PKY v. CHM

FCMC 3927/2015

[2022] HKFC 68

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3927 OF 2015

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D E C I S I O N

(Leave to enforce maintenance due over 12 months)

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Introduction

1.  This is the application by the Petitioner Wife (“W”) for leave to enforce maintenance due over 12 months pursuant to Section 12 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”).

2.  On 3/12/2020, W filed an Inter Partes Summons[1] for leave to enforce payments due over 12 months (“Leave Summons”). By that time, with leave of the Court, W had already issued her 1^st Judgment Summons[2] (“1^st JS”) for the sum of HK$3,880,000 with the returnable date of 8/2/2021. As per directions of Deputy Judge Doris To, the Leave Summons was scheduled to be heard together with the 1^st JS on 8/2/2021.

3.  On 8/2/2021, both the Leave Summons and the 1^st JS were adjourned to 26/4/2021 upon W’s undertaking to issue a second Judgment Summons (“2^nd JS”) within 28 days which would also be heard together[3]. Directions were granted for the parties to file and exchange affirmations and the Respondent Husband (“H”) to also file his Financial Statement (Form E) within 42 days.

4.  On 17/3/2021, W issued the 2^nd JS for recovery of the sum of HK$4,365,000[4].

5.  Further, on 22/4/2021 W issued the 3^rd JS for recovery of the sum of HK$1,125,000[5]. This 3^rd JS was also scheduled to be heard on 26/4/2021 (that is, 4 days later) together with the Leave Summons, 1^st and 2^nd JS.

6.  On 26/4/2021, the Leave Summons was adjourned for substantive argument before this Court on 21/10/2021 (with 1 day reserved), and the 1^st, 2^nd and 3^rd JS were adjourned sine die with liberty to restore.

Background

7.  Parties married in October 1987. There are 2 children born out of the marriage who are now respectively at the age of 33 and 27.

8.  In April 2015, W filed a Petition for divorce.

9.  Decree Nisi was granted in June 2015.

10.  Decree Absolute was granted in August 2015.

11.  In June 2015, parties through their lawyers entered into a Consent Summons for a full and final global settlement of their ancillary reliefs[6]. The 13-page Consent Summons was a comprehensive one drafted by W’s lawyers with recitals which embraced various undertakings, understanding, acknowledgement, agreement and conditions precedent to the agreed terms on ancillary reliefs.

12.  On 12/6/2015, the Court granted an Order in terms of the Consent Summons (“Consent Order”)[7]. Suffice is to say that amongst other terms and conditions, H was pay to W a lump sum of 17 million by 72 instalments (“Lump Sum”) by depositing into W’s bank account at Dah Sing Bank Limited. Each of the 72 instalments was to be paid not earlier than different designated date(s) set out in the Consent Order.

The Agreed Terms

13.  Insofar as this application is concerned, the terms in issue are mainly Recitals G and H, which are set out below :-

“G. AND UPON the Respondent agreeing and undertaking to the Court and to the Petitioner that he shall pay to the Petitioner HK$17,000,000 being a lump sum payment in full and final settlement of all the Petitioner’s claim for ancillary relief. Subject to Recital M, the said sum of HK$17,000,000 shall be paid by the Respondent to the Petitioner by depositing into the bank account no. 040-xxx-xxx-xxxx-7 with Dah Sing Bank Limited in the following manner :-

 

Instalment	Date of payment not earlier than	Amount (HK$)	Subtotal (HK$) per annum
1	01/05/2015	90,000 (20,000.00 to be offset as per Recital M)
2	01/06/2015	90,000 (20,000.00 to be offset as per Recital M)
3	01/07/2015	90,000 (20,000.00 to be offset as per Recital M)
4	01/08/2015	90,000 (20,000.00 to be offset as per Recital M)
5	01/09/2015	80,000 (20,000.00 to be offset as per Recital M)
6	01/10/2015	80,000.00
7	01/11/2015	80,000.00
8	01/12/2015	80,000.00
9	01/01/2016	80,000.00
10	01/02/2016	80,000.00
11	01/03/2016	80,000.00
12	15/04/2016	80,000.00
	Sub-total:		1,000,000.00

 

13	01/05/2016	125,000.00
14	01/06/2016	125,000.00
15	01/07/2016	125,000.00
16	01/08/2016	125,000.00
17	01/09/2016	125,000.00
18	01/10/2016	125,000.00
19	01/11/2016	125,000.00
20	01/12/2016	125,000.00
21	01/01/2017	125,000.00
22	01/02/2017	125,000.00
23	01/03/2017	125,000.00
24	01/04/2017	125,000.00
	Sub-total:		1,500,000.00

