B, GGB aka N, GGB v. B, ND

FCMC 1410/2019

[2023] HKFC 16

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1410 OF 2019

____________________

____________________

-----------------------

D E C I S I O N
(PAYMENT OUT)

------------------------

Applications

1.  There are two applications before me, one from the Respondent (“the Husband”) and one from the Petitioner (“the Wife”).  They are:

(1)  The Husband’s summons dated 9 September 2022 (but only issued on 14 September 2022) in which he asked for a sum of GBP49,827 to be paid out to him from the escrow account held at his former solicitors Messrs. Oldham, Li & Nie (“the escrow account”) so that he could utilize such funds to engage another lawyer to represent him at the Case Management Hearing fixed on 25 November 2022 in this court (“CMH”);

(2)  The Wife’s summons dated 8 November 2022 in which she asked for the payment out of the following sums from the escrow account:

(i)    HK$79,600 per month being interim maintenance payable by the Husband for the children pursuant to a court order dated 15 October 2021 (“the Variation Order”), such payment to start from 1 January 2023 and thereafter on the 1^st day of each month until further order of the court;

(ii)   A sum of HK$217,052 (being HK$200,000 plus interest of HK$17,052) as legal costs provision pursuant to the Variation Order; and

(iii)  A sum of GBP 6,868.26 to settle the invoice of Savills in respect of the parties’ jointly owned property at 705 Halliday House, 2 Circus Road, London SW11 8EY (“the London Property”).

2.  On 8 November 2022, this court granted orders for the Husband’s summons to be dealt with on paper with some consequential directions.  On 11 November 2022, a letter was received from the Husband (dated 3 November 2022) in which he asked for, inter alia, the withdrawal of his applications and for an adjournment of the CMH. But since directions for paper disposal have already been given, the court gave further directions for the Husband to confirm his “withdrawal” and to notify Messrs Oldham, Li & Nie accordingly, failing which the court would proceed to deal with his summons on paper. No such confirmation was received from the Husband.

3.  On 6 December 2022, I have also given orders for the Wife’s summons to be dealt with on paper with consequential directions for the filing of affidavits and closing submissions. 

4.  Up to date, only the Wife has complied with the court’s directions on the filing of affidavits and closing submissions. It seems that the Husband has left Hong Kong for Thailand and he has not filed any affidavit in opposition, nor any closing submissions.

5.  I will now proceed to deal with the parties’ respective applications.

The Husband’s Summons

6.  The Husband’s summons is rather straight forward and could be dealt with summarily.  It is noted that the Husband has taken no active part in pursuing his summons after its issuance on 14 September 2022.  He has filed no affidavit in reply, nor any closing submissions.  Most important of all, he has stated in his letter dated 3 November 2022 (received on 11 November 2022) that he withdrew his application to seek payment out from the escrow account.  Under these circumstances, the only natural order to be made is for the Husband’s summons to be dismissed with costs to the Wife.

The Wife’s Summons

7.  The following facts are important for the determination of the Wife’s summons for payment out from the escrow account.  Currently, there is a sum of about HK$706,944.74 remaining in the escrow account which sum I believe was the balance of sale proceeds of some landed properties in the UK.

8.  On 15 October 2021, the court (before Deputy Judge Susan Wong) granted an order for the Husband to pay interim maintenance for the 2 children at the rate of HK$79,600 per month commencing from 1 September 2021 and thereafter on the 1^st day of each and every month until further order of the court.  In addition, the court also ordered the Husband to pay the Wife a sum of HK$200,000 within 2 months (i.e. on or before 14 December 2021) as legal costs provision.  There can be no dispute that the Husband has failed to pay the ordered sums, resulting in various court orders (by HH Judge Elaine Liu) for the settlement of the arrears of interim maintenance (but not including the legal costs provision) from the escrow account up to December 2022.  According to the Wife, the Husband continues with his default and the interim maintenance of HK$79,600 for January 2023 has not been paid.  The legal costs provision at HK$200,000 is also outstanding, with an updated accrued interest of HK$19,553 (calculated up to 3 January 2023). 

9.  According to the Wife, the parties jointly own the London Property and there are arrears of management fee in the sum of GBP 6,868.26.  The Husband did once propose to pay those management fees from the escrow account but later withdrew his proposal. Therefore, the Wife now asks for those arrears to be paid from the escrow account as well.

10.  Messrs. Oldham, Li & Nie has been served.  They adopted a neutral stance and indicated that they would comply with any court order on the release of funds from the escrow account.

11.  It is to be noted that the Husband has filed no affidavit in opposition, nor any submissions on why the Wife’s application should not be acceded to.  Under such circumstances, I see no reason why the funds in the escrow account should not be utilised to satisfy the court’s orders on interim maintenance and legal costs provision. Equally, there is no reason why those funds should not be utilised to pay the outstanding management fees which are after all the parties’ joint liabilities.

Orders

12.  Based on the above reasons, I hereby make the following orders:

For the Husband’s Summons dated 9 September 2022

(1)  The Husband’s summons dated 9 September 2022 (but issued on 14 September 2022) is dismissed.

For the Wife’s Summons dated 8 November 2022

(2)  The following sums are to be paid out from the escrow account held by Messrs Oldham, Li & Nie to the Wife:

(i)    HK$79,600 per month being interim maintenance payable by the Husband for the children pursuant to a court order dated 15 October 2021 (“the Variation Order”), such payment to start from 1 January 2023 and thereafter on the 1^st day of each month until further order of the court or the exhaustion of the funds in the escrow account;

(ii)   A sum of HK$219,553 (being HK$200,000 plus interest of HK$19,553 calculated up to 3 January 2023) as legal costs provision pursuant to the Variation Order; and

(iii)  A sum of GBP 6,868.26 to settle the invoice of Savills in respect of the jointly owned property at 705 Halliday House, 2 Circus Road, London SW11 8EY.

Costs

13.  Cost to follow event.  The Husband’s summons was dismissed whilst the Wife succeeded in her applications.  The Wife should be given the costs of both summonses, including all costs reserved (if any), on a party and party basis with such costs to be taxed if not agreed.

Representation: