for leave to withdraw his first Form 4. No leave was sought to withdraw the first Form 4. In any event, submission to jurisdiction is an irrevocable step. Since the Husband has submitted to jurisdiction by filing his first Form 4, it is doubtful whether such leave would be granted even if the application had been made.

42. Order 12 rule 8(1) and 8(2) provide inter alia, that any application to challenge jurisdiction or forum must be made “within the time limited for service of a defence”.  Under Order 12 rule 8(3), such applications must be made by summons.  Rule 18 of the Matrimonial Causes Rules provides that the Answer (if any) is to be filed and served “within 21 days after the expiration of the time limited for giving notice of intention to defend”. That time limit expired on 9 December 2014.  The Husband’s first summons was only taken out on 9 January 2015.  The Wife pointed out that the Husband’s summons to challenge jurisdiction and forum was out of time. Because the Husband’s first summons was 1 month after the expiration of the time limited for service of the Answer, the Wife argued that he has failed to make an application in accordance of rule 8(1) and (2) and is therefore treated as having submitted to jurisdiction.

43. The Husband prays in aid of Rule 15(3) of the Matrimonial Causes Rules which provides that “Notice of Intention to defend a cause begun by Petition may be given at any time before directions for trial are given, notwithstanding that the time limited for giving such notice has expired”. The wording of Order 12 rule 8(1) and (2) are very clear. The application must be made within the time limited for the service of the defence (and not within the time that a defence may be served). Rule 15(3) of the Matrimonial Causes Rules does not extend the time in which such an application may be made. To the contrary, it specifically recognizes that the time limited for the service of the Answer was within 21 days after the expiration of the time limited for giving notice of intention to defend. 

44. It is in fact possible to make an application to challenge jurisdiction and/or forum out of time. The Husband could have applied for an extension of time under Order 3 rule 5(1). Such an application should be supported by an explanation as to the need for the extension [Yeung Fu Lin & Another v Wong Kam Hung & Another [1997] 3 HKC 809]. No such application was made. No explanation has ever been given as to why the Husband failed to comply with the procedure set out in Order 12 rule 8(1) and 8(2). 

45. The Husband’s application was out of time was not in accordance with Order 12 rule 8. Under rule 8(7), he would also be treated as submitting to jurisdiction for that reason.

Forum

46. Since the Court has found that the Husband has submitted to jurisdiction, it is not necessary to consider the arguments on forum.

47. Accordingly, the 1^st Respondent’s summonses filed on 9 January and 13 February 2015 are dismissed with costs to the Petitioner to be taxed if not agreed with Certificate for Counsel.