25	01/05/2017	250,000.00
26	01/06/2017	250,000.00
27	01/07/2017	200,000.00
28	01/08/2017	200,000.00
29	01/09/2017	200,000.00
30	01/10/2017	200,000.00
31	01/11/2017	200,000.00
32	01/12/2017	200,000.00
33	01/01/2018	200,000.00
34	01/02/2018	200,000.00
35	01/03/2018	200,000.00
36	01/04/2018	200,000.00
	Sub-total:		2,500,000.00

37	01/05/2018	300,000.00
38	01/06/2018	300,000.00
39	01/07/2018	290,000.00
40	01/08/2018	290,000.00
41	01/09/2018	290,000.00
42	01/10/2018	290,000.00
43	01/11/2018	290,000.00
44	01/12/2018	290,000.00
45	01/01/2019	290,000.00
46	01/02/2019	290,000.00
47	01/03/2019	290,000.00
48	01/04/2019	290,000.00
	Sub-total:		3,500,000.00

49	01/05/2019	350,000.00
50	01/06/2019	350,000.00
51	01/07/2019	330,000.00
52	01/08/2019	330,000.00
53	01/09/2019	330,000.00
54	01/10/2019	330,000.00
55	01/11/2019	330,000.00
56	01/12/2019	330,000.00
57	01/01/2020	330,000.00
58	01/02/2020	330,000.00
59	01/03/2020	330,000.00
60	01/04/2020	330,000.00
	Sub-total:		4,000,000.00

61	01/05/2020	375,000.00
62	01/06/2020	375,000.00
63	01/07/2020	375,000.00
64	01/08/2020	375,000.00
65	01/09/2020	375,000.00
66	01/10/2020	375,000.00
67	01/11/2020	375,000.00
68	01/12/2020	375,000.00
69	01/01/2021	375,000.00
70	01/02/2021	375,000.00
71	01/03/2021	375,000.00
72	01/04/2021	375,000.00
	Sub-total:-		4,500,000.00
	Total:		17,000,000.00

H.  AND UPON the Petitioner and Respondent agreeing and undertaking to the Court and to each other that in the event the Respondent shall default in making any payment(s) under Recital G, the Respondent shall be given a grace period of 90 days (“the grace period”) to settle the arrears and/or subject to the mutual consent of the Petitioner and the Respondent, to try to agree with a new payment schedule within the grace period. In the event, the Respondent still fail to make any payment as stated in Recital G or in the event no fresh repayment schedule is agreed by the parties at the expiration of the grace period, the Petitioner shall be at liberty to take out enforcement proceedings against the Respondent for the balance of the lump sum arrears payable under Recital G. In such event, the Petitioner further undertakes to the Respondent and to the Court that she will not seek to recover from the Respondent any interest for his late payment(s) pursuant to s.53A(2) of the Matrimonial Cause Ordinance (“MCO”). For the avoidance of doubt, interest for late payment pursuant to s.53A(2) of the MCO shall start to run from the date the Petitioner shall take out any enforcement proceedings.”

14.  For the sake of completeness, Recital M is also set out below :-

“M. AND UPON the Petitioner and the Respondent agreeing and undertaking to the Court and to each other that :-

(a) The Petitioner shall be entitled to reside in Flat x, x/F., Block xx, xxxx Garden, xxx Castle Peak Road, Tsing Lung Tau, New Territories (the “Property”), the lease of which was taken out by xxxx Transportation Limited (xxxx運輸有限公司);

(b) The Respondent shall continue to cause xxxx Transportation Limited (xxxx運輸有限公司) to pay rent of the said property until the expiration of the tenancy on 19 October 2015 and it is acknowledged that the rent for the period from 20 May 2015 up to 19 October 2015 had already been paid by the delivery of 5 post-dated cheques to the Landlord of the property at the commencement of the lease;

(c) Subject to due payment of the rent for the period from 20 May 2015 up to 19 October 2015 by xxxx Transportation Limited (xxxx運輸有限公司), the Petitioner further agrees that such 5 monthly rental payments shall be offset from the instalment referred to in Recital G.”

