IP YEUNG MEI LAN v. IP MAN CHING

IN THE COURT OF APPEAL

1993, No 57
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. The husband and wife separated before 1968. She then had six children. On 15th July 1968 she was granted an order for maintenance and custody of the children under the Separation and Maintenance Ordinance Cap. 16. In 1969 the order was varied on her application. On 8th August 1978 H.H. Judge Wane varied the order again to $500 per month and $100 for each of the five youngest children. Those children have now all grown up and they are independent.

2. In the history of the matter the next thing of note was that the wife took proceedings against the husband by way of originating summons in April 1988 for a share in the compensation that he was awarded for demolition of two flats in Kowloon Walled City. She failed on 8th December 1989. An award of costs was made against her in the sum of $95,000 odd. It is said by the husband that she has not satisfied that order for costs.

3. On 20th March 1990 the wife took out a summons applying for the order of Judge Wane of 8th August 1978 to be varied. She made a supporting affidavit on 11th April 1990. She refers in para.12 to the compensation her husband had received. The following paragraph makes the nature of her application clear. She says:

"Due to my present financial hardship, I crave leave to the Court to vary the maintenance order and to increase the maintenance from $500.00 per month to a more realistic sum."

4. In affidavits which were filed by her and her husband reference is made to the compensation but nowhere does she indicate that she is making any application other than for an increase in the maintenance of $500 per month. After the 1st affidavit there were a number of interlocutory proceedings. There were affidavits, an application for production of documents and later an application to cross-examine the husband on his affidavit.

5. This particular application was overtaken by other proceedings in April 1991 to prevent the husband receiving the final instalment of compensation and for the payment of arrears of maintenance. The latter matter was resolved on 13th May by a consent order. A restraining order was made to preserve the final compensation payment but later it transpired that the payment had already been made.

6. On 8th June 1991 the application for variation was adjourned sine die. It appears the husband then returned to his home village in China. Nearly 18 months after the original summons the wife obtained a hearing date and the application came before H.H. Judge Rattigan on 26th September 1991. No doubt notices of the hearing were properly served at the husband's last known address. I am unable therefore to accept the submissions made by Miss Mok which refer to the fact that the husband was unaware that these proceedings had been revived and that the hearing had taken place on 26th September.

7. The hearing in front of H.H. Judge Rattigan was summary to say the least. The judge's notes simply record that the respondent had been served and was not present and that Mr Kwok asked for the $129,756 which it was thought the Registrar General was holding as the final payment of compensation to the husband.

8. Without more ado it would appear that the judge ordered a lump sum in that very figure and ordered the maintenance to be varied to $1,000 per month. That was an end of the matter.

9. It was later discovered by those representing the wife that the order restraining the payment of the final instalment of compensation had been made too late and there followed a multiplicity of proceedings seeking to enforce the lump sum payment. Those are not relevant to this appeal.

10. The next relevant development was on 8th March 1993. The husband took out a summons to set aside Judge Rattigan's order. It was dismissed. But on 2nd April 1993 H.H. Judge Surman gave the husband leave to appeal out of time.

11. Miss Mok for the husband takes a number of points. Concerning the judge's order for a lump sum payment there is only one with which I need to deal. She says, rightly, that the application for variation of the maintenance order was not an application for a variation to include the award of a lump sum. Even if the original summons leaves that matter in doubt, such doubt is cleared up by the affidavit filed in support. She submits that even assuming the proceedings before Judge Rattigan and his order were regular in the sense that the husband had been properly served, it would be unjust to the husband to allow the order to stand on the lump sum because that was not a matter which was before him. There was no application on the wife's behalf for an amendment to the application or the summons. If one had been made the judge could not have allowed such an amendment without reservice.

12. In short, for my part, I agree it would be unjust to allow this part of the order to stand. Even if the husband deliberately chose not to attend the hearing and to make no representations to the Court, so far as he knew his only risk was an increase in the maintenance. He can have had no idea that he was at risk for an order for a lump sum payment. Had he known he at least would have had the opportunity to decide whether or not to resist such an application.

13. Secondly, Miss Mok submits that the order for variation of the maintenance cannot stand because the judge gave no proper consideration to matters he is required to take into account. She refers to s.5(c) of the Separation and Maintenance Ordinance where he is enjoined to have regard to the means both of the husband and of the wife, and to decide what is reasonable.

14. She further submits that the judge ought to have had regard to the matters listed in s.2 of the Domestic Proceedings and Magistrates Court Act 1978 and s.7 of the Matrimonial Proceedings and Property Ordinance. No doubt those matters are a guide to the judge's approach under this Ordinance but they are not part of it. The judge's duty is to have regard to the matters in the Ordinance and all the circumstances of the parties and then to award a reasonable sum.

15. It is surprising that the judge having ordered a lump sum payment should then increase the amount of maintenance but his reasons for doing so are not evident. Although Miss Mok is on firm ground when she submits that the judge gave less consideration to this matter than he ought, we still have to determine whether the order he made for maintenance as it now stands is proper.

16. In all circumstances of the case on the evidence and in particular having regard to s.5(c) of the Ordinance $1,000 per month is a modest sum. On the assumption that the judge had considered all the matters incumbent upon him I, for my part, think that $1,000 per month was a proper sum for him to award and I would not interfere with that part of his order.

Liu, J.:

17. I agree. I only wish to add that the very fact that no finding has been made by the judge with respect to the $1,000 per month would itself warrant reconsideration on a remittal back to the Family Court, although there is nothing in the existing material before us to suggest that the sum $1,000 per month is in any way unreasonable.

Sears, J.:

18. I agree that this appeal should be allowed for the reasons already given.

[Appeal allowed in part. Order for lump sum payment set aside. No order for costs.]