Section 12 of the MPPO, Cap.192

15.  Section 12 of the MPPO provides :

“(1) A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

(2) The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court think proper, or may remit the payment of such arrears or of any part thereof.

(3) An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court.”

The Leave Summons

16.  As per the Schedule attached to the Leave Summons, where it was said :-

SCHEDULE

Pursuant to Recital G of the Order, the Respondent agreed to pay a lump sum of HK$17,000,000 to the Petitioner in full and final settlement of the Petitioner’s ancillary relief claim by way of 72 instalments. The present application relates to the 44^th and 45^th instalments under Recital G of the Order which are outstanding in the manner as follows.

Instalment #	Amount payable	Amount due
44	HK$290,000	HK$ 90,000
45	HK$290,000	HK$290,000
Total:		HK$380,000

The Evidence

17.  W filed her 2^nd Affirmation in support[8] of the Leave Summons. H filed his Affirmation in opposition[9]. W then filed her 4^th Affirmation in reply[10].

18.  Since there was no dispute over the factual matters set out in the parties’ affirmations, both Counsel for H and W confirmed that the parties would not be testifying at this hearing for cross examination. Apart from the parties’ affirmation evidence, both Counsel relied upon their oral submissions made in addition to their written submissions already filed.

The Issues to be decided

19.  There is not much dispute between Counsel as to the legal principles involved. It is also common ground on facts that there was delay on the part of W to seek enforcement of the remaining balance of the 44^th instalment of $90,000 and the 45^th instalment of $290,000. Summarising their respective cases, the issues before this Court are as follows :-

(a)  When should the 12-month period under Section 12 of the MPPO start to run in respect of the 44^th and 45^th instalments ? Given Recitals G and H within the terms of the Consent Order, would it be 1/12/2018 (for the 44^th instalment) and 1/1/2019 (for the 45^th instalment) as H contested; or should it be 1/3/2019 (for the 44^th instalment) and 1/4/2019 (for the 45^th instalment) as per W’s case who took into computation of the 90-day grace period under Recital H ?

(b)  To what extent would H’s past payment(s) of the other instalments (that is, 17^th to 32^nd and 35^th to 42^nd instalments), which was made after the 90-day grace period had expired, have upon this Court’s decision on Issue (a) above ? The 43^rd instalment was paid on 4/2/2019[11] which, according to the Consent Order, should be paid “Not earlier than” 1/11/2018[12], that is to say, it was paid around 93 days after 1/11/2018 or around 3 days after the 90-day grace period had expired.

(c)  Was the delay long or excessive so that leave should not be granted for W to assert her right of enforcement for the 44^th* and 45^th instalments ?

(d)  Whether W was able to show “good reasons” or “special circumstances” to the extent that was required for granting her leave to recover the 44^th* and 45^th instalments ?

  (* - It was common ground that the 44^th instalment where leave for enforcement is now sought is only the balance sum of HK$90,000 given that H had paid HK$200,000 by 4 separate payments of HK$50,000 each on 10 & 28 May, 19 June and 2 July 2019[13])

Discussion

Issue (a)

20.  The Consent Order was granted upon the Consent Summons signed by the parties in its entirety with no amendment or modification. Recital G as drafted contained a very comprehensive table (spread over 3½ pages) setting out details of each and every one of the 72 instalments by dividing into separate columns with description of (i) Instalment number; (ii) Date of payment not earlier than; (iii) Amount (HK$); and (iv) Sub-total (HK$) per annum.

21.  On (ii), the specific words “not earlier than” which followed “Date of payment” must mean that the date stated therein should be the first day when that particular instalment should or need to be paid. It could not

be any time earlier. This is clear and unambiguous and must be the parties’ common intention at the time of the Consent Summons.

22.  Recital H contains a 90-day grace period to start running after the particular date(s) set for each of the 72 instalments. It provides an avenue of time buffer that any particular instalment(s) could still be paid on any date within the period of 90 days (that is, the grace period) if it was not paid on the date set under the column “not earlier than”. This is also clear and unambiguous.

23.  Apparently, the grace period was needed in order to put a ‘cap’ to each particular instalment that was not paid on the earliest date that it should or could be paid; for otherwise, that particular instalment would not have a “last day” time limit to pay. Reason is simple. There was only the time set for “not earlier than” but without the corresponding capping time set for “not later than”.

24.  Such “notional last day” set by the 90-day grace period in the terms of Recital H could be any date within or at most at the expiry of the 90-day grace period (and this does not require any separate agreement of the parties) and I would call this as “Scenario 1”; or, it could be such other new payment schedule which would be outside (emphasis added) the 90-day grace period provided that there was agreement of the parties made within (emphasis added) the 90-day grace period. I would call this as “Scenario 2”.

25.  Recitals G and H are co-related and must be read and considered together for a workable and sensible meaning. Thus it produced the 2 scenarios above mentioned. It could be seen from the table extracted by W’s Counsel in his Written Submissions on H’s past payment(s) for the 17^th to 32^nd instalments and 35^th to 42^nd instalments[14] that Scenario 1 had never occurred. H only paid after (emphasis added) the 90-day grace period had expired. This was not disputed by H or his Counsel. It is fair to say that H did not only make use of the 90-day grace period under Recital H, he had actually taken more time to pay, at least for those instalments extracted if not also for the other instalments.

26.  Since neither party took issue on those payment(s) made after the 90-day grace period had expired was without the consensus of the parties, I would just leave it there.

27.  For the present application, W in her 2^nd Affirmation specifically referred to the deadlines for payment of the 44^th and 45^th instalments that they should be 1/3/2019 and 1/4/2019 respectively. I noticed that H in his Affirmation in opposition made no reply to or any comments upon those deadlines which W said should be the case. It was only when H’s Counsel in his Written Submissions said the 90-day grace period should have no bearing as to when the 44^th and 45^th instalments become due[15]. By making such submissions, it would tend to show that W had “delayed” for a further period of 90 days to assert her right of enforcement.

28.  With respect, I find it peculiar and uncommon for H’s Counsel to be in any position to make submissions on a point that H did not raise as an issue or even bothered to make any response or comments in his affirmation evidence. This was particularly alarming in this case since the parties had affirmatively restricted their stance only upon the affirmation evidence they filed. Had H’s Counsel wanted to bring up as an issue that the due dates for the 44^th and 45^th instalment should not be 1/3/2019 and 1/4/2019 as W had said, H must have first said so in his Affirmation in opposition before such submissions could be fairly made by his Counsel. Further, parties’ different views on the date(s) is purely a question of fact and, if raised as an issue, need to expressly said so in his/her affirmation evidence in the absence of any oral testimonies, and not through Counsel’s submissions.

29.  That said, on the evidence available and my reading of Recitals G and H, I find as a fact that those instalment(s) under the Consent Order, including the 44^th and 45^th instalments, only start to become due from the day following the last day of the 90-day grace period (emphasis added) for a particular instalment and not start to become due from the date specified under the column “Not earlier than” for that instalment.

30.  To exclude the 90-day grace period for working out when a particular instalment started to become due, as H’s Counsel so suggested, creates ambiguity in the meaning of Recitals G and H which must be taken together; and also provides uncertainty in the computation of time, be it for the purpose of Section 12 of the MPPO or otherwise. My finding as to uncertainty in computation of time was well supported when one looks at the “waiver” provisions within Recital H of any interests accrued if payment was made within the 90-day grace period. Such 90-day grace period with

no interest payable or accrued and without the need of any separate agreement of the parties, in my views, is to set a time limit for payment.

31.  The need to set a time limit for payment was obvious. The lump sum of 17 million was to be paid in the manner as per the schedule which ended up with 72 instalments with different amount per instalment of $80,000, $125,000, $200,000, $250,000, $290,000, $300,000, $330,000 and $375,000 for different period(s) of time spreading over 6 years. It was not by equal monthly (emphasis added) instalments as in most other cases. Interesting though, they are not fixed in any progressive ascending or descending amount at large. With such structured payment schedule and the qualification of payment date of “Not earlier than”, it is difficult if not impossible, to say actually which instalment and for what amount was due if a default of payment occurred. For example, an instalment payment expressed to be paid “not earlier than 1^st March 2022” without any limit on time means that it could be paid at any other time afterwards. Even if it was paid a year later on 1^st March 2023, that instalment could not be said to be in default !

32.  Time for payment of sums of money is always important. It must either be clear and specific or that it could be readily ascertainable. The day-to-day use of the term “on or before (date)” by lawyers is a classic example. This term pinpointed to the exact date by the use of the single word “on” and any other earlier date(s) by the words “or before”.

33.  In concluding this Issue (a), I find that the last day for payment (emphasis added) of the 44^th and 45^th instalments under Recital G must also take into account of the 90-day grace period provided under Recital H.

34.  Hence, I agree with W that they are 1/3/2019 and 1/4/2019 respectively.

Issue (b)

35.  H’s past payment(s) for the 17^th to 32^nd and 35^th to 42^th instalments were all made post (emphasis added) the 90-day grace period. H made no reference to those “late” payment(s) in his Affirmation in opposition or offered any explanation for the lateness whilst, on the other hand, he maintained that W’s delay for enforcing the 44^th and 45^th instalments should count from 1/12/2018 and 1/1/2019 (excluding the 90-day grace period).

36.  This must be wrong. As a matter of logic or principle, benefits and burden comes in pairs and parallel but not singly and one-sided. It is utterly wrong for one party to take all the benefits whereas the other party takes all the burden. Had H been able to take the benefit over and in excess of the 90-day grace period for making payment(s) as and when he so wishes, and also hassle-free of any accrued interest, how could he be able to fall back and insist upon the original scheduled earliest date for payment when it comes to consider how long had W been delayed in enforcement against him for his default in making the payment(s) ?

37.  On the undisputed evidence of W, part of the $290,000 for the 44^th instalment was paid by H by 4 separate payments of $50,000 each on 10/5/2019, 28/5/2019, 19/6/2019 and 2/7/2019, totalling $200,000, which is again long after the due date of 1/3/2019 so found by this Court[16].

38.  On this Issue (b), I find that H’s past payment(s), in the absence of any explanation for their lateness or evidence of parties’ consensus for the lateness, supported this Court’s finding on Issue (a) on computation of time, if such finding was not being too generous and favourable to H who had had the benefit and only paid the past instalment(s) after the respective 90-day grace period(s) had expired.

Issue (c)

39.  Given the finding for Issue (a), the first day when the 44^th instalment and 45^th instalment started to become due would then be 2/3/2019 and 2/4/2019 respectively.

40.  W produced a series of transcript of conversation starting from 30/11/2016 and ending on 6/8/2019[17] between her and one Mr. Edgar Chan as her exhibit “PKY-16” to her 2^nd Affirmation together with several related screenshots of pay-in slips. H did not dispute the accuracy of the contents. Mr. Edgar Chan was all along the person with whom W contacted and checked upon for H’s instalment payment(s). He was the accounting staff in H’s company. The gist of the conversation was all about W asking for payment of the instalment(s) at different times over the years. As can be seen, the last few pages of the transcript also covered the 4 payment(s) of $50,000 each for the 44^th instalment that H had paid[18].

41.  As can be seen, insofar as the 44^th instalment was concerned, at the very first line of the transcript of conversation dated 1/3/2019[19] started with W asking : “Edgar, 2月還未入票 ?”. Two days later on 3/4/2019 W asked : “Edgar, 這兩個月款項會幾時入到我戶口 ?”. On 17/4/2019 W asked : “早晨, 知道幾時可入票 ?”. On 2/5/2019 W asked : “明天入到票嗎 ?”. It goes without say that W was chasing up for defaulted payments.

42.  All of W’s questions were responded by Mr. Chan, back and forth. The gist of the answers was mostly on payment arrangement issues, logistic/accounting problem in H’s company, requesting extra time to pay and by separate payment(s) so on and so forth. Just to take a few out at random of the numerous answers by Mr. Edgar Chan back in 2016 and 2017 without going into each and every single question and answer, there are the following answers :

“On 30/11/2016 at 14:24:27 –	今日唔得, 無簽票, 聽日或後日會簽
On 29/12/2016 at 16:33:55 –	Sorry, 呢兩日應該唔得, 排左下星期二
On 3/1/2017 at 19:12:38 –	聽日先簽票
On 3/1/2017 at 19:15:27 –	今日趕唔切
On 3/1/2017 at 19:16:27 –	我聽早係深圳, 要下午
On 4/1/2017 at 16:40:42 –	sorry, 張票開左, 但我仲開緊個會, 今日入唔到, 聽朝入可以嗎?
On 25/1/2017 at 12:45:16 –	應該要年後呀
On 25/1/2017 at 12:56:57 –	老闆會來就會安排
On 25/1/2017 at 12:58:45 –	都有簽定票, 不過要預比其他數
On 1/3/2017 at 09:03:48 –	我安排聽日開票
On 3/3/2017 at 17:36:55 –	sorry ar, 數個度有d 問題, 可唔可以星期二入俾妳 ?
On 3/3/2017 at 17:51:26 –	好, 我同 Queenie 夾下, 妳今個月幾號找卡數 ?
On 3/3/2017 at 17:53:22 –	我想想辦法
On 7/3/2017 at 12:46:42 –	如果今日現金入住一半比妳先, 可以嗎
On 7/3/2017 at 12:57:21 –	好 那入左65000比你先
On 10/3/2017 at 15:59:14 –	我仲開緊個會, 如果我今日趕唔切入票比妳, 我星期一早上入現金比妳
On 1/4/2017 at 08:26:32 –	未呀, 如果老闆星期一係公司, 星期一入
On 1/4/2017 at 10:07:38 –	知道妳7號要找數, 所以會盡量7號前入票
On 3/4/2017 at 18:07:12 –	Sorry, 張票要星期三, 妳會唔會好趕 ? 入票可以 ?
On 4/5/2017 at 12:55:16 –	我都想同你講, 呢兩個星期因為假期, 我地聯邦單收款出現問題, 妳今個月條數可否下星期四才入現金比妳
On 4/5/2017 at 12:55:31 –	sorry呀
On 11/5/2017 at 16:28:26 –	我改左張票喇, 但我可唔可以先入75000比妳, 我聽朝再入5萬比妳”

43.  It is interesting to see that as early as 2016, stretching over to 2017, and also undisputedly from 2018 and then to 2019, H had been paying the instalments haphazardly rather than punctually despite the scheduled pattern of payment under the Consent Order.

44.  As for 44^th instalment due to be paid on 1/3/2019 (as found by this Court[20]), Mr Edgar Chan said :

“On 1/3/2019 at 17:59:18 -	係, 而家妳個數出數方面有D問題, 因為累積數太多, 審計方面有D 問題 (不是公司的支出, 沒有發票, 但又出左, 今個年度 因為大左好多), 所以要處理, 無辦法的話, 要過左3月31日先可以比(即𨒂到下年度先算), 要在update 妳, 將來都可能唔可以公司比妳, 要老闆比
On 3/4/2019 at 14:23:10 -	要15 號後, 我地趕係呢兩星期埋數
On 17/4/2019 at 09:06:49 -	sorry, 應該要月尾, 而家埋緊數, 要過埋個 audit
On 7/5/2019 at 08:40:07 -	我都希望妳明白, 現在老闆的意思還是會付清相關付項, 只是分長一點付, 實際所付的金額會比原有數多, 當然我明白妳可以從法律的程序追, 但我覺得這樣對雙方都不好, 再者如果妳追, 就變左直接追老闆, 我就唔方便再介入, 請再考慮一下, 謝謝
On 10/5/2019 at 17:53:32 -	今日入左5萬比妳, 今個月再安排5萬, 知道妳暫未同意, 但我仍每月先入5萬比妳 (這個是我可安排到的), 而由於3, 4月都無入, 所以5, 6 月我都會入10 萬比妳”

45.  On the question of delay, it must be considered against the historic background and all the circumstances in context, and not simply by focusing upon any single or isolated event. That said, what had actually happened in the past and after the 44^th and 45^th instalments had become due was important. Did W take no steps to follow up the arrears of the 44^th and 45^th instalments and thereby causing them to become “stale” ? Or, did she make any effort to follow up the matter although not by way of enforcement action but rather by a proven efficient and cost-effective method ?

46.  H’s Counsel referred me to a few cases in the Family Court where leave was refused. In the first case of 葉 訴 林 [2020] HKFC 175, the delay was about 28 months[21]. In the second case of 張 訴 郭 FCMC 1425/2009, the delay was 3 years[22]. In the third case of 柯 訴 謝 [2019] HKFC 71, the wife in that case filed the summons in November 2017 for leave to recover arrears due from December 2015 to November 2016, that is, the delay was between 12 to 24 months. Leave was, however, refused for the Court not accepting W’s reasons for the inactivity and not on the length of delay being long or excessive[23]. Hence, this case would be of relevance when considering whether W was able to come up with any “good reasons” or “special circumstances” rather than on the period of delay.

47.  In the Court of Appeal case of CSL v WWK, CACV No. 278/2003, leave was refused as the petitioner wife was able to manage herself well and had obtained gainful employment during the period when maintenance fell into arrears. She was found to have left the matter too late to claim for arrears in excess of 10 years[24].

48.  In the case of K v K, HCMC No.2/2004 where it was found that mere requests for payment with no action taken for sparing expenses of litigation could not constitute a good reason for failing to assert her rights nor could it give rise to any special circumstances.

49.  Both the CSL and K v K cases are binding upon me on the law. However, neither of them provided any guideline or time line of delay which would be taken as long or excessive so that leave should not be granted. Suffice is to say that whether a period of delay is long or excessive is always fact-sensitive and that the Court has a wide and unfettered discretion to make its decision with the aim and objective to achieve justice and fairness in the case.

50.  In Rayden and Jackson on Relationship Breakdown, Finances and Children, I find the following passages useful and instructive :

“23.66 There is conflicting case law as to whether permission may only be granted in ‘special circumstances’. However, the statute provides an unfettered discretion and it is suggested that the exercise of that discretion will come down to the facts of each case rather than the application of any particular test………

23.67 In considering the exercise of discretion the courts have highlighted the issues of the culpability of the debtor, the debtor’s means to pay, and any steps the creditor has previously taken to enforce the outstanding sums. In the recent decision of Arif v Anwar,…. [t]he court also noted in that case that there had been ‘no such significant change in the realities of the lives of the respective parties’ since the time of the original order ‘that would cause a court now to say that an order formerly made ought not now to be enforced’.”

51.  Now I will go to consider the period of delay.

52.  On 23/1/2020, W filed an ex parte application for leave to issue judgment summons for the balance of the 44^th instalment and the 45^th instalments. On that day, almost 11 months had passed after the 44^th instalment started to become due on 2/3/2019 and almost 10 months had passed after the 45^th instalment started to become due on 2/4/2019.

53.  On 5/6/2020, which was about 4 odd months later and this was presumably due to the General Adjournment Period (“GAP”) caused by the Covid-19 pandemic, this Court commented that a separate summons should be taken out for leave to enforce arrears due over 12 months.

54.  The Leave Summons was then issued on 18/11/2020, which is 5½ months later. It is plain and obvious that the general comments were just based upon the period of arrears stated by W in the absence of any adjudication over the precise period of arrears by the Court.

55.  Taking the 44^th instalment (balance) first, it started to become due on 2/3/2019. The 12-month period thus expired on 1/3/2020. Checking such expiry date against the Leave Summons date of 18/11/2020, it was around 8½ months late. Accordingly, the lateness for the 45^th instalment was about 7½ months late.

56.  If taking H’s last payment of $50,000 for the 44^th instalment on 2 July 2019, the 12-month period would then be expiring on 1 July 2020. Checking this expiry date against the Leave Summons date of 18/11/2020, it was only 4½ months late.

57.  In my decision, the delay for W to assert her right of enforcement for the 44^th (balance) and 45 instalments was not long or excessive.

Issue (d)

58.  It is trite that W, being the payee under the Consent Order, has the persuasive burden to establish “special circumstances” in that leave should be given for her to enforce arrears due over 12 months. In the case of Arif v. Anwar [2014] EWHC 4669, a case which was referred by W’s Counsel where leave was granted, it was said :

“8. ……..If such an application is made the court may refuse or grant leave as it thinks proper. It is accepted that this is a general provision unencumbered by the need to establish any special circumstances. However it is also accepted that the Wife bears a persuasive burden; that is to say, she must advance some reasons why the court should grant relief.”

59.  W in her 2^nd Affirmation provided the following 3 reasons under the sub-heading of “Special circumstances”[25].

60.  First, the arrears represented part of the agreed lump sum of 17 million in full and final settlement of her ancillary reliefs. She only agreed it to be paid by instalments was to enable H to be able to retain his business and assets. Secondly, there was no substantial delay for her to seek recovery of the 44^th and 45^th instalments given the fact that the Court registry had once been closed for the Covid-19 pandemic. Thirdly, she found it hard to believe that separate application had to be made for the arrears which was part of the agreed lump sum of 17 million agreed to be paid by H.

61.  Under Recital M(c) of the Consent Order, it was agreed and provided that 5 months of the rent of W’s place of residence at that time which was to be paid by xxxx 運輸有限公司should be offset by the instalments payable under Recital G. Further, under Recitals J and K, W was required to transfer all her interests and shares in xxxx 運輸有限公司and another company xxxx 物流有限公司to H within 30 days of signing the Consent Summons.

62.  H, in his Affirmation in opposition, did not dispute W’s reasons for the agreed lump sum of 17 million and why she also agreed it to be paid by instalments; nor had he complained that W did not transfer her shares and interest in the 2 companies. Hence, I accept W’s first reason that the 44^th and 45^th instalments were part of the agreed lump sum for settlement of her ancillary reliefs. To disallow W to seek recovery is akin to ‘reducing/varying’ the lump sum which, in all practical terms and effect, prejudiced her ancillary reliefs.

63.  As said, the period of delay was neither long nor excessive in the present case. I also accept W’s second reason.

64.  W’s third reason is purely a question of her understanding of the practice rules and procedure. It could not be any special circumstances against the operation of such rule.

Any Good Reasons/Special Circumstances ?

65.  H’s past pattern of payment of the other instalments for the lump sum since 2016, as revealed by the transcript of conversation between W and Mr. Edgar Chan, had not been satisfactory. Nonetheless, W would still get paid after chasing, albeit late, if she chose to wait for whatever reason or arrangement that Mr. Edgar Chan told her. She had had such experience of “chase-wait-then get paid” for almost 4 years by now since 2016. I am minded to say that such “chase-wait-then get paid” was a proven way (emphasis added) of following up unpaid arrears. It was undisputed that so far H had already paid 43 instalments.

66.  Unfortunately, it happened again with the 44^th instalment for $290,000 which became due on 1/3/2019. W chased and then get paid $200,000 (by 4 separate payments in May, June and July 2019) after having waited or condoned H’s usual pattern of delayed payment.

67.  Having said, I find the facts of this case in stark difference from those other run-of-the-mill cases where there was no such “chase-wait-then get paid” historic pattern of payment, whether it was for periodical maintenance payment or for lump sum payment by instalments.

68.  Given such background, I accepted that there are “good reasons” for W to wait beyond the 12-month period to assert her rights over the 44^th (balance) and 45^th instalments. She did chase, waited and then get paid the 4 separate payments of $50,000 each[26]. It was just unfortunate that the balance sum of $90,000 for the 44^th instalment this time, and also the 45^th instalment, did not come through whilst the 12-month period had already passed. It was neither fair to W nor correct for H to be able to take such technical point to avoid part of the lump sum which he had agreed.

69.  I am also satisfied that the circumstances that had arisen through H’s past pattern of payment are special in that leave for enforcement for payment(s) due over 12 months should be granted to W. For otherwise, W’s forbearance and tolerance would be unwarrantedly sacrificed to the prejudice and disadvantage of W. This is utterly unfair, unjust and must be wrong from any perspective.

Financial needs and means of the parties

70.  There are cross allegations between the parties.

71.  H claimed that W does not need the $380,000 arrears in question as she had accumulated wealth through sale of different landed properties between 2014 and 2019[27] and also managed well with her wealth. Besides and in addition, W had by now already received from him 7.25 million out of the 17 million lump sum[28].

72.  W claimed that H had the means and ability to pay the $380,000 arrears in question as his transportation business was very successful with net profits of over 30 million per year[29]. Besides, H’s transportation business also owned substantial assets of 120 to 130 medium goods vehicles, heavy goods vehicles and vans worth around 20 million in total[30]. There was also allegation that H siphoned his shares and interests in his business to their child and to Mr. Edgar Chan[31].

73.  Whilst parties’ needs and finances may be a relevant consideration for the exercise of discretion on this kind of application, this Court however could not make any findings of fact upon any of those cross allegations at their face value without the parties’ evidence and credentials being tested through cross examination.

74.  With Counsel’s concurrence of not arranging the parties to testify and be cross examined on their affirmation evidence, they are restricting their disputes in the present case over matters of procedural and technicalities rather than over any other factual matter.

75.  Hence, I decided not to venture into this area in the exercise of discretion on the granting of leave to W to enforce the 44^th (balance) and 45^th instalments, totaling $380,000.

Decision

76.  For all the above reasons, I decided that leave be granted to W to enforce the payment of $380,000 set out under the Schedule of the Leave Summons dated 18/11/2020.

Costs

77.  On the question of costs, I decided that H should bear W’s costs of this application, including all costs reserved (if any), to be taxed if not agreed.

78.  I also grant Certificate for Counsel.

Order

79.  I now grant the Order as follows :-

(a)  W do have leave to enforce payment of arrears as detailed in the Schedule attached to the Leave Summons dated 18/11/2020; and

(b)  H do pay W’s costs of this application, including all costs reserved (if any), to be taxed if not agreed.

80.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.